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Domestic Policy:
Military Conscription
February 7, 1973
Congressional Record - Senate: Pages 3,788 - 3,793
By Mr. HATFIELD:
S.J. Res. 54. A joint resolution repealing the Military Selective Service Act of 1967. Referred to the Committee on Armed Services.
S.J. Res. 55. A joint resolution proposing an amendment to the Constitution of the United States with respect to the conscription of persons for service in the military forces. Referred to the Committee on the Judiciary.
REPEAL OF THE SELECTED SERVICE SYSTEM
Mr. HATFIELD. Mr. President, I send to the desk two pieces of legislation relating to the abolition of the Selective Service System.
In his Inaugural Address on January 20, President Nixon declared that:
"We stand on the threshold of a new era of peace in the world."
Seven days later, American involvement in the Vietnam War ended and cease-fire was declared. And now perhaps we do have the chance to achieve a “generation of peace.” Why then should we enter this new era of peace with an institution that exists to serve the ends of war? The President has also said:
"Unless we in America work to preserve the peace, there will be no peace."
Then why should our work for peace be impeded by the continued existence of the Selective Service System, particularly when there is no longer any need for a draft? If we are to begin the works of peace, then let the task begin with the dismantling of this institution.
If we are to have peace, if, as Secretary of Defense Laird says, we are to have an all-volunteer force by the end of fiscal year 1973, then we no longer need the Selective Service System. From a broader perspective, I believe that an institution that conscripts men against their will to prepare them for war has no place in a free society that is working for peace.
It is particularly appropriate to examine the basic assumptions of the Selective Service System now that our involvement in Vietnam is over and the commitment to a volunteer army has been made. But whether or not this country is engaged in war, a compulsory draft is alien to our principles of freedom.
As Senator ROBERT TAFT said:
"Military conscription is far more typical of totalitarian nations than of democratic nations. It is absolutely opposed to the principles of individual liberty, which have always been considered part of American democracy."
I would say that those principles are not merely a part of our democracy, but its very foundation.
And yet, looking over the record of the draft debates since World War II, I find very few statements dealing with the basic assumptions of a peacetime military draft, its domestic and foreign implications, and, most importantly, its implications for the individual in our society. Even during the 1971 debates in the House and the Senate, when extended debate created a 5-month period during which the President did not have authority to induct men into the Armed Forces, these questions were hardly raised.
Instead, the focus was on such issues as the needed manpower for our active duty forces, the quality of men entering the Armed Forces, the racial mix, the economic mix, our reserve strength, medical facilities and personnel, and combat arms manpower requirements. All of these are important questions. However, they do not go to the root of the problem.
The central issue is the meaning of a free society and the institutions we create to insure the maximum freedom of choice for each individual. This, coupled with a deep distrust of centralized governmental power, were the cornerstones of our Declaration of Independence and the Constitution. The Selective Service System is a prime example of centralized governmental power that severely limits an individual’s freedom, for it can take him from his home and against his will place him in the Armed Forces under circumstances where he may well lose his life.
In essence, conscription is a form of involuntary servitude. We theoretically abolished slavery after the War Between the States. That form of slavery was a form of economic servitude. But we have subsequently instituted an even more onerous form military conscription - and rationalized it by saying it would enhance our freedoms at home and enable us to create freedom abroad. But we cannot try to defend freedom at home or create it abroad by taking it away from our own citizens. We cannot export what we do not have.
To attempt to do so is a contradiction of our 200 year history as a free nation. Too few of our citizens seem to remember that it was conscription that bought many of our original settlers to this land and was a major factor in precipitating two of our earliest wars - the Revolutionary War and the War of 1812.
To show the degree of confusion - and unfortunately ignorance - surrounding the issues involved, we hear such phrases as "voluntary draft," "national obligatory service," and the like. But this is the language of totalitarianism. It is a form of blackmail putting a gun to a person's head and saying he has a "free choice" to do what he deems best. What we have done is continue the rhetoric of democracy and republicanism but have changed the definitions to apply to institutions that render them nearly meaningless. What is most tragic however is that this situation seems to attract little attention, let alone public outcry.
Now that we are paying first-term enlistees a wage comparable to what they could be earning in the civilian sector, we no longer need the draft to meet our military manpower requirements. Consequently, attention has focused on the need of the President to have the authority to induct men into the Armed Forces. This has been the focus of the Senate and House debates for the past 2 decades.
Clearly there is no need for this authority. President Nixon himself has asserted this in recent years, beginning with his campaign in 1968. If there is not any need for the President to have the authority to induct men into the military, then I believe there is no reason why the draft structure should remain. We should take legislative action to return us to the traditions of peacetime America. Therefore, I am introducing legislation to repeal the Military Selective Service Act, thus dismantling the Selective Service System.
The ability of our Armed Forces to react quickly in time of danger has never depended upon the draft. It is impossible to do so, due to the time required to induct, train, and transport a man to the danger area. The draft has been used to sustain and gradually build up the active duty forces. Our policy has always been, and the realities of manpower development dictate, that the active duty forces, then the reserves, and then draftees would be used in time of danger.
This is precisely what former Secretary of Defense Laird repeated time and again. Whether or not the draft is on a standby basis, our ability to adequately rapidly meet a threat would not be hampered. The time to set up a system, give physical examinations and transport the men to their training stations would be virtually the same with or without a draft system continuing on a standby basis. The essential question, then, is why pay the money for it? There is simply no reason.
There is some indication that the administration is also aware of this fact. The proposed budget for fiscal year 1974 requests a $55 million appropriation for the Selective Service System, a one-third reduction below the fiscal year 1973 request.
There are also reports of plans to register only 100,000 men each year, with no physical examinations, no transporting of men to examining centers, no transporting of men to induction centers.
I cannot see any way in which this will help our defenses. To spend $55 million, for this purpose is not only a waste of money but counterproductive. In the remote chance that the Nation decides a draft is needed sometime in the future we can certainly set up a conscription system, register men, give physical examinations, train and transport them in virtually the same time as it would take if we continued limited registration. We were able to do so in 1917. Surely now, with our advanced technology, we could do so just as easily.
The actual life and death alternatives faced by a young man going into the Armed Forces during a time of war or national emergency is a most demanding personal question which each individual has to make. The alternatives are even more profound when a man is faced with induction during peacetime, when he could be drafted involuntarily and perhaps sent anywhere in the world to participate in a conflict about which he may have had no information previously.
I am therefore introducing another bill besides the repeal legislation. This is a constitutional amendment which would require a national referendum within 30 days after a request by the President to set up a draft system and induct men into the Armed Forces.
A national referendum would not only be consistent with our principles of democracy, it would strengthen them by giving the people more power to decide in what ways they will permit the Government to partially control their lives. This greater degree of involvement and responsibility for the people will serve to revitalize our commitment to democracy, and make us a stronger nation. To quote again from President Nixon’s inaugural address:
"A person can be expected to act responsibly only if he has responsibility. This is human nature. So let us encourage individuals at home and abroad to do more for themselves, to decide more for themselves … Government must learn to take less from people so that people can do more for themselves."
I agree. The Government must learn to take less from the people, for the increase in recent years of street demonstrations and other forms of extra-electoral dissent indicate that the present system is not responding to the needs of the people. Our Founding Fathers foresaw the possibility of the republican structure becoming unrepresentative. James Madison’s Federalist Paper No. 10 held that a republic was preferable to a pure democracy only so long as the representatives were wise and judicious men:
"Men of facetious tempers, of local prejudices, or sinister designs, may, by intrigue by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people."
Madison noted that the final defense against such legislative abuse was the people. A national referendum such as I propose is consistent with this notion and would act as a check to the system when it fails to be responsive to the people’s needs.
Since there may be occasion when there is not time to call for a national referendum on this question, I have made provision in the constitutional amendment that in case of invasion the President can request the authority from Congress. The authority would continue until the statute expired or until the Congress repealed the law.
The method of referendum is not an untried panacea, since it has been successfully implemented in this Nation’s various States, as well as in Switzerland. Certainly a referendum could be used on the issue of military conscription, a question of great importance to every member of our society.
In the late 1930's Representative Louis Ludlow of Indiana proposed a constitutional amendment giving the people the sole power by a national referendum to declare war or to engage in war outside of the Western Hemisphere, except in the event of actual invasion of the United States. In 1938 the Ludlow amendment failed on a motion to discharge it from the Rules Committee by a vote of 188 to 209, after the intervention of President Franklin D. Roosevelt against the proposal. In the 75th Congress, Representative Hamilton Fish Jr. introduced House Joint Resolution 576 providing for a referendum on military conscription for service overseas. In the same Congress, then Representative WARREN G. MAGNUSON introduced a joint resolution providing for a referendum on certain methods of warfare.
Mention can also be made of Senator Kenneth Champ Clark of Missouri, who introduced in the Senate a resolution providing for a referendum on the question of war and military conscription for service abroad. Further, in the 75th Congress Senators La Folette of Wisconsin, Bone of Washington, Capper of Kansas, Clark of Missouri, Donahey of Ohio, Frazier of North Dakota, Hitchcock of South Dakota, Lundeen of Minnesota, Murray of Montana, Nye of North Dakota, Shipstead of Minnesota, and Wheeler of Montana are joined in proposing a constitutional amendment for a. referendum on war.
These are but a few examples of earlier proposals for national referendums on important issues. It is worth noting that most of these proposals came during the Populist-Progressive era, another time when there was great concern about the Government's responsiveness to the people. Therefore, my proposal for a national referendum on the draft is not a radical new departure, but an effort that has traditionally been made when the Federal Government has seemed to escape control by the people.
We are all aware of the way in which the executive branch of Government has usurped the Congress proper constitutional responsibilities for committing the Nation to war. The restoration of the intended constitutional balance requires strong initiatives. This is why I make such a proposal.
A national referendum would allow for greater congressional participation in a domestic question that greatly affects our foreign relations. If freedoms are taken away even temporarily, the Congress and the people should participate in the decision making process to the greatest extent possible. For as Benjamin Franklin said:
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
I ask unanimous consent that the text of these two pieces of proposed legislation be printed at this point in the RECORD.
I also ask unanimous consent that a study prepared by the Library of Congress on the Ludlow amendment be printed in the RECORD following these two joint resolutions.
There being no objection, the joint resolutions were ordered to be printed in the RECORD, as follows:
S.J. RES.54
Joint resolution repealing the Military Selective Service Act of 1967
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Military Selective Service Act of 1967, as amended, is repealed effective June 30, 1973.
S.J. RES. 55
Joint resolution proposing an amendment to the Constitution of the United States with respect to the conscription of persons for service in the military forces.
Resolved by the Senate and House of Representatives of the United State of America in Congress assembled, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution if ratified by the legislatures of three-fourths of the several States within seven years after its submission to the States for ratification:
"ARTICLE -
"SECTION 1. Notwithstanding the provisions of section 8 of Article I of this Constitution relating to the authority of the Congress to raise and support Armies and except as provided in section 4 of this article, the Congress shall enact no law providing for the involuntary induction of persons into the military forces unless the enactment of such a law has been approved by a majority of the electors of the United States voting in a national referendum to determine whether the people of the United States favor such a law.
"SEC. 2. Whenever the President determines that, because of national security reasons, a law should be enacted authorizing the involuntary induction of persons into the military forces of the United States, he shall issue a proclamation to that effect, and on a day specified by him at least thirty days, but not more than ninety days after the issuance of such proclamation a special election shall be conducted in such manner as the Congress may prescribe by law to determine whether the people of the United States favor the enactment of a law authorizing involuntary induction of persons into the military forces. All persons qualified to vote for the electors of the President and Vice President shall be eligible to vote in any such election. If a majority of the persons voting in such election vote in favor of the enactment of such a law that Congress may enact such a law within one year after the date of the special election.
"SEC. 3. Whenever the Congress has enacted a law authorizing the involuntary induction of persons into the military forces of the United States following approval of such action by a national referendum and the authority under such law subsequently terminates, the Congress may not thereafter enact a new law providing for involuntary induction except pursuant to another national referendum approving enactment of such a law. Nothing herein shall limit the authority of the Congress to extend the time period of any such law if the induction authority under such law as originally enacted or amended has not expired.
"SEC. 4. The foregoing provisions of this article shall not apply to the authority of the Congress to enact a law providing for the involuntary induction of persons into the military forces of the United States to repel an actual invasion of the United States.
"SEC. 5. The Congress shall have the power to implement the provisions of this article by appropriate legislation."
THE LUDLOW AMENDMENT
During the first quarter of the 20th Century three new instruments of government rose to prominence in American politics. These instruments were the initiative, the referendum, and the recall.
South Dakota, in 1898, was the first state to adopt the initiative and referendum as instruments of state government. Since then, eighteen more states have adopted similar legislation, the last to do so being Massachusetts in 1918. Maryland and New Mexico have the referendum only.
Many proposals to adopt the initiative and/or referendum were made to Congress during the beginning of the century, but interest on such legislation diminished considerably following 1920.
Proposals for legislation providing for a national referendum on specific issues, however, have been made from time to time ever since. Prior and following World War I proposals for legislation providing for a referendum on war were a perennial feature or Congress. The most persistent and nearly successful attempt towards the adoption of a constitutional amendment for a referendum on war was made from 1936 to 1939. Representative Louis Ludlow of Indiana spearheaded the movement for such an amendment. Congressman Ludlow introduced to the 74th Congress (1st session) H.J. Res. 89, 159, and 167. These resolutions proposed an amendment to the Constitution of the United States with respect to the declaration of war and the taking of property for public use in time of war.
Representative Hamilton Fish, Jr., of New York introduced H.J. Res. 168 which provided for a popular referendum on war.
In the Senate, Senator Marvel Logan of Kentucky introduced S.J. Res. 7 which would give the people of the United States power to veto a declaration of war. All these resolutions died in committee.
Congressman Ludlow introduced H.J. Res. 2 and 199 during the first session of the 75th Congress and Congressman Fish introduced H.J. Res. 63. These resolutions were in substance similar to the ones introduced during the previous Congress. Representative Francis H. Case of South Dakota introduced the so-called "Unknown Soldier” amendment which would give to the people the right to declare war.
During the second session of the 75th Congress the following resolutions were introduced:
S.J. Res. 218 (Senator Robert M. La Follette, Jr., of Wisconsin) proposing an amendment to the Constitution to provide for a referendum on war.
S.J. Res. 221 (Senator Joel Bennett Clark of Missouri) providing for a referendum on war and conscription of citizens for military duty abroad.
H.J. Res. 498 (Representative William A. Ashbrook of Ohio) providing for a referendum to limit conscription and undeclared war.
H.J. Res. 502 (Representative Edward C. Eichter of Iowa) providing for a referendum on war.
During the third session of the 75th Congress Senator La Follette of Wisconsin introduced for himself and for Senators Homer T. Bone of Washington, Arthur Capper of Kansas, Joel Bennett Clark of Missouri, Alvin V. Donahey of Ohio, Lynn JL Frazier of North Dakota, Herbert B. Hitchcock of South Dakota, Ernest Lundeen of Minnesota, James E. Murray of Montana, Gerald P. Nye of North Dakota, Henrik Shipstead of Minnesota, and Burton K. Wheeler of Montana, S.J. Res. 270 proposing an amendment to the Constitution for a referendum of war.
Representative Warren G. Magnuson of Washington introduced H.J. Res. 565 providing for a referendum on certain methods of warfare.
Congressman Fish introduced H.J. Res. 576 providing for a referendum on draft for services overseas.
On January S, 1938, President Franklin Delano Roosevelt in a letter to the Speaker of the House of Representatives, William B. Bankhead, opposed the Ludlow amendment and other similar resolutions as “impracticable in its application and incompatible with our representative form of government.”
Following a reading of this letter on the floor, the House defeated a motion to discharge the Committee on Rules from further consideration of the bill by a vote of 188 to 209, although previously 218 members had signed a discharge petition.
During the 76th Congress another attempt was made to bring about passage of the Ludlow amendment.
Congressman Ludlow introduced H.J. Res. 89. The text of the resolution was as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein) that the following article is proposed as an amendment to the Constitution or the United States, which shall be valid to all intents and purposes as a part of the constitution when ratified by convention in three fourths of the States as provided in the Constitution:
"ARTICLE –
"SECTION 1. Except in case of invasion by armed forces, actual or immediately threatened by an approaching military expedition, or attack upon the United States or its Territorial possessions or by any non-American nation against any country in the Western Hemisphere, the people shall have the sole power by a national referendum to declare war or to engage in warfare overseas. Congress, when it deems a national crisis to exist in conformance with this article, shall by concurrent resolution refer the question to the people.
"SEC 2. Congress shall by law provide for the enforcement of this section.
"SEC 3. This article shall become operative when ratified as an amendment to the Constitution by convention in the several States as provided in the Constitution."
Senator La Follette introduced for himself and for Senators Bone of Washington, Capper of Kansas, Clark of Idaho, Clark of Missouri, Donahey of Ohio, Frazier of North Dakota, Lundeen of Minnesota, Murray of Montana, Nye of North Dakota, Shipstead of Minnesota and Wheeler of Montana, S.J. Res 84. The text of the resolution was as follows:
Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as a part of the Constitution when ratified by the legislatures of three-fourths of the several States.
"ARTICLE -
"SECTION 1. Except in case of invasion by armed forces, actual or immediately threatened by an approaching military expedition, or attack upon the United States or its Territorial possessions or by any non-American nation against any country in the Western Hemisphere, the people shall have the sole power by a national referendum to declare war or to engage in warfare overseas. Congress, when it deems a national crisis to exist in conformance with this article, shall by concurrent resolution refer the question to the people.
"SEC 2. Congress shall by law provide for the enforcement of this section.
"SEC 3. This article shall become operative when ratified as an amendment to the Constitution by convention in the several States as provided in the Constitution."
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