The conscience clause Madison wrote for the Bill of Rights and lost

Everybody knows the Second Amendment. Almost nobody knows that the first draft of it contained a sentence about people who would rather die than shoot.

That sentence is gone. It was struck on the way to ratification, and the story of why it vanished is one of the best small lessons in how the Constitution is made: by a compromise, between men who agreed on the principle and could not agree on the words. The result is that one of the oldest claims of conscience in American life, the claim of the man who will not kill, rests today on statutes and court decisions, not on the text of the Bill of Rights.

I want to tell that story, because the Constitution's text deserves to be read with all its drafts, and because the lesson cuts in a direction conservatives tend to forget. A free people ought to leave room for conscience, even when conscience costs the country something.

Madison's draft, June 8, 1789

On June 8, 1789, James Madison rose in the House of Representatives and proposed a package of amendments to the new Constitution. The one that became the Second Amendment read, in his draft:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Compare it with the text we have. The ratified Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Two differences stand out. The order and wording of the militia clause changed. And the last clause of Madison's draft, the exemption for the religiously scrupulous, is gone.

Why was it there? In the eighteenth century the militia was not an elective hobby. Under Article I, Section 8 of the Constitution, Congress has the power "To provide for organizing, arming, and disciplining, the Militia." Citizens were liable for service. For the Quakers, Mennonites, Moravians and others whose faith forbade bearing arms, a militia that Congress could call out and arm on terms of its own choosing raised a real question: would the new national government force a man to violate his religion?

Madison knew the question was live. Pennsylvania had a large Quaker population, and in the House debate members pointed to the amendments proposed by Virginia and the Carolinas as models for the wording. He was taking a concern from the states and trying to put it in the national text.

The House debate

The proposals went to a select committee with one member from each state, which reported in late July. The committee's version kept the conscience clause, and the full House took it up in August, on the seventeenth and again on the twentieth.

The debate is brief and it is revealing. Elbridge Gerry of Massachusetts objected, and his argument was not about the principle of conscience. It was about the power the clause would hand to the government. If the Constitution exempted the "religiously scrupulous," he said, those in power could declare who the religiously scrupulous were and prevent them from bearing arms. His point was that an exception written into the Constitution invites those in power to define it. He proposed limiting the exemption to members of a religious sect, and the House did not accept that.

Another member, James Jackson of Georgia, moved to add the words "upon paying an equivalent to be established by law." Roger Sherman answered that the religiously scrupulous would be equally scrupulous about getting substitutes or paying an equivalent. A motion to strike the clause failed in the Committee of the Whole, 22 to 24, and on August 20 the House added the words "in person."

The House sent the clause on to the Senate on August 24. The Senate's deliberations at the time were conducted in secret, and no record of its debate on the amendment survives. What we know is that when the amendment finally went to the states in late September it had no conscience clause, and the militia language had been rearranged into the form we have.

Here is where honest history has to say what we do not know. We do not know the Senate's reasons. The common inference is that the Senate shared Gerry's concern, that the matter was better left to ordinary legislation than put in the Constitution. That is a reasonable reading. It is not proved.

The steelman: the case for striking it

I want to give the opposing view a fair hearing, because the men who cut the clause were not enemies of conscience.

1. A constitutional exemption invites abuse. Gerry's point has force. If the document says "religiously scrupulous," someone must decide who qualifies, and a hostile government could turn the definition against the very people it was written to protect. A statute that Congress can adjust is more flexible than text that must be amended.
2. The militia clause was about a collective duty. The Amendment's main purpose was to secure the right to keep and bear arms and to preserve the militia as a safeguard against standing armies. A clause that spoke of those who would refuse to serve sat awkwardly in a sentence about the duty to serve.
3. Conscience could be protected by legislation. The states already had exemption laws. Congress could do the same, and it could change the rules as war and circumstance changed, which a fixed constitutional clause could not.

Those are real arguments. Here is the answer to them, and it is the point of the post.

The answer is that leaving conscience to legislation means leaving it to the mood of the legislature. The statutes that protect objectors have been generous in some wars and stingy in others, and the Constitution never guaranteed them. The Founders were skilled enough to know that. They put the most important protections, speech, religion, the press, the jury, into the text precisely so that a passing majority could not take them away. Conscience in war was, by the Founders' own choice, not put into that category. That does not make conscience less important. It makes the history of conscientious objection a history of what a free people chose to grant, and a test of how well it chose.

Quakers, Mennonites and the long history

The people the clause was meant for did not go away. Quakers, Mennonites and Brethren, along with other peace churches, had been in America since the seventeenth century, and the dilemma of war and conscience followed them through every conflict.

The Militia Act of 1792 provided for the enrollment of every free able-bodied white male citizen between eighteen and forty-five. The exemptions it listed were occupational, such as for members of Congress and ferryboatmen. During the Civil War, the Union's draft law allowed a man to hire a substitute or, until mid-1864, to pay commutation money. Objectors who refused to serve often suffered for their position, and some were treated harshly.

The Selective Service Act of 1917 and the modern cases

The modern framework begins with World War I. The Selective Service Act, passed in May of 1917, set up a draft and provided that members of a well-recognized religious sect whose creed or principles forbade participation in war in any form would not be required to serve in combatant forces, though they could be assigned noncombatant duties. The Supreme Court upheld the draft itself in the Selective Draft Law Cases in 1918.

The standard was tied to membership in a recognized church. An objector who held a sincere but personal conviction, or who belonged to no church with such a creed, was left out. Over the next half century, the Court had to decide what "religious training and belief" meant, and three cases did the work.

United States v. Seeger (1965). The 1948 draft law exempted those who, because of "religious training and belief," were conscientiously opposed to war, and defined that as a belief in a relation to a Supreme Being. Daniel Seeger held a sincere conviction against war that did not rest on a traditional belief in God. The Court held unanimously that the statute covered a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption. That reading, a test of sincerity and function rather than of creed, was a generous interpretation of a statute that required a belief in a Supreme Being.

Welsh v. United States (1970). Elliott Welsh had struck the word "religious" from his application and based his objection on moral and ethical grounds. A plurality opinion by Justice Black stretched Seeger further: beliefs that are purely ethical or moral in source and content, but that impose on a person a duty of conscience, could qualify. Justice Harlan concurred in the result but acknowledged the Court was rewriting the statute, and said the better ground was that the exemption as written would violate the Establishment Clause if it favored the religious over the non-religious.

Gillette v. United States (1971). Here the Court drew the line. Guy Gillette and another petitioner objected not to all war but to the Vietnam War in particular, on grounds of conscience. By an 8-to-1 vote the Court, in an opinion by Justice Marshall, held that Congress could limit the exemption to those opposed to war in any form and could decline to exempt selective objectors. The reasons were administrative and practical: a selective-objector exemption would be hard to apply fairly, would invite shams, and would let individuals pass judgment on particular wars. The Court held that the limit did not violate the Establishment or Free Exercise Clauses.

The lesson of the three cases together is a pattern. The Court moved the statute's reach out to every deeply held conscientious conviction, and then drew a line at the point where the government's need to raise an army and treat citizens evenly was at its height. That is a reasonable place to draw it. It is also a line drawn by legislation and statutory interpretation, not by a constitutional guarantee. Conscience gets what Congress and the courts say it gets.

What the Founding tells us now

This is where Madison's lost sentence has a lesson for conservatives. We like to say that the text of the Constitution is the measure. It is. But the text is also silent here, and the silence teaches something.

First, conscience was important enough to Madison that he put it in his first draft. He wrote elsewhere that conscience is the most sacred of all property. The man who understood the Bill of Rights best thought a freedom from compelled killing belonged in it. That should tell us how he valued the underlying right.

Second, the cost of conscience is real, and a free country bears it. A nation at war needs soldiers. Every objector is a burden on someone else. The question is whether the nation is confident enough in its cause and in its institutions to allow a man to refuse and to find other ways to serve. A country that insists on conformity in the most intimate matter, killing on command, has lost a good part of what it was defending. The alternative service programs that the law developed, hospital work, forestry, relief work, were the sensible form of that confidence.

Third, the same principle protects every conscience. The man who will not carry a rifle and the man who will not take part in a ceremony that violates his faith are making kindred claims. If we want the law to respect the second, we have to respect the first. In that sense the conscience clause that Madison lost belongs to the same family as the flag-salute case, in which the Supreme Court held that no official can prescribe what shall be orthodox in matters of conscience. See two schoolgirls, a flag salute and the 1943 ruling that protected conscience for that story.

The objection from duty

Some will say all this is too soft. Citizenship carries duties, and the first is to defend the country. The objector enjoys the freedom that others pay for.

It is a serious objection, and the right answer is to concede its force. A man who refuses to fight owes the community something in return: alternative service, honest dealing and an acceptance of the penalty if the law finds him insincere. The tradition of conscientious objection in America, at its best, has asked for exactly that. The objectors in the peace churches were not shirkers. Many served as medics, farmers and relief workers, and many were jailed for their principles.

It is also worth saying that the argument cuts the other way. A country's willingness to let a minority of its citizens dissent from the use of force is a mark of its strength. We do not defend liberty by suspending it. For more on how the Founders handled the arms question, see What the ratifying conventions demanded before Madison drafted an arms right, George Mason and the well regulated militia composed of the body of the people, and Madison's 1792 Essay Says Your Conscience Is Your Property Too. The text of the Bill of Rights is on the Constitution page.

The case in brief

1. Madison's June 8, 1789 draft of what became the Second Amendment included a clause that no person religiously scrupulous of bearing arms should be compelled to render military service in person.
2. The House debated it in August, where Gerry warned that an exemption written into the Constitution would let the government decide who counted as scrupulous, and the clause did not survive the Senate.
3. Conscientious objection has since rested on statute: the Selective Service Act of 1917, Seeger (1965), Welsh (1970) and Gillette (1971) widened the exemption and then drew a line at selective objection.
4. Leaving conscience to legislation means it is only as secure as the legislature's mood, which is why a free people has to choose, repeatedly, to leave room for it.
5. The same respect for conscience that protects the pacifist protects the believer who refuses a ceremony or a pledge, and a conservative should defend both.

What you can do: read the Second Amendment and Article I, Section 8, Clause 16 in the Constitution, then find out what your state's law provides for conscientious objectors to militia or military service.