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May 27, 1968


C.A. 7th Cir. Reported below: 387 F.2d 781.

[ 391 U.S. Page 936]

Certiorari denied.

Memorandum of MR. JUSTICE STEWART.

 This case, like Hart v. United States, No. 1044, Misc., post, p. 956, involves the power of Congress, when no war has been declared, to enact a law providing for a limited period of compulsory military training and service, with an alternative of compulsory domestic civilian service under certain circumstances. It does not involve the power, in the absence of a declaration of war, to compel military service in armed international conflict overseas. If the latter question were presented, I would join MR. JUSTICE DOUGLAS in voting to grant the writ of certiorari.

MR. JUSTICE DOUGLAS, dissenting.

Petitioner, who describes himself as a Jehovah's Witnesses minister, was classified by his Selective Service Appeal Board in August 1965 as a conscientious objector. See § 6 (j) of the Universal Military Training and Service Act of 1948, 62 Stat. 612 (now the Military Selective Service Act of 1967), as amended, 81 Stat. 104, 50 U.S.C. App. § 456 (j) (1964 ed., Supp. III). Under § 6 (j), as it read during all dates relevant to this case, a conscientious objector who, like petitioner, is also opposed to noncombatant military service, may in lieu of induction "be ordered by his local board ... to perform ... such civilian

[ 391 U.S. Page 937]

     work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate ..." Beginning in October 1965 petitioner and his Local Board exchanged a series of letters in which the Board explained to petitioner the types of civilian work available and petitioner asserted his religious scruples against serving the United States Government in any capacity, including civilian work programs. Petitioner reiterated this position in a personal meeting with his Local Board.

On February 7, 1966, the Board sent petitioner an order to report on February 21 to an Illinois state hospital for civilian work assignment. However, on the day he was due to report, petitioner notified the Board that he refused to do so for religious reasons.

By indictment, petitioner was charged with willful failure to report as ordered, in violation of § 12 (a) of the Act*fn1 At his non-jury trial petitioner moved for judgment of acquittal. That motion was denied, petitioner was convicted and sentenced to three years' imprisonment, and the Court of Appeals affirmed, one judge dissenting. United States v. Holmes, 387 F.2d 781 (C.A. 7th Cir.).

Petitioner asks this Court to decide whether a draft*fn2 of men into the Armed Forces in time of peace is

[ 391 U.S. Page 938]

     constitutionally permissible. In the absence of a declaration of war, he argues, a draft is not authorized and is equivalent to involuntary servitude. The Court of Appeals held that Congress' power to conscript men into the Armed Forces was not so limited, and the Government, opposing certiorari, states that "[even] assuming that the present time is one of 'peace,' it has long been settled that the power to raise armies by conscription is not limited to periods of war or national emergency," citing United States v. Henderson, 180 F.2d 711 (C.A. 7th Cir.), cert. denied, 339 U.S. 963, and Etcheverry v. United States, 320 F.2d 873 (C.A. 9th Cir.), cert. denied, 375 U.S. 930

It is clear from our decisions that conscription is constitutionally permissible when there has been a declaration of war. But we have never decided whether there may be conscription in absence of a declaration of war. Our cases suggest (but do not decide) that there may not be.

In Hamilton v. Regents of the University of California, 293 U.S. 245, 265, Mr. Justice Cardozo, concurring (joined by Justices Brandeis and Stone), indicated that "governmental power in the exaction of military service when the nation is at peace" was an open question.

[ 391 U.S. Page 939]

     At the time Mr. Justice Cardozo wrote (1934) the Selective Draft Act of 1917, 40 Stat. 76, had been tested in this Court and its validity and congressional power to conscript men for military service upheld. This Act, however, was enacted May 18, 1917, after Congress had declared war on the German Empire on April 6, 1917. (S.J. Res. No. 1, 65th Cong., 40 Stat. 1.) Thus, the Court had no occasion to reach the problem of drafting men in a technical time of peace, that is, a period not covered by declaration of war. Selective Draft Law Cases, 245 U.S. 366. There the Court stated that the basis of congressional power to conscript had to be found in its Art. I, § 8, power to "make rules for the government and regulation of the land and naval forces," to "raise and support armies," and "to declare war." Id., at 377.

None of the decisions prior to the Selective Draft Law Cases touches directly on the power to conscript in peacetime, and the reason would appear to be that prior to 1917 the Congress had not enacted a true conscription or draft provision. In 1794 and 1797 Congress enacted measures authorizing the President to require state governors to organize a militia. (1 Selective Service System, Backgrounds of Selective Service, Vol. 1, 59-60 (1947).) In 1814 President Madison by his Secretary of War, James Monroe, proposed a form of draft into the federal army which would raise some 80,000 recruits for two years' service. (6 Brant, James Madison 337 (1961); 2 Selective Service System, The Selective Service Act, Vol. III, App. A, 143 (1954). ) A bill along this line passed the Senate, 19 to 12, but was defeated in the House (6 Brant, at 349, 359-360)*fn3, and the War of 1812 was completed with use of volunteers and the state militia.

[ 391 U.S. Page 940940]


The Civil War provision, the Enrollment Act of 1863, 12 Stat. 731, was the first enactment resembling what can be called a "draft" provision*fn4 It created, however, a "draft" on paper only. Under § 13 of the Enrollment Act enrollees could procure a substitute to avoid service

[ 391 U.S. Page 941]

     or buy their way out for $300 or less. The result was that "[the] poor hired themselves to serve for the well-to-do, as the law contemplated; then a flourishing traffic in substitution blossomed out ..." (Backgrounds of Selective Service, supra, at 66.) The Act procured only 6% of the total manpower for the North in the war: 46,000 conscripts and 118,000 substitutes. See J. Randall & D. Donald, The Civil War and Reconstruction 315 (2d ed. 1961); and see Brandon, Where the Action Was in 1863, The Progressive, April 1968, at 19, and J. McCague, The Second Rebellion (1968), discussing extensive riots ignited by the 1863 Conscription Act.

The Act of 1863 was never directly attacked in this Court, and thus no opportunity to weigh the significance of the absence of a declaration of war (see the Prize Cases, 2 Black 635) arose. Many years later this Court twice suggested in dicta that the Act of 1863 was valid, but the absence of a declaration of war was not considered*fn5 These dicta would have particularly little weight

[ 391 U.S. Page 942]

     in view of the fact that what the 1863 Act created was not a true "draft" as we understa children, etc.

The Act of 1863 was never directly attacked in this Court, and thus no opportunity to weigh the significance of the absence of a declaration of war (see the Prize Cases, 2 Black 635) arose. Many years later this Court twice suggested in dicta that the Act of 1863 was valid, but the absence of a declaration of war was not considered*fn5 These dicta would have particularly little weight

[ 391 U.S. Page 942]

     in view of the fact that what the 1863 Act created was not a true "draft" as we understand that term today.

Dicta in three post-Civil War cases indicated in a broad sense that the Court believed the Congress had power to enact a draft. Tarble's Case, 13 Wall. 397; Street v. United States, 133 U.S. 299; and In re Grimley, 137 U.S. 147. But none of these cases factually concerned conscription, and there is no reason to believe that the Court, in indicating that conscription could be valid, had in mind a peacetime draft.

During the Spanish-American War no draft provision was enacted - Congress merely called for a volunteer army. Apart from certain laws reorganizing the national militia, it was not until the Selective Draft Act of 1917 that Congress provided for conscription into the Regular Army.

Accordingly, Mr. Justice Cardozo's statement in Hamilton that Congress' power to institute a peacetime draft was an open question is vindicated by the pre-1934 decisions of this Court. Turning to post-1934 decisions of this Court, the same conclusion follows. The Act of 1917 was superseded by the Selective Training and Service Act of 1940, 54 Stat. 885. No decision directly attacking the constitutional basis of congressional power to conscript, as exercised in the 1940 Act, came before this Court. In those decisions involving application of the Act, the attempt to induct the potential soldier had occurred after the declaration of war with Japan on December 8, 1941 (55 Stat. 795), so that the issue of a peacetime draft was not before the Court. Thus, in Billings v. Truesdell, 321 U.S. 542, where a 1942 induction was in issue, the Court stated: "We have no doubt of the power of Congress to

[ 391 U.S. Page 943]

     enlist the manpower of the nation for the prosecution of the war and to subject to military jurisdiction those who are unwilling, as well as those who are eager, to come to the defense of their nation in its hour of peril." Id., at 556. (Emphasis added.)

In 1948 the Act of 1940 was superseded by the Universal Military Training and Service Act, 62 Stat. 604, which in turn forms the basis of the current draft law, the Military Selective Service Act of 1967, 81 Stat. 100, 50 U.S.C. App. § 451 et seq. (1964 ed., Supp. III). No direct attack was made in this Court on the power of Congress to conscript, as exercised in the 1948 Act, but application of the Act was before the Court in two Korean War period cases. Orloff v. Willoughby, 345 U.S. 83, concerned a petitioner called up under the doctors' draft provisions of the Act who demanded that he either be commissioned an officer and assigned medical duties in the area of his specialty or released. The doctor was inducted on July 26, 1951, before the effective date of termination of our state of war with either Germany (October 19, 1951) or Japan (April 28, 1952). No question of unlawful peacetime draft was raised or alluded to in the case.

United States v. Nugent, 346 U.S. 1, concerned the procedures for administrative appeal of those claiming to be conscientious objectors, one of the petitioners having been called for induction in November 1951 and the other in February 1952. The Court said:

"The Selective Service Act is a comprehensive statute designed to provide an orderly, efficient and fair procedure to marshal the available manpower of the country, to impose a common obligation of military service on all physically fit young men. It is a valid exercise of the war power. It is calculated to function - it functions today - in times of peril." Id., at 9, decided June 8, 1953. (Emphasis added.)

[ 391 U.S. Page 944]

     In that case the declaration of war against Japan in 1941 still had effect at the time of petitioners' induction, although there had been no declaration of war accompanying the Korean conflict*fn6

The Court has held that "[war] does not cease with a cease-fire order ..." Ludecke v. Watkins, 335 U.S. 160, 167. It "continues for the duration of [the] emergency" (Woods v. Miller Co., 333 U.S. 138, 141), and empowers the Government "to guard against the immediate renewal of the conflict." Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 161 (quoting from Stewart v. Kahn, 11 Wall. 493, 507). In the Kentucky Distilleries case the Court indicated that war powers endure for some purposes until the treaty of peace is effective*fn7 If, for the

[ 391 U.S. Page 945]

     purposes of the draft, war continues until the treaty is effective, the attempted inductions of the petitioners in the Nugent case were manifestly not peacetime inductions.

In World War II Germany surrendered May 8, 1945, and Japan surrendered September 2, 1945. See Lee v. Madigan, 358 U.S. 228, 230. On December 31, 1946, the President proclaimed the cessation of hostilities, declaring that a state of war still existed. (12 Fed. Reg. 1.) Congress declared the state of war with Germany terminated on October 19, 1951 (H.J. Res. 289, 65 Stat. 451) and the President proclaimed the same on October 24, 1951 (66 Stat. c3). The effective date of termination of a state of war with Japan was April 28, 1952, when the Japanese Peace Treaty took effect (66 Stat. c31). See Lee v. Madigan, 358 U.S. 228, 230.

Mr. Justice Cardozo's question about peacetime draft seems, therefore, to be an open one still. While some decisions suggest that war powers may be exercised in an "emergency" prior to declaration of war, e.g., Silesian-American Corp. v. Clark, 332 U.S. 469, 476, there are other decisions directly linking the power of conscription to Congress' power under Art. I, § 8, cl. 11, to "declare war."*fn8 For example, in United States v.

[ 391 U.S. Page 946283]

     U.S. 605, the Court said: "In express terms Congress is empowered 'to declare war,' which necessarily connotes the plenary power to wage war with all the force necessary to make it effective; and 'to raise ... armies,' which necessarily connotes the like power to say who shall serve in them and in what way." Id., at 622.

This Court has not reached the merits of the question which I have been discussing since the Prize Cases, 2 Black 635, decided in 1863. Even though Lincoln was putting down an insurrection within the country, the Court was divided five-to-four, Mr. Chief Justice Taney

[ 391 U.S. Page 947]

     and Justices Catron, Clifford, and Nelson*fn9 voting that the President alone had no power to place an embargo under which a British ship was seized while in Hampton Roads.

Putting down an internal insurrection, like defending our shores against an aggressor, is certainly quite different from launching hostilities against a nation or a people overseas*fn10 I express no opinion on the merits.

[ 391 U.S. Page 948]

     But there is a weighty view that what has transpired respecting Vietnam is unconstitutional, absent a declaration of war; that the Tonkin Gulf Resolution is no constitutional substitute for a declaration of war; that the making of appropriations was not an adequate substitute; and that "executive war-making is illegal." Those are the views of Francis D. Wormuth in The Vietnam War: The President versus the Constitution (1968)*fn11 Many share his views*fn12 Another professor has recently pointed out the serious deleterious effects in the country stemming from the Court's failure to decide whether the President may constitutionally wage a foreign war in Vietnam without a declaration of war by Congress. Hughes, Civil Disobedience and the Political Question Doctrine, 43 N.Y.U.L. Rev. 1 (1968). In these types of cases, he says, "to deny certiorari, to dismiss suits without

[ 391 U.S. Page 949]

     a reasoned opinion has a tendency to arouse suspicion that the Court is simply shrinking from making pronouncements about the basic norms of the [constitutional] system." Id., at 18. If an executive war is unconstitutional, he says, but the Court refuses to invalidate it, then the President's "conduct strengthens the moral case for disobeying executive orders which stem from his departure from constitutional demands." Id., at 19.

As I said, the question whether there can be conscription when there has not been a declaration of war, has never been decided by this Court. It is an important question. It is a recurring question. It is coming to us in various forms in many cases as a result of the conflict in Vietnam. I think we owe to those who are being marched off to jail for maintaining that a declaration of war is essential for conscription an answer to this important undecided constitutional question.

I would therefore grant certiorari in this case.

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