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Constitutionalism and Conscientiousness: The Dignity of Objection to Military Service*

Published online by Cambridge University Press:  24 April 2015

Douglas Sturm
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Extract

Former President Carter's Presidential Proclamation ordering the resumption of registration for a possible draft provoked once again a question that has recurred throughout the history of the American republic: what right, if any, do persons conscientiously unable to participate in a military enterprise hav to be exempted from laws that would otherwise requir them to do so?

The question, at its profoundest level, touches on difficult issues of political and legal philosophy. On the one hand, war is the ultima ratio regnum. The presumption is that a nation will not mobilize its people for military effort unless vital interests are at stake and that the people are bound to support that effort with their energies and lives.

Type
Articles
Information
Journal of Law and Religion , Volume 1 , Issue 2 , 1983 , pp. 265 - 277
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1983

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Footnotes

*

This paper was presented at a symposium entitled “Perspectives on the First Amendment” sponsored by the University of Georgia Schools of Journalism and Law in April, 1981.

References

1. See, Presidential Proclamation No. 4771, 45 Fed. Reg. 45247 (July 2, 1980).

2. See U.S. v Kauten 133 F.2d 703, 708 (2d Cir. 1943).

3. See the contrasting opinions of Justices Douglas and Black and Justice Frankfurter in Board of Education v. Barnette, 319 U.S. 624 (1943).

4. See Kurland, P., Religion and the Law: of Church and State and the Supreme Court (1962)Google Scholar.

5. See McIlwain, C. H., Constitutionalism: Ancient and Modern (1958)Google Scholar; Sturm, , Constitutionalism: A Critical Appreciation and Extension of the Political Theory of C. H. McIlwain, 54 Minn. L. Rev. 215 (1969)Google Scholar; and Sturm, , Rule of Law and Politics in a Revolutionary Age, 51 Soundings 368 (1968)Google Scholar.

6. The passage is taken from Justice Brennan's dissent in Braunfeld v. Brown, 366 U.S. 599, 611 (1969).

7. The Secretary of War at the time was the Honorable Newton D. Baker. He is quoted in Conscientious Objection 55, Selective Service System Special Monograph no. 11 (1950) [hereafter cited as SSSSM].

8. For renditions of this history, see SSSSM, supra note 7; Conscience in America: A Documentary History of Conscientious Objection in American, 1957-1967 (Schlissel, L. ed. 1968)Google Scholar; and Sibley, M.Q. and Jacob, P.E., Conscription of Conscience: The American State and the Conscientious Objector, 1940-1947 (1952)Google Scholar.

9. SSSSM, supra note 7, at 30-38.

10. Harbauoh, W. H., Lawyer's Lawyer: The Life of John W. Davis 281 (1973)Google Scholar.

11. The two proposals, although separate, were essentially related given usage of the phrase “liberty of conscience” at the time with reference to conscientious objection to the bearing of arms. See Schlissel, supra note 8, at 35 and 36. But see Morgan, R. E., The Supreme Court and Religion 23–24, 26 and n.35 (1972)Google Scholar.

12. Justice Clark refefs to “the historic position of our country on this issue since its founding” in United States v. Seeger, 380 U.S. 163, 180 (1965).

13. Schlissel, supra note 8, at 55. Thus as so often happens the law in practice did not conform exactly to the law on the books.

14. See Potter, , Conscientious Objection to Particular Wars, in Religion and the Public Order Number Four 44 (Giannella, D. A. ed. 1968)Google Scholar.

15. Sibley and Jacob, supra note 8, at 68.

16. Justice A. Hand, for the Second Circuit, took the broader way in United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943), whereas Justice Stephens for the Ninth Circuit, countered with the narrower view in Berman v. United States, 156 F.2d 377, 380-381 (9th Cir. 1946). But see the dissent by Justice Denman in Berman v. United States. 156 F.2d at 382.

17. United States v. Seeger, 380 U.S. 163, 166 (1965).

18. Welsh v. United States, 398 U.S. 342, 343 (1970). In a concurring opinion, Justice Harlan declared, “The common denominator must be the intency of moral conviction with which a belief is held.” Id. at 358.

19. See Konvitz, M. R., Religious Liberty and Conscience: A Constitutional Inquiry 73–106 (1968)Google Scholar. Konvitz sees the Seeger case as implying what the Supreme Court later did in Welsh v. United States, 398 U.S. 342 (1970). That is, freedom of religious exercise came to be interpreted as a form of a broader freedom of conscience.

20. Harbaugh, supra note 10, at 281-297.

21. United States v. Macintosh, 283 U.S. 605, 622 (1931).

22. Schlissel, supra note 8, at 15. See also Note: The Conscientious Objector and the First Amendment: There but for the Grace of God. … 34 U. Chi. L. Rev. 79 (1966)CrossRefGoogle Scholar and Sweeney, , Conscientious Objection and the First Amendment, 14 Akron L. Rev. 71 (1980)Google Scholar. Justice Harlan, in his concurring opinion in Welsh v. United States, 398 U.S. 342, 357 (1970), declared, “Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for consciention objectors.”

23. See Mansfield, , Conscientious Objetion—1964 Term, in 1965 Religion and the Public Order 67 (Giannella, D.A. ed. 1966)Google Scholar.

24. Galanter, , Religious Freedom in the United States: A Turning Point?, 1966 Wis. L. Rev. 217 (1966)Google Scholar.

25. Reynolds v. United States, 98 U.S. 145, 164 (1878).

26. The formulation is that of D. Manwaring, quoted in Galanter, supra note 24, at 235. See also Morgan, supra note 11, at 41 and 54 n.29.

27. Cantwell v. Connecticut, 310 U.S. 296 (1940).

28. Board of Education v. Barnette, 319 U.S.. 624 (1943). See Kurland's characterization of Justice Frankfurter's response, supra note 4, at 44-47.

29. Galanter, supra note 24, at 241.

30. Sherbert v. Verner, 374 U.S. 398 (1963).

31. In re Jenison, 375 U.S. 14 (1963).

32. Wisconsin v. Yoder, 406 U.S. 205 (1972). The formulation captures what has become a two-fold test for governmental interference in the exercise of religion: (1) compelling state interest and (2) no alternative. See Pfeffer, L., God, Caesar, and the Constitution: The Court as Referee of Church-State Confrontation 35–36 (1975)Google Scholar.

33. See Flowers, , The Supreme Court's Interpretation of the Free Exercise Clause, 49 Religion in Life 322 (1980)Google Scholar and Thompson, , Chipping Away: The Erosion of Religious Liberties in America, 97 The Christian Century 10 (1980)Google Scholar.

34. See Stone, , The Conscientious Objector, 21 Colum. U. Q. 253, 268 (1919)Google Scholar and Galanter, supra note 24, at 217f, 231ff, and 247.

35. Stone, supra note 34.

36. Clark, , Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 345–352 (1969)CrossRefGoogle Scholar.

37. Id. at 356.

38. The opposing opinions of Justices Stewart and Harlan in Sherbert v. Verner, 374 U.S. 398 (1963), present the puzzle in stark fashion. To Justice Stewart, “the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief.” On that basis, he would overrule the modern tendency of the Court to construe the Non-Establishment Clause as requiring government to be blind to the “religious beliefs and traditions of the people.” Id. at 415-416. Justice Harlan, on the other hand, argues that the non-establishment clause prohibits the Court from mandating exemptions on strictly religious grounds although it may not in all cases prohibit a legislature from accommodating religious groups in particular circumstances such as that before the Court in this case. Id. at 422.

39. Schlissel, supra note 22.

40. For a description of this struggle as it pertains to judicial interpretations of Title VII of the Civil Rights Act of 1964 as amended in 1972, see Nixon, , Your Religion or Your Job, 76 Liberty: A Magazine of Religious Freedom 23 (1981)Google Scholar.

41. Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

42. Howe, M.D., The Garden and the Wilderness: Religion and Government in American Constitutional History 19 (1965)Google Scholar.

43. Freeman, , A Remonstrance for Conscience, 106 U. Pa. L. Rev. 806, 813 (1958)CrossRefGoogle Scholar.

44. Griswold v. Connecticut, 381 U.S. 479 (1965).

45. Konvitz, supra note 19, at 105.

46. Stone, supra note 34, at 269. See also Regan, R.J., Private Conscience and Public Law: The American Experience 185–186 (1972)Google Scholar.

47. Regan, supra note 146, at 231.

48. Mansfield, supra note 23, at 20; see also 10, 29, 31, 33-34. Italics added. A similar understanding of conscientiousness appears in Sibley, M.Q., The Obligation to Disobey: Conscience and the Law 17–18 (1970)Google Scholar.

49. See Sheffer, , The Free Exercise of Religion and Selective Conscientious Objection: A Judicial Response to a Moral Problem, 9 Cap. U. L. Rev. 7 (1979)Google Scholar.

50. See A Conflict of Loyalties: The Case for Selective Conscientious Objection (Finn, J. ed. 1968)Google Scholar; Rohr, J.A., Prophets without Honor: Public Policy and the Selective Conscientious Objector (1971)Google Scholar; and Greenawalt, , All or Nothing at All: The Defeat of Selective Conscientious Objection, Sup. Ct. Rev. 31, (Kurland, P. ed. 1971)Google Scholar.

51. Gillette v. United States, 401 U.S. 437 (1971) and Negre v. Larsen, 401 U.S. 437, 466. See Meikeljohn, D., Conscientious Objection in the Supreme Court: Welsh and Gillette, 8 Cum. L. Rev. 1 (1977)Google Scholar: “The logic of the Welsh opinion … compelled acceptance of conscientious objection to a particular war.”

52. Regan, supra note 46, at 43.

53. United States v. Sisson, 297 F. Supp. 902, 908 (1969).

54. Id. at 911.

55. See Rohr, supra note 50, at 148-165.

56. See Sibley, Dissent: The Tradition and Its Implications, in J. Finn, ed., supra note 50, at 133-136.

57. Morgan, supra note 11, at 209.

58. Rule of Law is used here in the sense employed by the International Commission of Jurists. For an interpretation of the theoretical implications of the work of the ICJ, see Sturm, , Rule of Law and Politics, 51 Soundings 368 (1968)Google Scholar.

59. Sherbert v. Verner, 374 U.S. 398, 413 (1963).

60. Rodes, , Sub Deo et Lege: A Study of Free Exercise, in Religion and the Public Order Number Four 26 (Giannella, D. ed. 1968)Google Scholar

61. Cahn, E., The Moral Decision 178 (1955)Google Scholar.

62. See Mansfield, supra note 23, at 38-39.

63. Strauss, L., Natural Right and History 134 (1953)Google Scholar.

64. See Freeman, supra at note 43, at 827-830.