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[Cite as Hamilton v. Regents, 293 U.S. 245 (1934). NOTE: This decision concerns conscientious objections to federally mandated State military training in universities. Appellant argued compulsory service violates Fourteenth Amendment and refered to United States v. Cruikshank, 92 U.S. 542 which found the right to arms to be an individual right. (P. 247) In support of the State, the Court refered to the Second Amendment saying, "So long as [the state's] action is within retained powers and not inconsistent with any exertion of the authority of the national government, and trangresses no right safeguarded to the citizen by the Federal Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment. ..." (P. 260) Oddly, if this decision supports the proposition that the right is a state's right and not individual, it is a rather unusual definition of a "right" that must be "not inconsistent with any exertion of the authority of the national government" which government presumably the right is in opposition to. This interpretation is also at odds with numerous other decisions in which the Second Amendment is spoken of in the same terms as other rights which have never been considered anything other than individual. (See as early as Dred Scott 60 U.S. 393, 417, 450-451 (1857), and as late as Casey, 505 U.S. 833, 848-849 (1992).) The earliest mention of the Second Amendment similarly involved a state's power over militia--but spoke of the right to arms in terms that it "may not, perhaps, be thought to have any important bearing on this point." Houston, 18 U.S. (5 Wheat.) 1, 52-53 (1820).]

[Hamilton v. Regents continued
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[paragraph continued from previous page] clause. Therefore we need only decide whether by state action the "liberty" of these students has been infringed.

There need be no attempt to enumerate or comprehensively to define what is included in the "liberty" protected by the due process clause. Undoubtedly it does include the right to entertain the beliefs, to adhere to the principles and to teach the doctrines on which these students base their objections to the order prescribing military training. Meyer v. Nebraska, 262 U.S. 390, 399. Pierce v. Society of Sisters, 268 U.S. 510. Stromberg v. California, 283 U.S. 359, 368-369. Near v. Minnesota, 283 U.S. 697, 707. The fact that they are able to pay their way in this university but not in any other institution in California is without significance upon any constitutional or other question here involved. California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war, preparation for war and military education. Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no more than an assertion that the due process clause of the Fourteenth Amendment as a safeguard of "liberty" confers the right to be students in the state university free from obligation to take military training as one of the conditions of attendance.

Viewed in the light of our decisions that proposition must at once be put aside as untenable.

Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend government against all (p.263)enemies. Selective Draft Law Cases, supra, p. 378. Minor v. Happersett, 21 Wall. 162, 166.

United States v. Schwimmer, 279 U.S. 644, involved a petition for naturalization by one opposed to bearing arms in defense of country. Holding the applicant not entitled to citizenship, we said (p. 650): "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."

In United States v. Macintosh, 283 U.S. 605, a later naturalization case, the applicant was unwilling, because of the conscientious objections, to take unqualifiedly the statutory oath of allegiance which contains this statement: "That he will support and defend the Constitution and laws of the United States against all enemies, foreign or domestic, and bear true faith and allegiance to the same." 8 U.S.C., § 381. His petition stated that he was willing if necessary to take up arms in defense of this country, "but I should want to be free to judge of the necessity." In amplification he said: "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." The opinion of this Court quotes from petitioner's brief a statement to the effect that it is a "fixed principle of our Constitution, zealously guarded by our laws, that a citizen cannot be forced and need not bear arms in a war if he has conscientious religious scruples against doing so." And, referring to that part of the (p.264)argument in behalf of the applicant, this Court said (p. 623): "This, if it means what it seems to say, is an astonishing statement. Of course, there is no such principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him.... The privilege of the native-born conscientious objector to avoid bearing arms comes not from the Constitution but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general. In Jacobson v. Massachusetts, 197 U.S. 11, 29, this Court [upholding a state compulsory vaccination law] speaking of the liberties guaranteed to the individual, by the Fourteenth Amendment, said: '... 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.'"

And see University of Maryland v. Coale, 165 Md. 224, 167 Atl. 54, a case, similar to that now before us, decided against the contention of a student in the University of Maryland who on conscientious grounds objected "to military training there required. His appeal to this Court was dismissed for the want of a substantial federal question. 290 U.S. 597.(p.265)

Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in military science and tactics, transgresses any constitutional right asserted by these appellants.

The contention that the regents order is repugnant to the Briand-Kellogg Peace Pact requires little consideration. In that instrument the United States and the other high contracting parties declare that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another and agree that the settlement or solution of all disputes or conflicts which may arise among them shall never be sought except by pacific means. Clearly there is no conflict between the regents order and the provisions of this treaty.


Mr. Justice Cardozo.

Concurring in the opinion I wish to say an extra word. I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states.

Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the free exercise" of religion as the phrase was understood by the founders of the nation, and by the generations that have followed. Davis v. Beason, 133 U.S. 333, 342.

There is no occasion at this time to mark the limits of governmental power in the exaction of military service when the nation is at peace.[265.*] The petitioners have not been required to bear arms for any hostile purpose, offensive or defensive, either now or in the future. They have (p.266)not even been required in any absolute or peremptory way to join in courses of instruction that will fit them to bear arms. If they elect to resort to an institution for higher education maintained with the state's moneys, then and only then they are commanded to follow courses of instruction believed by the state to be vital to its welfare. This may be condemned by some as unwise or illiberal or unfair when there is violence to conscientious scruples, either religious or merely ethical. More must be shown to set the ordinance at naught. In controversies of this order courts do not concern themselves with matters of legislative policy, unrelated to privileges or liberties secured by the organic law. The First Amendment, if it be read into the Fourteenth, makes invalid any state law "respecting an establishment of religion or prohibiting the free exercise thereof." Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is government, establishing a state religion when it insists upon such training. Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of peace and war.

The meaning of those liberties has striking illustration in statutes that were enacted in colonial times and later. They will be found collected in the opinion of the lower court in United States v. Macintosh, 42 F. (2d) 845, 847, 848; 283 U.S. 605, 632, and more fully in the briefs of counsel. From the beginnings of our history Quakers and other conscientious objectors have been exempted as an act of grace from military service, but the exemption, when granted, has been coupled with a condition, at least in many instances, that they supply the army with a substitute or with the money necessary to hire one. This (p.267)was done in Virginia in 1738 and 1782 (5 Hening 16; 11 id. 18; cf. 8 id. 242, 243; 10 id. 261, 262; 334, 335); in Massachusetts, (Acts and Resolves, 1758, vol. 4, p. 159; 1759, 4 id. 193); in North Carolina (1781, 24 State Records 156); and in New York (Colonial Laws, 1755, vol. 3, pp. 1068, 1069). A like practice has been continued in the constitutions of many of the states. See, e.g., Constitution of Alabama, 1819, 1865, 1867 (F. N. Thorpe, Federal and State Constitutions, Colonial Charters and Other Organic Laws, vol. 1, pp. 105, 119, 147); Arkansas, 1868 (Thorpe, vol. 1, p. 325); Colorado, 1876 (Thorpe, vol. 1, p. 507); Idaho, 1889 (Thorpe, vol. 2, p. 943); Illinois, 1819, 1870 (Thorpe, vol. 2, pp. 980, 1044); Indiana, 1816 (Thorpe, vol. 2, p. 1067); Iowa, 1846, 1857 (Thorpe, vol. 2, pp. 1132, 1148); Kansas, 1855, 1857, 1859 (Thorpe, vol. 2, pp. 1190, 1214, 1253); Kentucky, 1792, 1799, 1850, 1890 (Thorpe, vol. 3, pp. 1271, 1283, 1307, 1350); Louisiana, 1879, 1898 (Thorpe, vol. 3, pp. 1501, 1587); Michigan, 1850 (Thorpe, vol. 4, p. 1966); Mississippi, 1817 (Thorpe, vol. 4, p. 2041); Missouri, 1820, 1875 (Thorpe, vol. 4, pp. 2164, 2268); New Hampshire, 1794, 1902 (Thorpe, vol. 4, pp. 2472, 2495); New York, 1821, 1846 (Thorpe, vol. 5, pp. 2648, 2671); Pennsylvania, 1790, 1838 (Thorpe, vol. 5, pp. 3099, 3111); Vermont, 1793 (Thorpe, vol. 6, p. 3763). For one opposed to force, the affront to conscience must be greater in furnishing men and money wherewith to wage a pending contest than in studying military science without the duty or the pledge of service. Never in our history has the notion been accepted, or even, it is believed, advanced, that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state. On the contrary, the very lawmakers who were willing to give release from warlike acts had no thought that they were doing anything (p.268)inconsistent with the moral claims of an objector, still less with his constitutional immunities, in coupling the exemption with these collateral conditions.

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle--which may turn out in the end to be a delusion or an error--does not prove by his martyrdom that he has kept within the law.

I am authorized to state that Mr. Justice Brandeis and Mr. Justice Stone join in this opinion.

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[265.*] As to the duty of the able-bodied citizen to aid in suppressing crime, see Babington v. Yellow Taxi Corp., 250 N.Y. 14, 16; 164 N.E. 726, and the authorities there assembled.