Tuesday, January 25, 2011

* Herman Will

The United Methodist Building across from the U.S. Supreme Court

Herman Will
Associate General Secretary
Division of World Peace
Board of Church and Society of the United Methodist Church

Douglas Clyde Macintosh was a familiar name to persons concerned about peace and civil liberties in the 1950's.  The Supreme Court's holding that an applicant for citizenship must be willing to bear arms in any war the United States might undertake was a setback for those interested in the rights of conscientious objection.

In 1929, Rosika Schwimmer, a pacifist, had been denied naturalization.  Macintosh, however, held essentially the "just war" position in line with much of Christian teaching on the issue.  Despite his willingness to participate in wars he considered justified, the Supreme Court turned down his appeal.

There were two important points in the decision.  First, the Court's majority opinion stated: "Whether any citizen shall be exempt from serving in the armed forces of the nation in time of war is dependent on the will of Congress and not upon the scruples of the individual, except as Congress provides."  This bore out earlier World War I cases which had held that conscientious objection is not a constitutional right protected by the First Amendment.

The second point related to the oath of naturalization in which the applicant promised to "support and defend" the Constitution and laws of the United States.  Many pacifists have taken this or similar oaths (for state and federal office, for admission to the bar, etc.) in clear conscience, believing that it did not require them to use military force.

In fact, Chief Justice Charles Evans Hughes in his dissenting opinion in the Macintosh case, argued this very view.  After referring to the long listing of conscientious objection in the United States and the loyal and patriotic citizens who have taken this position, Chief Justice Hughes wrote: "To conclude . . . . representative government."

It may be of interest to the reader to know that the Macintosh case was eventually revised by the Supreme Court in 1946.  A Canadian Seventh-Day Adventists who was willing to enter the Army, but only as a non-combatant, was held to be eligible for citizenship.  With three justices dissenting, Justice Douglas wrote the majority opinion in which he stated that the precedents of the Schwimmer and the Macintosh decisions "do not state the correct rule of law."

In view of the large number of young men who took the selective objector position during the Vietnam War, Professor Macintosh's position of support only for "just wars" is of special interest.  Clearly, governments have great difficulty in adjusting their conscription laws to the consciences of those who insist on applying their own criteria of justice to war.  Though the draft is now in abeyance,  there is no indication that selective conscientious objection will be recognized by law in the foreseeable future.


Editor's note:  Mr. Will is an authority on Constitutional Law.

Further reading on the Macintosh case:

Ronald B. Flowers, “The Naturalization of Douglas Clyde Macintosh: Alien Theologian,” JOURNAL OF SUPREME COURT HISTORY 25/3 (2000): 243-270.

Ronald B. Flowers, “Douglas Clyde Macintosh: Selective Conscientious Objection,” in 100 AMERICANS MAKING CONSTITUTIONAL HISTORY: A BIOGRAPHICAL HISTORY. Melvin I. Urofsky, ed. (Washington, D.C.: CQ [Congressional Quarterly] Press, 2004, 124-125. Article written by invitation.

No comments: