Wednesday, April 24, 2013

Question 22

 It is one of my  firm beliefs is that  history is cyclical, and whatever  insanity and oppression  a state  tries to foist upon its citizenry, one can usually find a historical precedent somewhere  where a very similar thing was done to one degree or another.
  In 1925 Douglas Macintosh, a Canadian theologian who had lived in the US since 1916, applied to be a naturalized  citizen of the United States.  The preliminary form for petition of naturalization at the time  contained a series of questions, and based off of his answer to several of  the questions, Mr. Macintosh was denied citizenship. The questions, his answers, and the eventual Supreme Court case that came out of it, are all very interesting to any  serious student of  liberty.
 Question 20 on the form read . "Have you read the following oath of allegiance? (which is then quoted). Are you willing to take this oath in becoming a citizen?". Mr. Macintosh answered 'yes'.  Question 22 on the form read "If necessary, are you willing to take up arms in defense of this country?". Mr Macintosh had served in the Canadian military  as a chaplain during WWI, and was not a pacifist, but his answer to question 22 is so remarkable I  feel it would be remiss not to quote it in its entirety:

"I am willing to do what I judge to be in the best interests of my country, but only in so far as I can believe that this is not going to be against the best interests of humanity in the long run. I do not undertake to support 'my country, right or wrong' in any dispute which may arise, and I am not willing to promise beforehand, and without knowing the cause for which my country may go to war, either that I will or that I will not 'take up arms in defense of this country,' however 'necessary' the war may seem to be to the Government of the day. 'It is only in a sense consistent with these statements that I am willing to promise to 'support and defend' the Government of the United States 'against all enemies, foreign and domestic.' But, just because I am not certain that the language of questions 20 and 22 will bear the construction I should have to put upon it in order to be able to answer them in the affirmative, I have to say that I do not know that I can say 'Yes' in answer to these two questions."

 In a later hearing he sought to clarify his position. He said that he was not a pacifist; that, if allowed to interpret the oath for himself, he would interpret it as not inconsistent with his position and would take it. He then proceeded to say that he would answer question 22 in the affirmative only on the understanding that he would have to believe that the war was morally justified before he would take up arms in it or give it his moral support. He was ready to give to the United States all the allegiance he ever had given or ever could give to any country, but he could not put allegiance to the government of any country before allegiance to the will of God. He did not anticipate engaging in any propaganda against the prosecution of a war which the  government had already declared and which it considered to be justified; but he preferred not to make any absolute promise at the time of the hearing, because of his ignorance of all the circumstances which might affect his judgment with reference to such a war. He did not question that the government under certain conditions could regulate and restrain the conduct of the individual citizen, even to the extent of imprisonment. He recognized the principle of the submission of the individual citizen to the opinion of the majority in a democratic country; but he did not believe in having his own moral problems solved for him by the majority. The position thus taken was the only one he could take consistently with his moral principles and with what he understood to be the moral principles of Christianity. He recognized, in short, the right of the government to restrain the freedom of the individual for the good of the social whole; but was convinced, on the other hand, that the individual citizen should have the right respectfully to withhold from the government military services (involving, as they probably would, the taking of human life), when his best moral judgment would compel him to do so. He was willing to support his country, even to the extent of bearing arms, if asked to do so by the government, in any war which he could regard as morally justified. 
   In  1931, his  appeal was carried to the Supreme Court in United States vs Macintosh and his citizenship denied.  The majority opinion delivered  by Justice Sutherland is  chilling in places (emphasis mine):

"Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes."

And several paragraphs later:

"Clearly, it would seem, in order that the court and the government, whose power and duty in that respect these provisions take for granted, may discover whether the applicant is fitted for citizenship-and to that end, by actual inquiry, ascertain, among other things, whether he has intelligence and good character; whether his oath to support and defend the Constitution and laws of the United States, and to bear true faith and allegiance to the same, will be taken without mental reservation or purpose inconsistent therewith; whether his views are compatible with the obligations and duties of American citizenship; whether he will upon his own part observe the laws of the land; whether he is willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do."

 "That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution."

"Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."

"Fro its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law. In the words of John Quincy Adams, 'This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life."

... And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.'
The applicant for naturalization here is unwilling to become a citizen with this understanding. He is unwilling to leave the question of his future military service to the wisdom of Congress, where it belongs, and where every native-born or admitted citizen is obliged to leave it.

  The Supreme Court took the position way back in 1931 that  your conscience must be suborned to the health of the  state, and to  find a war unjustified or  running counter to your morality is in itself, an act of disloyalty to the state. They also took the position that  it is your duty as a citizen not to protect yourself or your neighbors, but the  government even as it acknowledged that the  number one enemy of liberty is sustained warfare.
  Justice Hughes offered his dissenting view that, while hardly a libertarian manifesto, has some  bright spots in it:

"When we consider the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God, I find it impossible to conclude that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties. "

When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. "

"There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one's conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. "

    Despite such pleas of dissent, the Supreme Court ruled against Macintosh in a  5-4 decision. Not only  did the supposed 'guardians of the Constitution' take a position that flies in the face of all that it means to be free,  later they changed their minds, overturning the decision in 1983.  Conservatives are often blinded by a  nostalgia for a past that never was and  will refer back to some  mythical past in which the government  obeyed the restrictions of the  Constitution as a matter of practice.  This  rose-colored  view of history is dangerous and those who hold that the Supreme Court will thwart evil or destructive legislation need to to take  close look at this case, and cases like it to see that the Supremes record is spotty at best, and nightmarish at times.  The  true guardian of your liberty, and of your conscience, is you, and it has always been that way, even back in the 'good old days'.








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