We're Unfair to Draft-Card Burners

We are rightly concerned about disrespect for the law in any shape or form. Some of these Vietnam objectors may be hypocrites, or sensation-mongers, or outright subversives, of course. But surely, for those sincere and loyal citizens who believe the war to be unjust, military service in Vietnam presents a terrible moral issue. And, I submit, we are seriously discriminating against this sincere minority and putting its members in an impossible moral position.

To demonstrate, let us say that one young man announces that he is forbidden by conscience to take part in any war. The legal response, and much of the public verdict, would be that he should not be required to serve in the military, and a way would be provided for him to perform other service honorably. But there are other young men who may say that World War II was just because Hitler had to be fought, but that the Spanish-American War was unjust and the Vietnamese War is unjust and therefore they cannot conscientiously support it. Like John Quincy Adams, who fought for the American Revolution but bitterly opposed the Mexican War, they are willing to participate in "just" wars but not an " unjust" one. Public opinion denounces them, and the law says they can be sent to a federal penitentiary.

Congress has never dealt adequately with these distinctions in the series of draft laws that it has passed. One of the first federal draft acts, passed in 1864, exempted only those members of established religious communities who were forbidden by their articles of faith to bear arms—Quakers, Mennonites and the like. Thereafter, seemingly by force of habit. Congress repeated the exemption of total religious pacifists from combat service. The Draft Act of 1917 contained language almost identical to that of the 1864 act but the 1940 law finally broadened the exemption to include all those whose opposition to war was based upon "religious training or belief," with or without membership in a religious group. Thus one did not have to be a Quaker to obtain conscientious-objector classification—only to think like one. In some ways, of course, our draft statutes have become both more complex and more reasonable. The 1917 act provided that the objectors were to be drafted, but permitted to do noncombatant work, and the 1940 statute added the provision that those conscientiously opposed even lo noncombatant work could perform "civilian work" at the direction of their draft boards. ("Civilian work," in practice, often meant labor within the confines of conscientious-objector camps.)

In spite of all these developments. Congress has never faced the fact that just as one may oppose all war on religious grounds without being a Quaker or a Mennonite, one may oppose a single war—for instance, Vietnam—on religious or ethical grounds without being a total pacifist.

Many will say that a citizen bas no more right to refuse to fight than to refuse to obey other laws. And if one does have such a right, may he not also refuse to pay taxes to support the "unjust war?" In time of national emergency, it will be argued, the opposition of a minority to an essential law may deprive the nation of its very right to survive. The proper route of protest, the argument continues, is through the courts or legislation, not by civil disobedience.

From the point of view of the sincere objector himself, there is only one answer to these arguments, and it is not really an answer at all, but rather the response that Martin Luther made to similar entreaties: "Here I stand; I cannot do otherwise.”

For every man there can be some things which conscience forbids, even while the law says, "You must!" Rarely will a command of the State and one’s ethical standards clash so violently, but when they do, a man must give priority to his own deepest convictions or lose respect for his own moral worth. As a lawyer, I of course have deep respect for the law, and yet I also recognize that a man's conscience may tell him that, legal right or no legal right, his moral "right" is absolute. As to the argument that the nation's right of self-preservation must supersede individual rights, Harlan Fiske Stone, later Chief Justice of the United States, has given the most effective answer:

"All our history gives confirmation lo the view that liberty of conscience bas a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it in the process."

Henry Thoreau said it even more briefly: "I think that we should be men first, and subjects afterward."

It has been our pride in America to produce men. not just subjects, and to accommodate our laws, where possible, to the demands of the individual conscience. This is often an excruciating task, and many times, on such issues as fluoridation and vaccination, the moral issue has been found insufficient and the conscience has been obliged to give way. But plainly the law can and should make exception for those who wish to serve in other ways than by carrying a gun in a particular war. We can and should recognize what our existing conscientious-objector laws imply—that the draft makes a unique demand upon the citizen.

The soldier cannot later work for "repeal" of the war he believes unjust and for resurrection of the enemy dead—at least not in this world. Only in time of war do we ask our citizens to commit the one act which all religions otherwise recognize to be, prima facie, a mortal sin—killing. Surely, if the problem were confronted squarely, few of us would want our citizens to suspend moral judgment in wartime. When a man is asked to kill in the service of his country, we should not ask him to say to himself as he pulls the trigger: "I am not responsible for this act; I am just a tool of national policy; I am justified because I am acting under superior orders."

Morally speaking. the conscientious objector may feel that his right not to fight is absolute, but in the political realm (as the Supreme Court has held time and lime again) there are few, if any, absolute rights; and when an intransigent minority threatens the majority’s right to govern, the minority must admittedly give way. But by the same token, the majority have no right to assume that permitting dissenters to live as their consciences dictate will tear society apart. It is this kind of assumption—“Give ‘em an inch and they’ll take a foot”—which has been responsible for some of the most murderous repressions of minorities in history. What I plead for is a new, pragmatic approach to the problem.

My proposal is a simple one. Force a real, hard choice on the zealots. Expand our conscientious-objector statute so that those who are "conscientiously opposed" to a particular war can preserve their consciences without becoming criminals. The present law states that pacifists shall be assigned "to noncombatant service" or to "civilian work contributing to the maintenance of the national health, safety or interest." To this I would add a new classification for the particular war objector. He, too, would be called into service for the national interest. If it were killing in Vietnam to which he conscientiously objected, he could go into noncombatant service there—as the conscientious objectors may do now. If, in good conscience, be couldn't take part in the Vietnam war at all, then he could do combat duty on another front, perhaps Korea or Germany. If he still proved recalcitrant, he could be treated much like a general conscientious objector, and be posted to difficult or hazardous civilian work, perhaps in the Southwest deserts or the swamps of Central Africa—wherever he was needed. If administering this plan sounds like an unbearable burden, one must reply that this is the kind of price we pay, and pay again, to protect the rights of suspected criminals and even reckless drivers.

One can immediately foresee several major objections, but I think that all of them can be effectively rebutted. It can be argued, for example, that unconscientious fakers will take advantage of such a law. Some will, of course, as they do under present law—but not many. Under existing statutes, persons claiming conscientious-objector status are first investigated by their draft boards, and then may appeal to another board which is supplied information by the Justice Department. Their lives and characters are scrutinized. This procedure deters many from applying, and an adaptation of the procedure could be used on the particular war objectors.

Next, some will object that too many would use the new route to avoid service. This notion has no basis in known fact. When the 1917 Act exempted conscientious objectors, there were dire predictions that no one would be available for the fighting. As it turned out. few were willing to spend that war, or any subsequent wars, at some dangerous noncombatant job or in difficult or often degrading civilian work, risking career and reputation to join a minority to which a stigma has always attached.

The vast majority of America's young men have always been conformist in useful ways. They prefer to go where the action is—to be with their colleagues. even in war, rather than be banished from their company. And as Vietnam demonstrates daily, Americans make willing, brave and skillful soldiers.
Defense Department officials would probably be the first to admit that if an announcement were made tomorrow at Danang Air Base offering to transfer out any man who had lost faith in the American cause and who was prepared to explain his views to a hearing board, there would be few—if any takers. In recent years the U.S. Army has permitted servicemen who are suddenly “converted" to total conscientious objection to leave the service without dishonor. Very few have tried to use this policy as a means of avoiding service.

Some may object that a new law which recognizes the particularity of the conscience will tempt our youth too much. Many young men—especially those in college, or so it will be argued—could easily be induced by skillful propagandists to adopt a leftist, anti-war position, and this could cripple our ability to combat Communist expansionism. In fact, college students on the whole are as susceptible as their countrymen to the persuasive power of a national campaign to generate popular support for military action. A recent survey found that in over 80 colleges the school officials believed that only one percent of the students were involved in anti-war activity. Few of this tiny minority, if required either to apply for objector status or to join the military, would adopt the former course—particularly since the chances of participating in the real shooting are actually very small. Moreover, an exemption for the particular-war objector would rob the extreme leftist movement of much of its glamour (its appeal to the martyr instinct), and of its future potential, which lies in students made outlaw by the present law.

Few young men would or could achieve the new status of the conscientious objector to the particular war. Not only would it put their convictions to the test, but it could bring them some duty as hazardous and dirty as combat. Nevertheless, there are such men among us today, and at present they are ordered either to fight, contrary to their beliefs, or to go to jail. This situation is intolerable. Thoreau, in his Biblical way. went directly to the point:" Is there not a sort of blood shed when the conscience is wounded? Through this wound a man's real manhood and immortality flow out, and he bleeds to an everlasting death."

We cannot admit that national security and liberty of conscience are incompatible, at least not until we have made an effort to reconcile them. The objectors to particular wars should be put in their place—a place where they need not trouble their countrymen unduly, or vice versa, and also where they will not give aid and comfort to the enemy. It need not be a very pretty place, and certainly not a glamorous or an easy one. But permitting these difficult and dedicated young people to keep their consciences intact will achieve the same advantage for the rest of us. Is it not plain that one of the main reasons we are made so nervous by these few young men is that we fear we may not be giving them a fair hearing and fair judgment?