Archive for December, 2009

What Marines & Code Pink Have in Common

Posted in Random on 20091216 by Avenging Sword



When I saw the second image last year, it got me wondering where I’d seen that line before.  Then I remembered:  aboard Al Asad airbase in Iraq, on the wall of a building occupied by Marines, someone had thoughtfully tacked on a number of Marine bumper stickers.  One of them was similar to that shown in the first image.  

I find myself wondering whether this line first originated among military personnel or antiwar protesters, but I’m not bored enough to trace its etymology….

Statistics + Law =

Posted in Law on 20091215 by Avenging Sword

Having devoted many hours of late to an article that I hope to have published in a law review, I am reminded of a friend of mine who’s already managed this feat.  More than once. 

Her most recent article – on judicial tests for disparate-impact discrimination – can be found in the Indiana Law Journal.  Prior to that, she’d done an empirical study regarding the impact of gender composition on the outcome of federal sexual harassment & sex-discrimination cases at the appellate level.  (If the latter sounds vaguely familiar, that’s probably because it was mentioned earlier this year in the New York Times, its Economix Blog, and (more obliquely) in the WSJ, back when Sotamayor was making headlines.) 

If you’re at all interested in what happens when you a legal background with competence in statistics, you may want to take a look.

Conscientious Objection & the Original Meaning of the Bill of Rights

Posted in Law on 20091207 by Avenging Sword

Lately, my reading has focused on the question of whether the Bill of Rights, as originally understood, established a federal right whereby conscientious objectors could claim exemption from compulsory military service.  My tentative conclusion is that it did not.

Second Amendment

At first glance, such a conclusion appears obvious; after all, none of the first ten amendments even mentions a right to conscientious objection.  Moreover, this silence was no mere oversight, but rather a deliberate choice on the part of the First Congress.  Madison’s initial draft of the Second Amendment actually did contain a conscientious objector provision, as did the version of the Second Amendment that passed the House of Representatives.  However, when the Senate deleted the conscientious objector provision from the House’s version, the House effectively acquiesced to this de facto rejection of conscientious objector rights, by passing the Senate’s amended version.  Historically, then, Congress as a whole did consider, and reject, the notion of constitutionalizing a right to conscientious objection [1].

However, despite its overt silence on the matter, the Bill of Rights still does contain some provisions that could, implicitly, establish a right to conscientious objection.

First Amendment

One such provision is the Free Exercise Clause of the First Amendment [2].  Although surviving debates from drafting & ratification of this amendment are sparse, and mostly focused on the Establishment Clause [3], this hasn’t stopped prominent originalist scholar Michael McConnell from recently arguing that the Free Exercise Clause, as originally understood, required that generally-applicable laws provide “religious exemptions” to persons whose religious beliefs conflicted with such laws [4].  However, while McConnell marshals an interesting array of Founding-era evidence, he notably fails to cite a single Founding-era statement equating the right to free exercise of religion with religious exemptions.  His speculations regarding the reasons for various textual changes made during the drafting of the First Amendment are simply that [5].  And his citation of Founding-era religious exemptions [6] is unaccompanied by any evidence (e.g., legislative history, public debates) suggesting that those exemptions were enacted out of concern for constitutional obligations regarding a right to religious free exercise, or general concern for religious liberty, as opposed to less transcendent, secular reasons [7].  I therefore find McConnell’s argument unpersuasive.

Indeed, contra McConnell, there are several reasons to believe that the original meaning of the First Amendment does not mandate religious exemptions.

  • First, the usages of prominent Founding-era religious believers suggests that “free exercise” was understood to denote a relatively narrow right to freedom of belief & worship, and the absence of preferences (or penalties) for any given religion [8].
  • Second, prior to the drafting of the Bill of Rights, several states’ lists of constitutional amendment proposals included separate provisions regarding free exercise and conscientious objection.  So also did the bills of rights in severa several state constitutions.  This implies that the right to religious free exercise was not understood as encompassing exemptions for conscientious objectors (else explicit provisions for the latter would’ve been redundant surplusage) [9].
  • Third, during House debates regarding the Second Amendment’s conscientious objector provision, nobody even mentioned the possibility that such a provision might be redundant given the Free Exercise Clause [10].
  • Fourth, although McConnell correctly notes that many state-level religious freedom clauses included caveats [11], his conclusion – that such caveats indicate that “free exercise” was viewed as encompassing religious exemptions [12] – does not necessarily follow.  Indeed, such caveats could also be taken as limitations upon the availability of religious liberty, as opposed to the scope of said liberty [13].  Given the then-well-known history of European religious wars, the Founders were well aware that religion could inspire criminal or seditious behavior [14].  Limiting religious liberty only to faiths deemed unlikely to inspire such behavior was seen by many as a reasonable compromise between the rights of believers, and the safety of the state [15].
  • Fifth, and perhaps most importantly:  In Founding-era public discourse regarding church-state relations, demands for religious exemptions were largely absent.  In fact, “establishmentarians” who supported continued state-level religious establishments frequently accused their “dissenter” opponents of seeking religious exemptions to generally-applicable laws.  The “dissenters”, by way of response, tended to deny any desire for such exemptions [16].

In view of the foregoing, I’m inclined to conclude that the Free Exercise Clause, as originally understood, did not require religious exemptions.  It follows that the Clause did not establish a right to conscientious objection either.

Unenumerated Rights

The other possibility is that conscientious objection was an “unenumerated right” [17] implicitly protected from infringement by the Ninth Amendment [18], and/or the Due Process Clause [19] of the Fifth Amendment.  Both of these provisions were originally understood to prohibit the federal government from violating the “natural rights” of individuals [20].  The question, therefore, becomes:  Did Founding-era Americans view conscientious objection as a “natural right”?  There are several reasons to believe they did not:

  • First, as with the Free Exercise Clause, the Ninth Amendment’s possible applicability to conscientious objection was not mentioned during House debate regarding the conscientious objection provision in the (draft) Second Amendment [21].
  • Second, during aforementioned House debate, Egbert Benson moved to delete the conscientious objection provision, arguing that

No man can claim this indulgence [of conscientious objection] of right.  It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government.  If this stands as part of the Constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of this militia, whether it comports with his declaration or not.  It is extremely injudicious to intermix matters of doubt with fundamentals.  I have no reason to believe but that the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion. [22] [Emphasis added]

Though the House defeated Benson’s motion, the fact that the entire Congress later (effectively) endorsed Benson’s proposal suggests that a majority of both houses may have ultimately agreed with his reasoning.  This would be unsurprising, given that Benson’s views were apparently predominant among Founding-era Americans [23].

  • Third, during the Revolutionary War, conscientious objectors were subject to violence & threats in Pennsylvania, Maryland, & Virginia.  In the latter, moreover, opponents of conscientious objection explicitly deemed such provisions “unjust”.  Such controversy implies a lack of consensus regarding whether conscientious objection was a “natural right” [24].
  • Fourth, legislatures establishing conscientious objector provisions often did so out of sympathy, or in order to curry votes [25].  Moreover, the colonial/Revolutionary-era pacifists seeking such provisions did not demand such exemptions as a matter of right, but rather, basically, “begged for mercy” [26].
  • Fifth, although several state constitutions included a right to conscientious objection [27]; and a few other state ratification conventions had included such a right in their proposed amendments to the federal constitution [28]; at most, this suggests that some states considered conscientious objection worthy of constitutional protection.  However, this doesn’t mean conscientious objection was viewed as being a natural right; in the Founding era, rights protected by constitutions were not necessarily synonymous with “natural rights” [29].

In view of the above, it seems unlikely that the Founding generation generally considered conscientious objection to be a natural right.  As such, conscientious objection was probably not originally understood to be protected by either the Fifth or Ninth Amendment.

Conscientious Objection & War Tax Resistance

Though conscientious objection has largely been a dead issue since the demise of the conscription in 1973, so-called “war tax resisters” have recently suggested that the original meaning of the Ninth Amendment protects a right to avoid paying taxes associated with the support of warfare [30].  This argument cites Randy Barnett & other scholars, in combination with Founding-era state constitutions that established conscientious objector rights.  However, as previously noted, it is unlikely that the Ninth Amendment was originally understood to protect an unenumerated right of conscientious objectors to exemptions from compulsory military service [31].

Moreover, even assuming, arguendo, that state constitutional provisions & proposals did reflect a Founding-era consensus regarding the propriety & scope of a natural right to conscientious objection; and that, therefore, the Ninth Amendment did protect such a right; the fact remains that, in the Founding era, then-extant formulations of a constitutional right to conscientious objection – in state constitutions, in Ratification-era state amendment proposals, and in the draft Second Amendment proposed by the House of Representatives – nevertheless conceded the propriety of financially-burdening conscientious objectors to support a war effort [32].  As such, it seems likely if original meaning of the Ninth Amendment did protect a right to conscientious objection, the right thereby protected would have been the one recited in the aforementioned provisions & proposals:  I.e., a right to exemption from bearing arms in person, conditional upon provision of a substitute or payment of a legislatively-determined tax.  In which case, even a Ninth Amendment originally understood to protect conscientious objection would not protect a right to exemption from paying war-related taxes.


[1] The final House draft of the Second Amendment read:

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not e infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

See Neil H. Cogan, The Complete Bill of Rights:  The Drafts, Debates, Sources, and Origins, at 173 (1997).

For accounts of this aspect of the Second Amendment’s drafting, see Vincent Phillip Munoz, “The Original Meaning of the Free Exercise Clause:  The Evidence From the First Congress”, 31 Harv. J.L. & Pub. Pol’y. 1083, 1109-1117 (2008); and Ellis M. West, “The Right to Religion-Based Exemptions in Early America:  The Case of Conscientious Objectors to Conscription”, 10 J.L. & Relig. 367, 395-396 (1994).

The House’s de facto acquiescence to the Senate’s deletion of a conscientious objector right stands in notable contrast to an incident where the House did stand up to the Senate – regarding the relatively minor constitutional question of whether the President could unilaterally remove executive officers.  See Sai Prakash, “New Light on the Decision of 1789“, ExpressO (2005), pp. 37-39.  Available at:

[2] U.S. Const. amend I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”).

[3] Munoz, supra note 1, at 1100-1109; McConnell, infra note 4, at 1481.

[4] Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion”, 103 Harv. L. Rev. 1409 (1989-1990)

[5] McConnell, supra note 4, at 1488-1500.

[6] McConnell, supra note 4, at 1466-1473.

[7] The military rationale for excluding conscientious objectors is obvious:  Men unwilling to fight are less likely to make good warriors.  Exemptions from oaths (e.g., in court) could be justified as promoting the rule of law, by (effectively) permitting nonjurors to give testimony, etc., in court (and hence avail themselves of protection of the laws for persons & property).  Other possible explanations include sympathy, or simply currying votes from those who stand to benefit from religious exemptions.

[8] See, generally, Chester J. Antieau, Rights of Our Fathers, at 25-54 (1968) In particular, the Founders understood religious liberty to encompass:

  • No restriction upon political participation via religious tests (“The American Founding Fathers frequently understood that the natural right of religious liberty embraced the precept that no citizen should be rendered ineligible for public office or for voting solely because of his religious beliefs.” Id at 25);
  • No compelled religious observance (“The American community in the last quarter of the eighteenth century believed that the natural right we know as religious liberty did not permit compelled religious observance.” Id at 31);
  • No taxation to support a church whose tenets one does not espouse (“[A] majority of the [Framing generation probably] accepted the view that freedom of religion does not permit a man to be taxed by the state for the support of a church in whose tenets he does not believe.” Id at 32);
  • No religious establishment or other preferences for a particular religion (“[The Founding generation] inevitably comprehended that an establishment or preference was violative of natural right for the good reason that it denied equality of religious right.” Id at 40);
  • Freedom of conscience / no legal penalties for religious belief (“Our ancestors of 1776-1800 who believed in freedom of religion as a natural right generally understood that all dissident believers were to…be free to remain in the community without danger of imprisonment or threat of banishment because of their beliefs.” Id at 44);
  • The right to preach & worship publicly (“Principally all the natural right jurists of the American Revolution granted that freedom of religion…embraced the right to worship publicly.” Id at 48);

See also Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective”, 60 Geo. Wash. L. Rev. 915, 933 n. 80, 934 n. 83, & 935 n. 84 (1992) (citing sources wherein “exercise” refers to belief & worship).

In fairness, it should be noted that, during debate regarding conscientious objector exemptions in the Militia Act of 1792, Rep. Aedanus Burke opposed conditioning such exemptions upon payment of a commutation fee, by complaining that “[W]e are going to make a respectable class of citizens pay for a right to a free exercise of their religious principles….” See 2 Annals of Cong. 1865 (Joseph Gales, ed. 1834) (hereinafter Annals).  It is not clear, however, whether Burke’s usage of “free exercise” was widely shared in the Founding era.

[9] Munoz, supra note 1, at 1118-1119.  Though one might argue, as McConnell does, that separate conscientious objector provisions were included “out of an abundance of caution”, such an argument necessarily implies serious doubt that free exercise would be interpreted (e.g., by judges) as encompassing conscientious objection.  Such doubt, in turn, implies the absence of a Founding-era consensus equating free exercise with religious exemptions.  See West, supra note 1, at 398-399.

[10] Munoz, supra note 1, at 1118-1119; Hamburger, supra note 8, at 928.

[11] McConnell, supra note 4, at 1456-1458; also id, at 1457 n. 242.  Georgia 1777 provision is particularly notable for its similarity to the federal Free Exercise Clause:

All persons whatever shall have the free exercise of their religion; provided it not be repugnant to the peace and safety of the state….

GA. Const of 1777, Art. LVI, reprinted in Benjamin Poore, ed., 1 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, at 377, 383 (1878) (hereinafter Federal and State Constitutions).

[12] McConnell, supra note 4, at 1459-1466.

[13] Hamburger, supra note 8, at 919-926 (noting the existence of similar caveats in clauses addressing equality of believers’ rights).

[14] Philip A. Hamburger, “More is Less”, 90 Va. L. Rev. 835, 838-841 (2004) (“Certainly, in the seventeenth century, religious belief-whether Protestant or Catholic-had stimulated many of England’s troubles. Accordingly, in the late seventeenth century, when the government recognized that religious diversity was unavoidable, it offered not an unqualified religious liberty, but a toleration that was subject to conditions – caveats by which the government could punish beliefs that tended to undermine civil society.”).

[15] Hamburger, supra note 14, at 841 (“[M]any American constitutions conditioned religious liberty on the interests of government, and they thereby carefully preserved the possibility that government could penalize dangerous belief.”).

[16] Hamburger, supra note 8, at 941-945, and particularly 941 n. 107, 942 n. 111, & 943 n. 112.

[17] Such an argument was previously advanced, albeit on non-originalist grounds, during the Vietnam War.  See, e.g., J. Michael Hennigan, “In Defense of the Conscientious Objector:  The Constitutional Right to a Trial De Novo”,11 Ariz. L. Rev. 249, 264 (1969) (“The stated concern of the First Congress for the right of conscientious objection suggests that it was among the rights sought to be silently protected by the ninth amendment”); Kenneth R. Feinberg & Norman Redlich, “Individual Conscience and the Selective Conscientious Objector:  The Right Not to Kill”, 44 N.Y.U.L. Rev. 875, 888-897 (1969) (arguing a right to selective conscientious objection may be derived from the First, Fifth, & Thirteenth Amendments, in combination with the Ninth Amendment); Ruth C. Silvan, “The Constitution, The Conscientious Objector, and the ‘Just’ War”, 75 Dick. L. Rev. 1, 59-60 (1970-1971) (“The mere fact that the right not to kill is not expressly enumerated does not deny or disparage that right.  The ninth amendment’s clear purpose is to preclude a narrow interpretation of enumerated rights and to preclude them from being an exclusive catalog of rights.”).

[18] U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”).

[19] U.S. Const. amend. V (“No person shall…be deprived of life, liberty, or property, without due process of law….”).

[20] Regarding the Ninth Amendment, see Randy Barnett, “The Ninth Amendment:  It Means What It Says”, 85 Tex. L. R. 1, 80 (2006) (“The Ninth Amendment prohibits constitutional constructions…that infringe upon the unenumerated, natural, and individual rights retained by the people.”); and Kurt Lash, “A Textual-Historical Theory of the Ninth Amendment,” 60 Stan. L. Rev. 895 (2008).  Regarding the Fifth Amendment’s Due Process Clause, see Frederick Mark Gedicks, “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment”, 58 Emory L. J. 585, 669 (2009) (“On balance, the historical evidence shows that one widespread understanding of the Due Process Clause of the Fifth Amendment in 1791 included judicial recognition and enforcement of unenumerated natural and customary rights against congressional action.”).

[21] See 1 Annals, at 777-780, 795-796.

[22] 1 Annals, at 780.

[23] Antieau, supra note 8, at 53-54 (“It cannot be affirmed from the materials now extant that the majority of the Founding Fathers of the Revolutionary generation accepted as of natural right the claim of conscientious objectors to be free from military service.  Probably more representative of his age was Representative Egbert Benson who said on the floor of the First Congress while discussing this claim:  ‘It may be a religious persuasion but it is no natural right, and therefore ought to be left to the discretion of the Government.’” (footnotes omitted)).

[24] Hamburger, supra note 8, at 929 n. 65.

[25] West, supra note 1, at 376-377.

[26] West, supra note 1, at 378-379.

[27] See Delaware Declaration of Rights, 1776, Sec. 10:

…Nor can any man that is conscientiously scrupulous of bearing arms in any case be justly compelled thereto if he will pay such equivalent.

DE. Const. of 1776, Sec. 10, reprinted in Richard L. Perry, Sources of Our Liberties, at 339 (1959).


…Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent….

PA. Const. of 1776, Art. VIII, reprinted in 2 The Federal and State Constitutions, at 1540, 1541.

New Hampshire:

No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.

N.H. Const. of 1784, Pt. I, Art. XIII, reprinted in 2 Federal and State Constitutions, at 1280, 1281.

New York:

That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth.

N.Y. Const. of 1777, Art. XL, reprinted in 2 Federal and State Constitutions, at 1328, 1339.


…nor can any man, who is Conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent….

VT. Const. of 1786, Ch. I, Art. X, reprinted in 2 Federal and State Constitutions, at 1866, 1868.

[28] Rhode Island proposed the following amendment:

That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.

See Jonathan Elliot, ed., 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, at 335 (1836).  [Hereinafter, Elliot’s Debates.]  So also did Virginia & North Carolina.  See 3 Elliot’s Debates, at 659 (Virginia); and 2 Elliot’s Debates, at 244 (North Carolina).  Minorities at Pennyslvania & Maryland also proposed conscientious objector amendments.  See Munoz, supra note 1, at 1111 n. 143.  The Pennsylvania minority’s amendment didn’t mention conscientious objection; but it did mention the “right of conscience”, and prohibited federal infringement of state constitutional rights to religious liberty.  See id.  The Maryland minority’s proposal read:

That no person, conscientiously scrupulous of bearing arms in any case, shall be compelled personally to serve as a soldier.

2 Elliot’s Debates, at 553.

[29] See Barnett, supra note 20, at 33-34 (noting how Madison distinguished between natural rights on the one hand, and positive rights (e.g., trial by jury) established by constitutions).

[30] See Petition for Certiorari in Jenkins v. Commission of Internal Revenue Service, No. 06-1624, at 14-20 (2007) (“[T]he individual right of religious conscience not to be compelled to participate in or support military activity was well recognized at the founding of this nation. […] Accordingly, there is a substantial basis to conclude that a right of conscience not to be compelled to participate in warfare was ‘retained by the people’ from before the founding of the federal government.”).  Apparently Jenkins also made a Ninth Amendment argument at the circuit court level, but the Second Circuit Court of Appeals rejected this argument based on existing precedent.  See Jenkins v. Commissioner of Internal Revenue Service, 483 F.3d 90, 92-93 (2007) (“The [Ninth Amendment] argument [made by Jenkins] is squarely foreclosed…by the Supreme Court’s decision in United States v. Lee.”).

[31] See supra notes 20-29, & accompanying text.

[32] See supra notes 1 & 27-28.  Pacifists understandably (albeit unsuccessfully) objected to the existence of such conditions.  See, e.g., supra note 22, (statement of Representative Sherman, who noted that, “It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other….”).

Although the House’s final draft of the Second Amendment doesn’t explicitly mention substitutes or equivalents, it does end with “in person”.  This latter phrase was added after Reps. Jackson, Smith, & Scott objected that the conscientious objector provision then under discussion, “but no person religiously scrupulous shall be compelled to bear arms”, arguably prohibited Congress from conditioning conscientious objection upon payment of equivalents or provision of a substitute.  See Munoz, supra note 1, at 1112-1115.  It therefore seems likely that “in person” was added to assuage these concerns; and that, as such, the House’s final draft of the Second Amendment was originally understood to permit substitutes or equivalents.  The same could be said of the conscientious objection proposal of the Maryland minority, given its inclusion of the adverb “personally”.  See supra note 28.