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“The War Power Is Not a Blank Check”: The Supreme Court and Conscientious Objection, 1917–1973

  • Megan Threlkeld (a1)

Abstract:

This article examines the Supreme Court’s role in the development of federal conscientious objector policy in the twentieth century. Focusing on two key periods—the three years following the end of World War II, and the era of the Vietnam War—I argue that the policy’s evolution was more complex than previous studies have indicated, and that the Court’s changing attitudes toward conscientious objection can be traced to the justices’ increasing but irresolute concern for civil liberties. By the early 1970s, the Court was interpreting federal statutes much more broadly than Congress ever intended, but the justices remained divided over just how broad those interpretations should be. While the end of the draft rendered the question of compulsory military service moot, the Court’s failure to arrive at a clear position on conscientious objection has had lasting implications on other issues.

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Copyright

Footnotes

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For their helpful feedback on various drafts of this article, I am grateful to Trey Proctor, Adam Davis, Hoda Yousef, Julie Mujic, Anthony DeStefanis, and the anonymous reviewers for JPH.

Footnotes

References

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NOTES

1. Estep v. United States, 327 U.S. 114 (1946) at 132. The term “war power” most often refers to Clause 11 of Article 8, which gives Congress the power to declare war, but it also encompasses Clauses 12 and 13, to “raise and support” an army and navy. U.S. Const. art. I, § 8, cl. 11–13.

2. For examples of the former, see Kohn, Stephen M., Jailed for Peace: The History of American Draft Law Violators, 1658–1985 (Westport, Conn., 1986); Baskir, Lawrence M. and Strauss, William, Chance and Circumstance: The Draft, the War, and the Vietnam Generation (New York, 1978); Schlissel, Lillian, Conscience in America: A Documentary History of Conscientious Objection in America, 1757–1967 (New York, 1968); Stewart-Winter, Timothy, “Not a Soldier, Not a Slacker: Conscientious Objectors and Male Citizenship in the United States during the Second World War,” Gender & History 19, no. 3 (November 2007): 519–42; Maxwell, Donald W., “‘These Are the Things You Gain If You Make Our Country Your Country’: U.S.-Vietnam War Draft Resisters and Military Deserters and the Meaning of Citizenship in North America in the 1970s,” Peace & Change 40, no. 4 (October 2015): 437–61; and Moroi, Yuichi, Ethics of Conviction and Civic Responsibility: Conscientious War Resisters in America During the World Wars (Lanham, Md., 2008). For examples of the latter, see Flynn, George Q., The Draft, 1940–1973 (Kans, Lawrence., 1993); Krehbiel, Nicholas A., General Lewis B. Hershey and Conscientious Objection During World War II (Columbia, Mo., 2011); Jacobs, Clyde Edward and Gallagher, John F., The Selective Service Act: A Case Study of the Governmental Process (New York, 1967); Marmion, Harry A., Selective Service: Conflict and Compromise (New York, 1968); Chambers, John Whiteclay, Draftees or Volunteers: A Documentary History of the Debate Over Military Conscription in the United States, 1787–1973 (New York, 1975); and O’Sullivan, John and Meckler, Alan M., eds., The Draft and Its Enemies: A Documentary History (Urbana, 1974).

3. The only work I know of spanning the whole period of the draft is Chambers, John Whiteclay II, “Conscientious Objectors and the American State from Colonial Times to the Present,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. Moskos, Charles C. and Chambers, John Whiteclay II (New York, 1993), 23–46. The more episodic or topical approaches include Anderson, Jeffrey M., “Conscience in the Court, 1931–1946: Religion as Duty and Choice,” Journal of Supreme Court History 26, no. 1 (March 2001): 2552; Bredbenner, Candice, “A Duty to Defend? The Evolution of Aliens’ Military Obligations to the United States, 1792 to 1946,” Journal of Policy History 24, no. 2 (April 2012): 224–62; Flowers, Ronald B., To Defend the Constitution: Religion, Conscientious Objection, Naturalization, and the Supreme Court (Lanham, Md., 2003); Glen, John M., “Secular Conscientious Objection in the United States: The Selective Service Act of 1940,” Peace & Change 9, no. 1 (Spring 1983): 5571; Peters, Shawn Francis, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Kans, Lawrence., 2000); Greenawalt, Kent, “All or Nothing at All: The Defeat of Selective Conscientious Objection,” The Supreme Court Review 1971 (1971): 3194; Lindenbaum, Matthew G., “Religious Conscientious Objection and the Establishment Clause in the Rehnquist Court: Seeger, Welsh, Gillette, and 6(j) Revisited,” Columbia Journal of Law & Social Problems 36, no. 3/4 (Spring/Summer 2003): 237–63; and Howlett, Charles F., “The Courts and Peace Activism: Selected Legal Cases Related to Matters of Conscience and Civil Liberties,” Peace & Change 38, no. 1 (January 2013): 632.

4. Chambers, for example, in his survey of COs’ interactions with the state, distinguishes the three branches of government, but does not examine the tensions among them. Chambers, “Conscientious Objectors and the American State from Colonial Times to the Present,” 39–42.

5. On the question of civil liberties in the Warren and Burger Courts, see Belknap, Michal R., The Supreme Court Under Earl Warren, 1953–1969 (Columbia, S.C., 2005); Powe, Lucas A. Jr., The Warren Court and American Politics (Cambridge, Mass., 2000); Funston, Richard, Constitutional Counterrevolution? The Warren Court and the Burger Court: Judicial Policy Making in Modern America (New York, 1977); Maltz, Earl M., The Chief Justiceship of Warren Burger, 1969–1986 (Columbia, S.C., 2000); Thomas, William R., The Burger Court and Civil Liberties, rev. ed. (Brunswick, Ohio, 1979).

6. Schulman, Bruce J. and Zelizer, Julian E., “Introduction: The Constitution and Public Policy in U.S. History,Journal of Policy History 20, no. 1 (2008): 2.

7. Chambers, “Conscientious Objectors and the American State from Colonial Times to the Present,” 35.

8. On the former, see Capozzola, Christopher, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York, 2008). On the latter, see Abraham, Henry J. and Perry, Barbara A., Freedom and the Court: Civil Rights and Liberties in the United States, 8th ed. (Kans, Lawrence., 2003); and Savage, David G., The Supreme Court and Individual Rights, 5th ed. (Washington, D.C, 2009).

9. Capozzola, Uncle Sam Wants You, 6.

10. Selective Service Act, Pub. L. No. 65-12, 40 Stat. 76 (May 18, 1917) at 78. On those customs, see Greenawalt, Kent, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton, 2006), 5259.

11. 40 Stat. 76 at 78. For an excellent overview of the draft during World War I, see Chambers, John Whiteclay II, To Raise an Army: The Draft Comes to Modern America (New York, 1987).

12. Chambers, To Raise an Army, 205–10; see also Capozzola, Uncle Sam Wants You.

13. Chambers, To Raise an Army, 216.

14. Kneedler v. Lane, 45 Pa. St. 238 (1863). See also Bernstein, J. L., “Conscription and the Constitution: The Amazing Case of Kneedler v. Lane,” American Bar Association Journal 53, no. 8 (1967): 708–12; and Delehant, John W., “A Judicial Revisitation Finds Kneedler v. Lane Not So ‘Amazing,’” American Bar Association Journal 53, no. 12 (1967): 1132–35.

15. Burroughs v. Peyton, 57 Va. (16 Gratt.) 470 (1864), cited in Hughes, Charles Evans, “War Powers Under the Constitution,” Marquette Law Review 2, no. 1 (1917): 4.

16. Jacobson v. Massachusetts, 197 U.S. 11 (1905) at 29. On that case, see Willrich, Michael, “‘The Least Vaccinated of Any Civilized Country’: Personal Liberty and Public Health in the Progressive Era,” Journal of Policy History 20, no. 1 (2008): 7693.

17. Selective Draft Law Cases, 245 U.S. 366 (1918) at 378.

18. Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919). On the restriction of civil liberties during and after World War I, see Murphy, Paul L., World War I and the Origin of Civil Liberties in the United States (New York, 1979); Capozzola, Uncle Sam Wants You, 144–72.

19. Immigration and Naturalization Act, Pub. L. No. 59-338, 34 Stat. 596 (June 29, 1906) at 598.

20. United States v. Schwimmer, 279 U.S. 644 (1929) at 650. On this case, see Threlkeld, Megan, “Citizenship, Gender, and Conscience: United States v. Schwimmer,Journal of Supreme Court History 40, no. 2 (July 2015): 154–71.

21. United States v. Macintosh, 283 U.S. 605 (1931) at 622. The decision in Macintosh controlled the decision in Bland, which had the same 5–4 split. United States v. Bland, 283 U.S. 636 (1931). For more on the naturalization cases, see Bredbenner, “A Duty to Defend?” and Flowers, To Defend the Constitution.

22. Chambers, To Raise an Army, 221.

23. Compulsory Military Training and Service: Hearings Before the Committee on Military Affairs, United States Senate, 76th Congress, 3rd session, on S. 4164: A Bill to Protect the Integrity and Institutions of the United States Through a System of Selective Compulsory Military Training and Service (Washington, D.C., 1940), 311.

24. Selective Compulsory Military Training and Service, 206. For a more in-depth analysis of the debates on the bill, see Glen, “Secular Conscientious Objection in the United States.”

25. Selective Training and Service Act, Pub. L. No. 76-97, 54 Stat. 885 (September 13, 1940) at 889.

26. For more on this important development, which sent COs to Civilian Public Service camps rather than exposing them to abuse within the military, see Krehbiel, General Lewis B. Hershey and Conscientious Objection During World War II; Stewart-Winter, “Not a Soldier, Not a Slacker”; Dekar, Paul R., “The ‘Good War’ and Baptists Who Refused to Fight It,” Peace & Change 32, no. 2 (April 2007): 186202.

27. Bowles v. United States, 319 U.S. 33 (1943); Falbo v. United States, 320 U.S. 549 (1944); Billings v. Truesdell, 321 U.S. 542 (1944); In re Summers, 325 U.S. 561 (1945).

28. Sibley, Mulford Quickert and Jacob, Philip E., Conscription of Conscience: The American State and the Conscientious Objector, 1940–1947 (Ithaca, 1952), 421–37.

29. 54 Stat. 885 at 893.

30. The history of the relationship between Jehovah’s Witnesses and the Selective Service System is a fascinating topic in its own right. For more, see Peters, Judging Jehovah’s Witnesses; and Merlin Owen Newton, Armed with the Constitution: Jehovah’s Witnesses in Alabama and the U.S. Supreme Court, 1939–1946 (Tuscaloosa, 1995).

31. 327 U.S. 114 at 122.

32. 327 U.S. 114 at 132.

33. 327 U.S. 114 at 134.

34. 327 U.S. 114 at 139.

35. Girouard v. United States, 328 U.S. 61 (1946) at 64.

36. 328 U.S. 61 at 64.

37. 328 U.S. 61 at 72–73; 76. See also Sibley and Jacob, 455.

38. 328 U.S. 61 at 79.

39. Russell, R. R., “Development of Conscientious Objector Recognition in the United States,” George Washington Law Review 20 (195152): 442; Sibley and Jacob, Conscription of Conscience, 427.

40. The “preferred positions” doctrine originated with Palko v. Connecticut, 302 U.S. 319 (1937).

41. The exception, of course, was Korematsu v. United States, 323 U.S. 214 (1944), in which the Court upheld the internment of U.S. citizens on the grounds that Japanese-Americans constituted a threat to national security.

42. William M. Wiecek, The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953, vol. 12, History of the Supreme Court of the United States, ed. Stanley N. Katz (New York, 2006), 303; 128–38.

43. Urofsky, Melvin I., Division and Discord: The Supreme Court Under Stone and Vinson, 1941–1953 (Columbia, S.C., 1997), 57.

44. 80 Cong. Red. S.7533, S.7553 (June 9, 1948).

45. 80 Cong. Rec. S.7304 (June 8, 1948).

46. Selective Service Act, Pub. L. No. 80-759, 62 Stat. 604 (June 24, 1948) at 614.

47. Amending and Extending the Draft Law and Related Authorities: Hearings Before the Committee on Armed Service, United States Senate, 90th Congress, 1st session, on S.1432: To Amend the Universal Military Training and Service Act, and for Other Purposes (1967), 35.

48. Cooper v. Aaron, 358 U.S. 1 (1958) at 18.

49. On the Warren Court’s incorporation of the Bill of Rights, see Abraham, Henry J. and Perry, Barbara A., Freedom and the Court: Civil Rights and Liberties in the United States, 8th ed. (Lawrence, Kans., 2003), 6695.

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

51. 380 U.S. 163 at 174. Clark was quoting Webster’s New International Dictionary, 2nd ed.

52. 380 U.S. 163 at 173.

53. 380 U.S. 163 at 165.

54. 380 U.S. 163 at 176.

55. 90 Cong. Rec. S.12,937 (17 May 1967) (speech to the Hampton Road Maritime Association).

56. 90 Cong. Rec. H.14,098 (25 May 1967).

57. L. Mendel Rivers, interview, Meet the Press, NBC, 30 April 1967, quoted in Marmion, Selective Service, 75–76.

58. Universal Military Training and Service Act, Pub. L. No. 90-40, 81 Stat. 100 (30 June 1967) at 104.

59. 81 Stat. 104.

60. Welsh v. United States, 398 U.S. 333 (1970) at 341.

61. 398 U.S. 333 at 339–40 (emphasis added).

62. 398 U.S. 333 at 369.

63. Gillette v. United States, 401 U.S. 437 (1971) at 445.

64. 401 U.S. 437 at 460.

65. Mulloy v. United States, 398 U.S. 410 (1970).

66. Ehlert v. United States, 402 U.S. 99 (1971).

67. Clay v. United States, 403 U.S. 698 (1971). On that case, see also Montville, Leigh, Sting Like a Bee: Muhammad Ali vs. the United States of America, 1966–1971 (New York, 2017).

68. Oestereich v. Selective Service System Local Board No. 11, Cheyenne, Wyoming, 393 U.S. 233 (1968); Gutknecht v. United States, 396 U.S. 295 (1970).

69. Belknap, The Supreme Court Under Earl Warren, 1953–1969, 289–90.

70. Ibid., 289.

71. United States v. O’Brien, 391 U.S. 367 (1968) at 376.

72. Marblestone, Claire, “A Matter of Conscience: United States v. Seeger and the Supreme Court’s Historical Failure to Define Conscientious Objector Status Under the First Amendment,” Hastings Constitutional Law Quarterly 38 (2010): 203.

73. Men and women recruited into the armed forces who become conscientious objectors during their period of service are subject to military rather than civilian jurisdiction, which means the federal courts have had no opportunity to weigh in on this issue since the end of the draft in 1973. For a thoughtful consideration of the issue of conscientious objection within the All-Volunteer Force, see Minear, Larry, “Conscience and Carnage in Afghanistan and Iraq: US Veterans Ponder the Experience,” Journal of Military Ethics 13, no. 2 (April 2014): 137–57; and the symposium on Minear’s article in the July 2015 issue of the same journal.

74. Burwell v. Hobby Lobby, 573 U.S. ___ (2014).

75. March for Life v. Burwell, 128 F.Supp.3d 116 (2015) at 127.

76. Timothy Jost, “Implementing Health Reform: Federal Court Rules on March for Life v. Burwell (Updated),” Health Affairs (blog), 1 September 2015 (accessed 14 June 2018), https://www.healthaffairs.org/do/10.1377/hblog20150901.050294/full/.

For their helpful feedback on various drafts of this article, I am grateful to Trey Proctor, Adam Davis, Hoda Yousef, Julie Mujic, Anthony DeStefanis, and the anonymous reviewers for JPH.

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