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On Political Obligation$

Judith N. Shklar, Samantha Ashenden, and Andreas Hess

Print publication date: 2019

Print ISBN-13: 9780300214994

Published to Yale Scholarship Online: September 2019

DOI: 10.12987/yale/9780300214994.001.0001

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Conscientious Objection

Conscientious Objection

Chapter:
(p.191) Lecture 21: Conscientious Objection
Source:
On Political Obligation
Author(s):

Judith N. Shklar

, Samantha Ashenden, Andreas Hess
Publisher:
Yale University Press
DOI:10.12987/yale/9780300214994.003.0018

Abstract and Keywords

Shklar draws a distinction between civil disobedience and conscientious objection. The difference is mainly to be found in the fact that the former consists in attempts to change the democratic polity while the latter does—not the latter claims only the right to follow through on a personal conscientious decision.

Keywords:   military conscription, personal beliefs, religious freedom, legal orders

CONSCIENTIOUS OBJECTION IS NOT LIKE civil disobedience.1 The conscientious objector does not want to change the law or to change policy. He, and so far it has only been “he,” because of the armed forces, only wants to act in accordance with his own beliefs as an individual. The archetypical conscientious objector is a Quaker, a Mennonite, or a Brethren. These are the historic peace churches. The Quakers are the most illuminating because their beliefs show us more clearly than any other what being a conscientious objector is about. Quakers do not believe in conscience but in the inner light, which is a direct infusion of the divine spirit that alone can move us to genuine faith. This is why one does not speak at a Quaker Meeting until the spirit moves one. It also means that Quakers think it wrong to proselytize or to try to convert other people to their beliefs. To say that they are individualistic is too feeble. In their social conduct they are exceptionally cooperative, charitable, and service-oriented. They are, in fact, model citizens except in one respect: they will not bear arms. Under no circumstances will they kill. And since the late seventeenth century, when (p.192) they first came to America to escape from persecution in England, this has caused them difficulties with their neighbors. The early tension arose over attacks by Native Americans in New Jersey and Pennsylvania. The Quakers were accused of benefiting from the defense offered by those who took up arms and confronted the dangerous enemy, to which the Quakers replied that they never had any trouble with Indians because, as they did not annoy them, the Indians did not cause them any harm. Peace, they argued, bred peace. Nevertheless both before and during the American Revolution, Quakers were often forced into military service, and when they refused to act were tortured and killed. Only George Washington, both as an officer in Virginia and then as the commander of the revolutionary forces, behaved with perfect decency and respected their scruples. The one point to bear in mind is that being a conscientious objector in America has never been easy. What is evident even at this early stage of the story is that the nature of the political conflict presented by conscientious objection is clear.

From the point of view of those fighting in defense of their country the conscientious objector is a free rider of the worst sort. While he sits at home in comfort nursing his precious inner light, the conscripted soldier, especially, has to bear all the burdens of danger and misery that fighting a war involves. To the conscientious objector it is clear that the word of God is primary and that he, having heard it, can pay attention to no other. In the middle are those who believe that religious freedom, as it is constitutionally prescribed in the United States, must somehow be able to adjudicate between the demands of military defense and those of religious faith. This is particularly the case in the United States. Britain has been able to deal very easily with its conscientious objectors, but it does not have the number of denominations that the United States has, and it does not have the courts actively engaged in interpreting a constitution. Nor does Britain have the same tensions between local and central authority. The result is that the whole issue of conscientious objection is far more complex in the United States than anywhere else. This has become especially clear since World War I because that was the first time that nonreligious conscientious objectors emerged and the dreaded question of what is and what is not a religion under the First Amendment appeared. The one thing we do share with Britain is an aversion to conscription, and to that extent (p.193) both countries in the First World War, when compulsory conscription was instituted for the first time, became hysterical in the face of conscientious objectors and potential draft evaders in general. In Britain that was not the case in the Second World War, but in the United States it persisted until we finally returned to an all-volunteer army. Even when the Soviets invaded Afghanistan and President Jimmy Carter reinstituted registration for the draft as a show of force, there were immediate conscientious objectors to that requirement, though no inductions were contemplated. So like civil disobedience, I shall treat this as both philosophically and historically an American dilemma.

In 1789, when James Madison introduced the Bill of Rights in Congress, he suggested that the following clause be added to the right to bear arms: “No person religiously scrupulous of bearing arms shall be compelled to render military service in person.”2 This amendment was not adopted by Congress because it gave the federal government too much say in the running of state militias, the only effective military force in place. It was seen as an incursion of the federal government into state authority. It would certainly have made the life of conscientious objectors simpler because exemption from military service would have been a constitutional right, which it is not now. Conscientious objectors depend entirely on acts of Congress for their status. “Military service in person” in Madison’s proposal permitted paying a substitute to fight in wars, as was legally allowed during the Civil War. It would also probably have exempted the absolutist conscientious objector from service of any kind. For from the first there were conscientious objectors who were prepared to do alternative service of national importance, such as work in hospitals, and some who would not do anything whatever that might directly or indirectly contribute in any manner to the war effort, or collaborate with military authority in any way. Refusing to register at all, they landed in jail. During the Civil War conscientious objectors who could not avoid the draft and then refused to do anything else were mistreated in military stockades, court-martialed, and in some cases killed, usually by angry draftees. It is not easy to be forced to serve as a conscript (p.194) while others seem to be permitted to do nothing because of a claim to an inner light. All the more so since Quakers, especially, were generally suspected of hypocrisy. They fared even worse in the First World War. The reason for this was not just the patriotic orgy I already mentioned, but also that the historic peace churches were not as accepted as they are now. There were several strange Russian sects, and above all there were socialists and anarchists and nonreligious pacifists who also demanded conscientious objector status. The Selective Service Law, however, stated clearly that this status could apply only to members of “well-recognized religious sects and organizations” whose members are by their beliefs forbidden to take any part in war. These people could be exempted from military service by their local draft board and assigned alternative service. Those who refused that service went to jail, and those who did it got no pay. The real problem was what to do about people who had developed scruples against military service without membership in one of the historic peace churches. Who was to determine whether they were sincere in their beliefs and how was it to be done? And what about the people who were revolutionaries, who were not pacifists at all, but objected to what they saw as a capitalist and imperialist war? One way to deal with these new conscientious objectors was to enlist them and make life intolerable for them, so that the very fact that they were ready to endure these hardships proved their sincerity. And in both world wars, noncombatant service done outside the armed services was unpaid. So the hardship of being a conscientious objector was always real enough, though not the equivalent of fighting overseas. Herein lies the political problem.

I have not given you anything like a full history of the Selective Service Acts of the twentieth century or the ups and downs of the status of conscientious objectors in times of hot or cold war. I just wanted to indicate that the population at large tended to treat the conscientious objector with contempt, on occasion lynched him, and that when left to the army he had a very rough time surviving. Only members of the historic peace churches who prepared for alternative noncombatant service managed to get by. The reason for the distrust with which people, Congress, and the executive agencies treated conscience objectors is clear. They were not doing their duty to defend a free republic against its enemies, and in the Second World (p.195) War and the Cold War that enemy was their enemy as well—a threat to religion and individual conscience if ever there was one. What case could their conscience offer against the duty of a republican citizen to share and share equally in the burdens of defending the freedoms of the republic? Why should others die for them while they sat and contemplated the inner light at leisure?

The whole question was made the more intractable by the unfairness of the draft in practice. In the First World War the local boards varied wildly from place to place in their practices, and many were very much influenced by local pressure. Black soldiers not only were in both wars forced to serve in segregated units; they were treated with contempt by every official body. And while in the Second World War the system of exemptions worked more fairly and rationally, the Cold War draft, with its college student and other exemptions, was in no sense fair. The reason why this is important is that an unfair system is not in the best position to claim that conscientious objectors are free riders and shirkers who have no sense of civic duty and allow others to bear the burdens of public security. From the first, though Americans were far from tolerant as individuals or communities, it was always possible to find a place on this continent where any group could pursue its religious life in peace and quiet, and that was not possible anywhere else. Moreover, by the eighteenth century, as illustrated by everything James Madison said and did, especially in Virginia, there was a belief among the elite, at least, that absolute religious freedom, separation of state and church, and with it the legitimization of all beliefs as long as they did not run afoul of the elementary criminal law was a fundamental human right. This was written into the state constitutions and above all into the First Amendment of the U.S. Constitution. The implication has been that religious diversity is something not just to be tolerated but to be welcomed, because it is an expression of a fundamental human right. We believe what we do, because we are as individuals the kind of persons we are, and it is an injury to the purity of faith and to the integrity of the human personality to in any way interfere with the religious life of any person. Hence the enormous number of denominations which began to flower from the early years of the nineteenth century and have never stopped. In principle the conscientious objector cannot be drafted in the (p.196) United States. The Declaration of Independence, with its “pursuit of happiness,” which referred then to religion, and the First Amendment express a non-European view of religion. Its freedom and diversity are not to be tolerated merely but to be cherished; that is why the state does not regulate religion—it is not permitted to do anything at all in regard to religion. So far so good. The awful difficulty that did not really come up at first is, What is a religion? That turned out to be as much as if not more of a problem than where to draw the line between a legitimate action expressing belief and a crime. I do not mean to say that the limits of permissible religious activity have been easy to settle. In the late nineteenth century the Supreme Court held Mormon polygamy to be the equivalent of human sacrifice and as such a crime.3 That was, however, a very isolated case. The far more common case is the conscientious objector, and it is not only a matter of a refusal to serve in the armed forces.

Conscientious objection can take the form of any refusal to obey a law not because it is regarded as unjust or politically wrong but because one’s own conscience rejects it. Other people are not urged to follow suit. The refusal to obey is entirely personal, even if the individual is a member of a church. The kinds of cases that have arisen are, for example, whether Christian Scientist parents have a right to withhold medical treatment that would save the lives of their children and allow them to die because they believe in faith healing. The answer is, in fact, no. May the Amish keep their children out of school, thus breaking the state’s compulsory education laws? Yes, they may. And then there is the vexed matter of saluting the flag in school. All these people were conscientious objectors who disobeyed the law to serve their personal beliefs, not to alter the beliefs of others or the laws at all. But no one doubts that the voice of religious conscience is what prompts them to act as they do. It is clear what they are doing, whether they are to be punished or not. The question is whether they have transgressed criminal law, especially where children are involved. What is in doubt is not the religiosity of these people but only their right to disobey the law. In the United States the claims of religion in these cases are taken (p.197) exceptionally seriously. That when the conscientious objectors end up in court they demand their First Amendment rights is itself a unique aspect of our constitutional system and the legal respect it accords religious self-expression. What the courts say in each case in which they accept a practice as a religious right is that religious freedom, even in conflict with the law, is so essential to the constitutional system of the United States that almost nothing can inhibit it. The life of a child is one of the rather few cases in which the criminal law asserts itself. On the whole the line between religious faith and political obligation tends to favor the individual believer.

The problem with the conscientious objector who seeks exemption from military service was originally a question of readily recognized religiosity. Congress provided relief for those who belonged to pacifist sects, since that was all that was at stake. This did not work out very well, because there was too much local discretion, but the principle was clear. All that has changed as American society has changed. It is all quite different now, with more types of religious and many nonreligious claims for conscientious objector status. The old question of free riding and civic duty in a republic that protects every religion has become even graver because the new breed of conscientious objectors is no longer religious. Some new principle therefore has to be found to decide who is entitled to being recognized as a conscientious objector. Apart from members of the historic peace churches should anyone be exempted from military service simply because of a stated political or philosophical belief? How is the state to discriminate between legitimate and illegitimate belief systems? For this is not the eighteenth century, and we live in a society where the diversity of private beliefs and opinions is not limited to religious doctrinal controversies. We are far more preoccupied with differences of secular moral and political belief. Conscience is not what it once was. It is not an inner light or the voice of God revealed in the Bible or even a stable universal moral system; it is the voice that says, “Here I stand, I cannot do otherwise” but not as Luther did, because of the word of God, but because I am what I am—in effect, my own God. This is what a free society in the twentieth century is bound to be, but it is more the case in the United States than anywhere else, given its immigration patterns and religious history.

As you may recall conscientious objection also begins earlier in the (p.198) United States than anywhere else. Remember the patron saint of conscientious objectors, Thoreau? While there were conscientious objectors who were not members of historic peace religions in World Wars I and II, they predominated during the Vietnam War. By that time the Selective Service Law had been considerably liberalized. All a conscientious objector had to prove was that his refusal to serve was based on a belief in a Supreme Being. But this did not take care of conscientious objectors who were not overtly religious, and even more problematic were those who were not pacifists either, but only objected to a specific war: so-called selective conscientious objectors. What should be done about them?

The difficulties are enormous. First, how is one to determine their “sincerity”? How can a court or any other public agency determine what goes on inside a man’s skull? Should they do so? Indeed, under the First Amendment may they? Is it not inquisitorial? There is, secondly, the question of fairness. Clearly, articulate and well-educated people are at a great advantage in making claims for philosophical objections to war in general or to a specific war. As long as being a member of a given sect was all you had to show, the issue did not arise. Most Mennonites and Brethren were poor, and the Quakers varied. Once you permit secular convictions to justify conscientious objector status the articulate and educated are the only people likely to be able to make a case. Third and finally, how can one decide what set of convictions is to count, and who is to decide that? Is it thinkable that all individuals who say, “I think this war is wrong,” are to be excused from serving in the military and even from doing alternative noncombatant service? Or from any other legally required practice that they happen to find repugnant? Surely no system of conscription can accept the notion that all must serve except those who can come up with a plausible reason for not doing so. Hence the desperate but futile demand of the courts that the prospective conscientious objector show that he is adhering to something “outside” himself, something that can at least be examined and evaluated.

To cope with the “selective objector” some theologians have suggested that an argument made in terms of “just war” theory might be acceptable as grounds for legitimate conscientious objector status. This seems to me a ridiculous suggestion because it would require the government to admit that it was waging an unjust war under the definitions of international law. (p.199) A draft resister who claimed he could not enlist because the Vietnam War was unjust was pitting his definition against that of the government, and here we run into the same difficulties as those who acted in civil disobedience campaigns to protest the injustice of the war. Another approach, which I find more convincing, is to say that the First Amendment is so broad that anyone who makes even the most tenuous religious claim has to be accepted as a genuine conscientious objector. That is because, given its latitude, one must favor the individual’s rather than the government’s definition of who is and who is not moved by religious or religion-like beliefs.

Finally there is the wholly pragmatic approach, which says that the days of the genuine peace religions are over. The question on all sides is a purely political one. Is it in the best interest of the government to exempt those who claim to have a scruple of some kind against serving or isn’t it? The most coherent answer is Hegel’s. The modern state is so strong and the respect it shows in principle for subjective beliefs is so central to its public character that it can afford to allow these sects to refuse to do their duty, but this is in no way a matter of right. It is generosity that stems from the enormous strength of the modern state and the monopoly of the legitimate use of military force that it possesses. It is for the state to decide who is and who is not a full citizen, and essentially anarchistic sects can be tolerated at the discretion of the state. That is the Prussian legal order and, with modification, that of France and Britain. It is not that of the United States, which argues that these people are not expressing religious or similar beliefs at all; they are moved by political motives even if they act as discrete individuals. They will never be numerous; most people do, in fact, register for the draft and report when called up. The choice is simply whether it is too demoralizing to let a few conscientious objectors off for their own reasons, quietly and without a fuss, or whether it is not in the interest of a strong, self-confident liberal state to let them go their own way and to concentrate on the civic education of the vast majority of its citizens. In this way the state exhibits its respect for beliefs, religious and otherwise, assumes that the individual is a good judge of his own conscience, and accepts the claim. Let those who will, do alternative service, and let the rest off with some sort of deferment. This is a pragmatic and amoral response, to be sure, but it does get the state out of the business of deciding what is and what is (p.200) not a sincere moral, quasi-religious belief. Alternatively one may abolish conscientious objector status altogether, but that is also difficult given the legislative traditions that were a response to the historic peace churches, which still survive, after all.

The way the Supreme Court has dealt with the issue is as confused as one might expect. Take, for example, the 1965 case involving Seeger, Jakobson, and Peter, three conscientious objectors all of whom had Catholic upbringings but had moved on to the vaguest beliefs in the importance of religion for Western values or a rational cosmos.4 This was held to be parallel to religion, since it was not outright atheism, and thus to fall under the terms of the Selective Service Act, which only demanded belief in a Supreme Being. In response to this Congress amended the act explicitly to exclude mere philosophical or social beliefs, but this was of no avail: several district courts ruled it unconstitutional under the Establishment Clause of the Constitution, and the government let it go at that. This was to be expected because it is in fact doubtful that the government can decide what is to count as religion. And so by the time the case of Welsh got to the Court, religion was no longer required; anyone who claimed that his conscience would torment him if he had to serve in the military was a conscientious objector.5 In the cases of Negre and Gillette the torment was not deep enough, however, because neither claimed to object to all wars, only to the Vietnam War, which they regarded as unjust.6 Both were denied conscientious objector status, and Negre was, in fact, sent to Vietnam. Since the end of that war only a few cases of explicit refusal to register under the order to do so were prosecuted by the government, and these convictions were upheld, even though the prosecutions were limited to open cases of defiance of the law, not mere failure to go to the post office.

From a philosophical point of view one thing does seem clear. From the (p.201) draft board up to the Supreme Court there is no principled way to settle the question of who is entitled to conscientious objector status. You might argue that it is a principle of the liberal state to protect the sanctity of the individual conscience and to prefer to err on its side rather than on that of the duty to defend a free and legitimate political order. That is, in fact, what the First Amendment and the religious history of this country do claim. That does not, however, solve the issue of who is to identify the voice of conscience. Who is to say this is and that is not conscience? This is sincere and that is not? If one accepts the principle of the absolute separation of church and state, there is no way that the state can decide what is a real religion unless it is clearly a criminal enterprise calling itself a religion to evade taxes or engage in the drug trade. And if the state cannot decide what a religion is, how can it decide what is and what is not a genuine secular belief in an age of multiple secular and quasi-religious belief systems? Is the government to appoint a sort of board of wise men to decide? Who would accept their authority? The difficulty would not disappear if there were a constitutional amendment making conscientious objector status a right, because the difficulty of defining those to whom the right applied would remain. So why not just look the other way when the claim to conscientious objection is made and say an army of reluctant pacifists is useless and forget about these people? Or put them all in jail as draft evaders and felons without qualification, abolishing the very idea of conscientious objector status? Or never have a draft at all, and least of all a selective service system, which exempts the rich and forces the poor to fight and which is, more or less, what we have had in all but the two world wars?

Notes:

(1.) For a general overview of the history of conscientious objection in America, Shklar recommended Lillian Schlissel, Conscience in America: A Documentary History of Conscientious Objection in America, 1757–1967 (New York: Dutton, 1968), 49–54, 142–149. For a more philosophical argument Shklar suggested Michael Walzer, Obligations: Essay on Disobedience, War and Citizenship (Cambridge: Harvard University Press, 1970), 3–23, 120–145.

(2.) In addition to drafting the first ten amendments to the Constitution (the Bill of Rights), James Madison, later to become the fourth president of the United States, was a co-author with Alexander Hamilton and John Jay of The Federalist Papers.

(3.) In Reynolds v. United States, 98 U.S. 145 (1878), the Court upheld the criminal conviction of George Reynolds, a prominent member of the Church of Jesus Christ of Latter-day Saints (the Mormons), for bigamy.

(4.) In United States v. Seeger, 380 US 163 (1965), the Court ruled that a person could be exempted from military service based on belief in a Supreme Being; the decision resolved the three separate cases of Daniel Andrew Seeger, Arno Sascha Jakobson, and Forest Britt Peter.

(5.) Welsh v. United States, 398 US 333 (1970), held that a person could be exempted from military service based on ethical or moral objections to war.

(6.) Negre v. Larsen, 39 US 968 (1969) was consolidated in the Supreme Court ruling in Gillette v. United States, 401 US 437 (1971) with the results Shklar mentions.