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
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
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 ...