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73 W. Va. L. Rev. 138 (1970-1971)
Conscientious Objection: The Constitutional Questions

handle is hein.journals/wvb73 and id is 142 raw text is: CONSCIENTIOUS OBJECTION: THE CONSTITUTIONAL QUESTIONS* HoWARD R. LumU* I. INTRODUCTION The Military Selective Service Act of 19671 exempts from com- batant training and service in the armed forces any person who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' Under this, and preceding similar provisions, thousands of young men' have been exempted from mili- tary service because of their beliefs, while millions of other young men-in spite of their beliefs-have been required to serve. The Supreme Court has never held that the Constitution re- quires an exemption for conscientious objectors to war, nor has it held that such an exemption is constitutionally prohibited. The de- cided cases dealing with the exemption apppear to have assumed that it is a matter of legislative grace on the part of the Congress4 subject, however, to constitutional limitations.' By judicially expanding the scope of the statutory exemption through statutory interpretation, the Court has avoided reaching the constitutional questions.6 Indeed, it may be said that the Court has evaded the issue * Note: The following article was written before the Supreme Court's decision in Gillette v. United States and Negre v. Larsen, 91 S. Ct. 828 (1971), was delivered. The judgment of the Court in those cases was that the conscien- tious objector exemption of the Military Selective Service Act of 1967 is not available to one who is sincerely opposed to participation only in a particular war, i.e., the selective objector, even though that objection is the result of religious training and belief. Following the Supreme Court's decision in these cases, the author prepared an addendum to his article, After Gillette and Negre-Some Answers which is printed infra at 156. ** Associate Professor of Law, Villanova University School of Law. A.B., 1960, West Virginia University; J.D., 1963 University of Michigan. Member West Virginia and District of Columbia Bars. 1 50 App. U.S.C. § 451 et seq., 62 Stat. 604 as amended, 65 Stat. 75, 81 Stat. 100. 250 App. U.S.C. § 456(j), 81 Stat. 104 (1967). 'As of December 31, 1970, there were 28,188 registrants classified in category I-0 (conscientious objector). Selective Service News 4 (February 1971). Not included in these figures are registrants classified in category I-A-O (conscientious objectors willing to serve in a noncombatant capacity). United States v. Macintosh, 283 U.S. 605, 623 (1931). s United States v. Seeger, 326 F.2d 846, 848 (2d Cir. 1964). 6See Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). 7 See Welsh v. United States, 398 U.S. 333, 344 (1970) (concurring opinion of Justice Harlan).

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