Military Service and the Founding Fathers

Neither viewpoint is exactly true. What is certain is that as long as recruiting continues bad and the war goes on, the Army's predicament will only worsen.

Our purpose here, however, is not to argue for or against the war, or for or against the draft. Our purpose is to provide a bit of historical context for assessing the whole relationship between citizenship and military service.

Twenty years ago, Philip Gold, a historian, defense analyst and former Marine, published "Evasions: the American Way of Military Service." His book in progress, "Gone for Soldiers," revisits this issue. One thing he feels is much in need of revisiting: the Founding Fathers' understanding of military service.

To the Founders, military service was both an obligation and a right of citizenship. It was also a profound test of the virtue of the citizenry. A people unwilling to bear arms in the common defense was not a people fit for republican self-government.

However, the Founders never intended that this right and obligation should provide the federal government with a blank check on the lives of the citizens. The structure they set up does the exact opposite.

According to Gold, the Founders derived their understanding from both tradition and experience. From the Greeks and Romans through the Middle Ages, custom and law held that a citizen or free subject had an unlimited obligation to participate in homeland defense – but in comparison only a limited obligation, and sometimes no obligation at all, to participate in "wars of choice" beyond borders.

This was true throughout the pre-Revolutionary War period. Every colony save Quaker Pennsylvania considered virtually all adult (back then, free white male) members as part of the "universal" or "unorganized" militia. Some would join the organized militia, assembling periodically to drink, drill, tell stories, drill, then drink some more. For extended or distant campaigns, a special volunteer militia would usually be raised.

The Revolutionary War demonstrated that the militia had limited value against regular armies. If the Founders clung to this ideal, it was not because they didn't learn this hard lesson. Nor was it merely a paranoid fear of "standing armies" and "men on horseback."

Rather, they understood defense to be a continuum, with individual and local self-defense against crime and disorder at one end, proceeding to defense against insurrection and invasion, thence to foreign wars of choice conducted by the federal government. The citizen-soldiery could function across this entire spectrum while maintaining a precious nexus between government and citizenry: The soldiers would be available, but the reasons for fighting had to be sufficient to convince the citizens before they were called upon to be soldiers.

The Constitution nowhere mentions federal conscription, although "The Federalist" and a century's worth of Supreme Court decisions affirm that conscription is a legitimate aspect of providing for the common defense.

However, this original omission can't be understood without reference to the Militia Act of 1791. This legislation, ancestor of the present National Guard system, mandated universal obligatory service at the state level, with state forces available to the federal government in time of specific emergency. All else was to be handled by the standing army or by volunteer forces raised for a clear and limited purpose.

"That's the vital nexus between the citizenry and the government in this matter," says Gold. "An absolute obligation to serve, but not to serve for any and all reasons. This nexus has a moral as well as a legal dimension. Things that are legal are not always moral or wise. Faith can be shattered in many ways."

Vietnam, according to Gold, destroyed the nexus between citizenship and conscription that had existed since World War II. America assumed, wrongly, that draftees could be sent anywhere to do anything. And now Iraq has destroyed the nexus between obligation and the National Guard and reserves in the same manner. While conscript and reserve forces must be available in extremis, they cannot be used and overused, year after year, militarily or morally.

Not without the consent of We the People - a consent that must go much deeper than opinion polls or congressional resolutions, if it is to prevail.

It's time to reassess who we are as a people and where we are going as a nation. If we don't know where we're going, all roads will take us there.

Robert J. Cihak, M.D., is a Senior Fellow and Board Member of the Discovery Institute and a past president of the Association of American Physicians and Surgeons. Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues.

Contact Drs. Glueck and Cihak by e-mail.

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