THE COURTS AND VIETNAM
Louis Loeb*
America's misadventure in Vietnam has aptly been described as a
tragedy,' the dimensions of which are still not fully measured. The toll
in human life and misery in Vietnam is but one of the tragic aspects;
another is the division at home and the distortion of the Nation's
social priorities. While the primary focus of criticism has been
directed at former President Lyndon B. Johnson2 and his advisors,
any long term historical assessment of American involvement in the
Vietnam conflict should include any group of decision-makers which
directly or indirectly has contributed to the tragedy.
Congress is one such decision-making institution which has largely
acquiesced in the course of Executive-directed events in Southeast
Asia. The courts are another, and it is the purpose of this article to
assess their role in the Vietnam conflict and to determine the measure
of responsibility they must bear.
The choice of such a subject is appropriate in an issue largely
devoted to the role of the courts. For my late friend and colleague,
Professor Dan Berman, was intrigued by the courts, especially the
Supreme Court, as protectors of the civil rights and liberties of
disadvantaged and dissident minorities. Professor Berman looked to
the courts to do those things which other political decision-makers
were unwilling or incapable of doing. In the case of Vietnam, his
expectations would not have been fulfilled.
The conflict in Vietnam has generated a host of issues.3 Alexis
deTocquville would feel vindicated by the continued revelance of his
perceptive insight into the politico-legal matrix of American culture:
"[s]carcely any political question arises in the United States that is
not resolved, sooner or later, into a judicial question." 4 Of primary
interest here are those cases where the principal issue has been the
* Professor, School of Government and Public Administration, The American University. The
author wishes to acknowledge the considerable research assistance provided byMichel A.
LaFond of the Law Review Staff.
I. By Richard Goodwin who served both Presidents Kennedy and Johnson as an advisor:
R.GOODWIN, TRIUMPH OR TRAGEDY, REFLECTIONS ON VIETNAM (1966).
2. See. e.g., E. GOLDMAN, THE TRAGEDY OF LYNDON JOHNSON (1969).
3. On the international law aspects see Schick, Some Reflections on the Legal Controversies
Concerning America's Involvement in Vietnam, 17 INT'L AND COMPARATIVE L.Q. 953 (1968) and
Ferencz, War Crimes Law and the Vietnam War, 17 AM. U.L. Rev. 403 (1968).
4. 1 DE TOCQUEVILLE, DEMOCRACY IN AMERICA, 290 (1960).
1969)
THE CO UR TS A ND VIETNAM
legality of the war, the legality of the draft in peacetime, or bothY It
is in such cases that the legal issues thinly mask a manifestation of
5. These issues have been raised in the following situations: (1) Cases involving a refusal to
report for induction and raising the issue of the legality of the war: Mitchell v. United States,
369 F. 2d 323 (2d Cir. 1966), cert. denied. 386 U.S. 972 (1967); United States v. Valentine, 288
F. Supp. 957 (P.R. 1968); (2) Attempts by those already in the service to prevent their being
sent to Vietnam and raising the issue of the legality of the war: Luftig v.McNamara, 252 F.
Supp. 819 (D.D.C. 1966), aJffd, 373 F. 2d 664 (D.C. Cir. 1967), cert. denied sub. noi. Mora v.
McNamara, 389 U.S. 934 (1967); (3) Refusal of those classified as conscientious objectors to
accept alternative service and raising the issue of the legality of a peacetime draft: Holmes v.
United States, 387 F. 2d 781 (7th Cir. 1967), cert. denied 391 U.S. 936 (1968); United States v.
Hart, 382 F. 2d 1020 (3d Cir. 1967), cert. denied, 391 U.S. 956 (1968); United States v. Hogans,
253 F. Supp. 409 (E.D.N.Y. 1966), afj'd,-369 F. 2d 359 (2d Cir. 1966); (4) Expressing political
and/or moral opposition to the war in Vietnam by destroying or burning draft cards: Wills v.
United States. 384 F. 2d 943 (9th Cir. 1967), cert. denied, 392 U.S. 908 (1968); Smith v. United
States, 368 F. 2d 529 (8th Cir. 1966); United States v. Miller, 367 F. 2d 72 (2d Cir. 1966), cert.
denied, 386 U.S. 911 (1967); United States v. O'Brien, 376 F. 2d 538 (lst Cir. 1967), vacated, 391
U.S. 367 (1968); and (5) Organizing and/or encouraging opposition to the draft: United States v.
Coffin, No. 68-I-F (D. Mass. filed Jan. 6, 1968; verdict June I1, 1968), appeal docketed sub. norw.
United States v. Spock, Nos. 7205, 7206, 7207, and 7208, 1st Cir., August 21, 1968.
Several other issues considered peripheral to this study have arisen out of the war or the draft.
Among these has been the refusal of service personnel to obey orders because of professional
and/or moral objections to the war; see on the verdict of guilty and for a review of the court
martial of Captain Howard B. Levy, The New York Times, June 3, 1967, at I, col. 7 (Late City
Edition), on Levy's application for bail pending appeal Levy v. Resor, 17 U.S.C.M.A. 135,
C.M.R. 399 (1967), 384 F. 2d 689 (4th Cir. 1967), cert. denied, 389 U.S. 1049 (1968), and
Glasser, Judgment at Fort Jackson: The Court Martial of Captain Howard B. Levy, 4 L. IN
TRANS.Q. 123 (1967). Regarding the case of Air Force Captain Dale Noyd, see Noyd v.
McNamara, 267 F. Supp. 701 (Colo. 1967), affd, 378 F. 2d 538 (10th Cir. 1967), cert. denied,
389 U.S. 1022 (1967). See also Goodman, Choose Your War; Or, the Case oJ the Selective C.O.,
N.Y. Times, March 23, 1969, § 6 (Magazines), p. 34. Another issue has been the punishment of
service personnel for politically protesting the war, United States v. Howe, 17 U.S.C.A. 165, 37
C.M.R. 429 (1967); see Kester, Soldiers Who Insult the President-An Uneasy Look at Article 88
of the Uniform Code of Military Justice, 81 HARV. L. REv. 1697 (1968) and Note, 17 AM. U.L.
REv. 538 (1968). An attempt by a state legislature to bar a duly elected member because of
statements critical of the war was blocked in Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga. 1966),
rev'd, 385 U.S. 116 (1966). The Selective Service System, when challenged, has not been
sustained in using reclassification as punishment for protest against the draft, Wolff v. Selective
Service Local Board No. 16, 372 F. 2d 817 (2d Cir. 1967) and Oestereich v. Selective Service
Local Board No. II, 390 F. 2d 100 (10th Cir. 1968), rev'd, 37 L.W. 4053 (U.S. Dec. 16.
1968). In United States v. Shacter, 293 F. Supp. 1057 (D. Md. 1968), a professed atheist was
nonetheless held to be entitled to conscientious objector status because his opposition to killing and
war, while based on unorthodoxy, was rooted in religious belief. On April I, 1969, after this
article had been completed and sent to the printer, U.S. District Judge Charles W. Wyzanski, Jr.
ruled that the Selective Service Act of 1967 unconstitutionally discriminated against atheists,
agnostics, and others who are motivated to object conscientiously to the draft on the basis of profound moral beliefs. The ruling was in response to a motion to arrest judgment after the jury had
found the defendant guilty of refusing to submit to induction. The opinion accompanying the ruling
rested on first amendment grounds and did not purport to address the issues of the legality of the
war or of a peacetime draft, aside from the discriminatory basis of the conscientious objector provisions. United States v. Sisson, Cr. No. 68-237-W (D. Mass., Apr. I, 1969) and the Washington
Post, Apr. 2, 1969 at A l, col. 3.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
political protest against United States participation in the war, or
protest against the draft system.6
It would facilitate the task of analysis if the two major
issues-legality of the war and legality of the draft-could be treated
separately and independently. But it is rather like a dog chasing its
own tail and never being quite able to catch up with the elusive object
of his chase. Simply stated, the point is that if there is a legitimate
question, under international and constitutional law, about the nature
of American involvement in Vietnam-if there is no "war," or if what
"war" there is, is illegal-then there are legitimate questions about the
constitutional power of Congress to conscript men in time of peace.
I
The Supreme Court approached but did not resolve the issue of a
peacetime draft in the O'Brien draft card burning case,7 a controversy
which would not have reached the Court had not conflicting decisions
in the courts of appeals forced the issue to be treated.8
In O'Brien, the Court saved the draft card burning amendment of
1965 ' on the theory that it was a legitimate incident of the "constitutional power of Congress to raise and support armies and to make all
laws necessary and proper to that end . . . . "1 The incidental restriction on first amendment rights-O'Brien claimed the act of burning his
draft card was protected as symbolic speech-was held to be "no
greater than [was] essential to the furtherance of [the
governmental] interest."" Asserting a thing to be so in ordinary
discourse does not make it so; add a citation or two, however, in legal
discourse and the assertion presumably is unassailable.
The Court cited Lichter v. United States 12 and the Selective Draft
Law Cases 3 in support of its holding that the "power of Congress to
raise and support armies and to make all laws necessary and proper to
that end is broad and sweeping."'" It cited these cases in support of the
further proposition that the "power of Congress to classify and conscript
6. Exceptions appear to be those cases where political protest does not appear to be the
motivation. These involve Jehovah's Witnesses who refuse to do alternative service on the ground
that peacetime conscription is unconstitutional. See cases cited in note 5.
7. United States v. O'Brien, 391 U.S. 367 (1968).
8. Cases cited note 5 supra.
9. 79 Stat. 586; 50 U.S.C. § 462(b) (3) (1964).
10. 391 U.S. at 377 (1968).
II. Id. On the first amendment aspects see Emerson, Freedom oJ Expression ill Wartime, 116
U. PA. L. REv. 975, 998-1001 (1968) and Note, 18 AM. U.L. REv. 232 (1968).
12. 334 U.S. 742 (1948).
13. 245 U.S. 366 (1918). It also referred to Exparte Quirin, 317 U.S. 1 (1942).
14. 391 U.S. at 377.
19691
THE COURTS AND VIETNAM
manpower for military service is 'beyond question.' "' In a dissenting
opinion, Justice Douglas pointed out that neither Lichter nor the
Selective Draft Law Cases were very much in point. Lichter concerned
the constitutionality of the Renegotiation Act, passed during World War
I I to deter profiteering, hardly a matter analogous to the conscription of
men. The Selective Draft Law Cases, involved a conscription measure
enacted after Congress had declared war in April of 1917. Thus the
question of the constitutionality of conscription in the absence of a
declaration of war remains undecided, as Justice Douglas vigorously
maintained.
In order for the Court to validate a governmental regulation,
especially one impinging on first amendment freedoms, as necessary
to implement an exercise of congressional power, that exercise of
power must itself be legal. Apart from the question of a peacetime
draft there remains still another question on which the Selective Draft
Law Cases shed little light. That is the contention that conscription
which results in sending men outside of the country is beyond the
power of Congress. If American armed forces had been committed
to Vietnam pursuant to a declaration of war the problem might not
be so weighty. But in the present situation, where war has not been
declared, except by way of presidential speech-making,1 7 it is an
entirely legitimate question. In a legal system in which courts rely on
fine distinctions as the basis for decision, it is strange that this
fundamental point has been ignored.
In the Selective Draft Law Cases the argument was made, especially in an amicus brief, 8 that Article I, Section 8 involves two separate
aspects of congressional power over the employment of armed forcethe power to call forth the militia and the power to raise and support
armies. The amicus brief stated that the power to call forth the militia is
limited to three purposes: (1) to execute the laws, (2) to suppress insurrections and (3) to repel invasions.
15. Id. The "beyond question" is from Lichter, 334 U.S. at 756.
16. 391 U.S. at 389-391 and his dissenting opinions in Holmes v. United States, 391 U.S. 936
(1968) and United States v. Hart, 391 U.S. 956 (1968).
17. President Johnson in an opening statement at a nationally televised news conference on
July 28, 1965. For text see the New York Times, July 29, 1965 at 12, col. I (Late City Edition).
18. Brief by Hannis Taylor and Joseph E. Black as amici curiae, Selective Draft Law Cases,
245 U.S. 366 (1918).
19. Of the power Justice Story in Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827) said that it
"is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the
exercise of military power . . . . It is, in its terms, a limited power, confined to cases of actual
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. IS
Furthermore, it was asserted, the militia was to be used almost
exclusively for domestic purposes. The power to raise and support
armies, however, rests on the premise that the persons in such armies
would be volunteers, not conscripts, and would constitute a regular or
standing army. The restrictions placed on congressional use of the
militia was not applicable to the regular army, raised and supported
by Congress.
The brief further pointed out that during the War of 1812, the only
instance prior to the Civil War when conscription was proposed, the
idea was stoutly opposed. Daniel Webster" made a slashing attack on a
conscription bill in the House of Representatives on December 9, 1814.11
He called it:
an attempt to exercise the power of forcing the free men of his country
into the ranks of an army, for the general purposes of war, under color
of a military service . . . . What is this, sir, but raising a standing army
out of the militia by draft, and to be recruited by draft, in a like
manner, as often as occasion may require?22
Webster accused the Secretary of War of attempting to assert the
authority to impose on the conscripts whatever duties, at home or
abroad, the government might desire. This assumption of power,
Webster charged, rested neither on an invasion of the country, nor
upon the declaration of a state of war: "Is this . . . consistent with
the character of a free government? Is this civil liberty? No, sir,
indeed it is not. The Constitution is libeled, fouly libeled."
About a century later the question arose as to whether members of
the militia, as opposed to the regular or standing army, could be
ordered to fight outside the United States. The Secretary of War, in a
letter to Attorney General Wickersham, asked whether under existing
invasion, or of imminent danger of invasion." Id. at 29. Later on he acknowledged that the
power might be abused and that the remedy "is to be found in the constitution itself. In a free
government, the danger must be remote since in addition to the high qualities which the
executive must be presumed to possess, of public spirit and honest devotion to the public
interests, the frequency of election and the watchfulness of the representatives of the nation,
carry with them all the checks which can be useful to guard against usurpations or wanton
tyranny." Id. at 32.
20. No one could claim that Webster was a disinterested bystander in view of the attitude of
the New England states toward the War of 1812.
21. The speech is reproduced as an appendix to a "Brief Submitted by the Lawyers
Committee to keep the United States out of War," entered in the Congressional Record by
Senator Burton K. Wheeler on August 23, 1940.86 CONG. REC. 5206, 5210 (Appendix) (1940).
22. Id. at 5210
23. Id. at 5211.
19691
THE COURTS AND VIETNAM
law the President could call the organized militia of the states and
"send it into a foreign country with the Regular Army as part of an
army of occupation, especially should the United States intervene in
the affairs of such country under conditions short of actual
warfare? "24 The Attorney General indicated that from very early
times, both in England and the United States, the militia had always
been regarded and treated differently from the regular standing army,
so that the Constitution, in giving Congress the power to raise armies,
on the one hand, and to call forth the militia, on the other,
contemplates two different bodies. Wickersham further acknowledged
the limited purposes of the militia, as indicated above.
He conceded that under certain circumstances the militia might be
sent outside the boundaries of the United States when, for example, in
order to repel an invasion it might be necessary to cross the border
to pursue and capture the invading force. Likewise, the militia could
be used in a situation in which hostile armed forces were assembled
on our borders. "But," he continued, "this is quite different from and
affords no warrant for sending the militia into a foreign country in
time of peace and when no invasion is threatened." 25
Wickersham also rejected the contention that using the militia to
execute the law permitted their being sent outside the country. While
conceding that treaties are the supreme law of the land, he disagreed
that the United States could enforce them outside the country. His
words are particularly relevant to the Vietnam situation:
The observance and performance, outside of our own jurisdiction, of
treaty stipulations and obligations are left much to the honor, good
faith, and comity of the other contracting party, reenforced, at times , by
a regard for the consequences of a breach. We can not send either the
Regular Army or the militia into a foreign country to execute such
treaties or our laws. Such an invasion of a foreign country would be an
act of war.2 6
Wickersham therefore concluded that an Act of 1903 as amended in
1908,27 which purported to give the President the power to send the
militia "either within or without the territory of the United States,"
would have to be construed to be limited to the three purposes for
which the militia can be called, if it were to be constitutional
24. 19 Op. Ar'y GEN. 322 (1912).
25. Id. at 324.
26. Id. at 325.
27. 35 Stat. 400.
28. 19 Op. ATT'Y GEN. at 329.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
The significant point of Wickersham's opinion is that it clearly
states the distinction between the militia, and the uses to which it
could be put, and the Regular Army, and the uses to which it could
be put. Noteworthy also is the fact that up until this point, with the
exception of the conscription act passed during the civil war,"0 never
had a peacetime draft existed. The Court in the Selective Draft Law
Cases had to deal with this distinction because the parties contended
that conscripts could not constitutionally be sent overseas. The Court
responded to this contention by saying that the power of Congress to
"raise and support armies" was a plenary one and that therefore any
means necessary, such as conscription, was permissible.30 Thus
conscripts were viewed as part of the Regular Army and therefore not
subject to the limitations imposed on the employment of the militia.
The strength of the Court's argument cannot well be assailed. The
court was dealing, however, with a war-time conscription act-not with
a situation where draftees were being sent overseas in the absence of a
declaration of war. This difference is important because it
demonstrates that the decision in the Selective Draft Law Cases in no
wise sanctions the practice of sending conscripts abroad to fight in the
absence of a declaration of war. Nor has the practice been
sanctioned elsewhere; if it had been, surely the Court in O'Brien31
would have cited such authority. The point is that although after full
and mature argument and discussion the Court today might give
constitutional sanction to peacetime conscription, as yet it simply has
not considered the question at all.
The lower federal courts have also grappled with the peacetime
draft issue, but their mechanical reliance on inapposite precedent has
precluded a thorough re-examination of the problem in its
contemporary context. Cases dealing with the draft laws of 1917,
1940 or 1948 provide the basis which the courts currently find
adequate to sustain recent challenges to a peacetime draft. In the
process, the courts have exhumed some case law, lamentably
irrelevant.
In United States v. Hogans,3 2 where the legality of the peacetime
draft was challenged, the court relied on United States v. Henderson.3
29. As Justice Douglas pointed out in United States v. Holmes, 391 U.S. 936, 941 (1968), the
"Enrollment" Act of 1863 was a draft in name only since one could buy their way out by hiring
for $300 or less a substitute.
30.
31.
32.
33.
Selective Draft Law Cases, 245 U.S. 366, 377; 382-84 (1918).
391 U.S. 367 (1968).
253 F. Supp. 409 (E.D.N.Y. 1966), affd 369 F.2d 359 (2d Cir. 1966).
180 F.2d 711 (7th Cir. 1950).
1969]
THE COURTS AND
VIETNAM
In Henderson, the court sustained the 1948 draft law and stated that
"[i]f . . . Congress could only exercise this power to conscript and
train men when the country is at war, such action might then be
unavailing, because it would come too late . . . . 3 While on its face
this statement appears sound, it should be noted that it was made in
1950, a time when cold war fever was running high and when the
United States remained in a state of war with Germany and Japan.
The latter circumstance makes the statement, in a technical sense,
obiter dictum.
The court in Henderson went on to declare that "[p]eacetime
selective service acts have been held constitutional . . . "31 citing
several cases for this proposition. One cited case was not in point,
because it involved an alien who claimed he was not subject to the8
1940 draft law.3 Another case was also a challenge to fhe 1940 law;
this case, in turn, rested on two earlier decisions, one of which was the
39
Selective Draft Law Cases. The other decision was Tarble's Case,
which was used as authority despite the fact that the judge conceded
that the language quoted was "dicta." Thus, there would seem to
be little warrant for the assertion made in Henderson that a peacetime draft had been held valid. Even if the inference could be indulged
that the 1940 Act had been upheld as a peacetime draft, there
is still a valid question regarding the comparability of the situation in
1940, in which Europe had been overrun by Nazi Germany, to the
situation in Vietnam of the past five or six years.
The opinion in the Hogans case also cited as authority a line of
cases which reached back to In re Grimsley,4 ° which is quoted for the
34. Id. at 713.
35. Douglas, J., dissenting in Holmes v. United States, 391 U.S. 936, 943 (1968).
36. 180 F.2d at 713.
37. United States v. Lamothe, 152 F.2d 340 (2d Cir. 1940).
38. United States v. Lambert, 123 F.2d 395 (3d Cir. 1941). In addition to Lambert, the court
in Henderson also cited United States v. Rappeport, 36 F. Supp. 915 (S.D.N.Y. 1941) affd sub
nora. United States v. Herling, 120 F.2d 236 (2d Cir. 1941), which like Lambert relied on the
Selective Draft Law Cases to the extent that the latter decision did not preclude a peacetime
draft.
39. 80 U.S. (13 Wall) 397 (1872). Lambert also cited United States v. Garst, 39 F. Supp. 367
(E.D. Pa. 1941). which was the case in which Tarbles Case was cited, as well as United States v.
Cornell, 36 F. Supp. 81 (S.D. Idaho 1940) and Stone v. Christensen, 36 I-. Supp. 739 (D. Ore.
1940) both of which relied on the Selective Drafi Law Cases. Cornell cited In re Grimsley, 137
U.S. (1890), see text accompanying note 40.
40. 137 U.S. 147 (1890). The line went back through Etcheverry v. United States, 320 F.2d
873 (9th Cir. 1963), which relied on Richter v. United States, 181 F.2d 591 (9th Cir. 1950), to
In re Grimsley. Richter also relied on more modern authorities, but these turn out to be the
same cases on which United States v. Henderson relied: Lambert and United States v. Herling,
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
proposition that the "government has the right to the military service
of all of its able-bodied citizens, and may, when an emergency arises,
justly exact that service from all."'" In re Grimsley, however, had
nothing to do with conscription. It concerned, rather, the contention
of a convicted deserter who alleged that his enlistment at the age of
40, over the maximum age, was void. He claimed that since his
enlistment was void he could not be subjected to court-martial
jurisdiction. It is hard to imagine why a statement from such an
inapposite case would be used, unless Words and Phrases rather than
case research provides the core of opinions.
The issue of a peacetime draft was also raised, within the Vietnam
context, in United States v. Mitchell.42 In that case the court declared
that the attack on the draft was "wholly without merit and [has] been
repeatedly and consistently rejected by the courts of the United
States, 4' 3 citing as authority the same decisions relied on by the same
court in United States v. Hogans. The court offered some additional
authorities as well.44 All of these, however, concerned the draft laws of
1917, 1940 or 1948, and like the cases cited in Hogans, do not
contribute to a reasoned analysis of the problem in its contemporary
context. One case, for example, United States v. Bolton," which relied
on the Selective Draft Law Cases and the Henderson case, allowed for
the possibility of reconsidering the issue of a peacetime draft but said
that such should be done by the Supreme Court. One gets the
uncomfortable feeling after a while that a dead end has been reached.
II
While the judicial disposition of the peacetime draft issue has been
substantively unsatisfactory, at least the courts have recognized the
120 F.2d 236 (2d cir. 1941), in addition to United States v. Garst, 39 F. Supp. 367 (E.D. Pa.
1941) which is cited in Lambert.
41. 137 U.S. 147, 153 (1890).
42. 246 F. Supp. 874 (D. Conn. 1965), rev'd 354 F.2d 767 (2d Cir. 1966) on grounds that the
trial judge had failed to permit defendant adequate time to obtain counsel, and after retrial,
ajfid, 369 F.2d 323 (2d Cir. 1966).
43. 246 F. Supp. at 897.
44. United States ex rel. Bergdoll v. Drum, 107 F.2d 897 (2d Cir. 1939), which concerned,
however, the 1917 draft law; the case involved a habeas corpus proceeding contesting the validity
of a court-martial conviction for desertion of one who claimed he never got his induction notice.
Also cited was United States v. Warren, 177 F.2d 596 (10th Cir. 1949), a case concerning the
1948 law, and like Henderson decided while the state of war continued to exist, and relying for
its statement that peacetime conscription was valid on Lambert, Garst, and Cornell.
45. 192 F.2d 805 (2d Cir. 195 1). Bolton also suggested as authority Richter as well as
Cannon v. United States, 181 F.2d 354 (9th Cir. 1950), ceri. denied, 340 U.S. 892 (1950) and
19691
THE COURTS AND VIETNAM
existence of a legal issue. On the other hand, the issue of the legality
of the war itself has been carefully avoided.
The earliest challenge to the legality of the Vietnam conflict was
raised in United States v. Mitchell" at the district court level.
Mitchell objected to the draft on the theory that it was being
unconstitutionally applied to "him to go to Viet Nam to fight an
'undeclared war."' 47 The court's response was that he lacked standing
since, if he had consented to be inducted, he might not be sent to
Vietnam and hence his claim was premature.4 8 The precise issue had
been raised during the Korean "War" in the Bolton case, in which it
was said that "[a]ny question as to the legality of an order sending
men to Korea to fight in an 'undeclared war' should be raised by someone to whom such an order has been directed ...
"I'
°
The court of appeals in the Mitchell case, while disagreeing with
the district court that raising the issue of the war was premature,
nonetheless went on to hold that any proof Mitchell might present on
the question would go to the issue of the President's use of the
armies raised by Congress, not to the power of Congress to raise
those forces. "Thus," said the court, "we need not consider whether
the substantive issues [legality of the war] raised by appellant can ever
be appropriate for judicial determination."' 5' In support of that
conclusion, the court cited its own decision in United States v.
Hogans,52 once again starting the precedential merry-go-round. In
Hogans the court had said "[t]he courts will not examine the
purposes for which the executive employs the Armed Forces in foreign
military operations, '53 citing United States v. Bolton.5'
A few months after the decisions in Hogans and Mitchell, in Luftig
v. McNamara,55 a plaintiff who fitted the requirements laid down in
Bolton as to standing sought an injunction against the Secretary of
Defense to contest the legality of an order sending him to Vietnam.
Minchener v. United States, 184 F.2d 712 (10th Cir. 1950), both of which involved religious
objections to the draft on first amendment grounds and in no way raised the issue of the legality
of a peacetime draft.
46. 246 F. Supp. 874 (D.Conn. 1965).
47.
48.
49.
50.
Id. at 898.
Id., the court citing United States v. Bolton, 192 F.2d 805 (2d Cir. 1951).
192 F.2d at 806.
369 F.2d 323 (2d Cir. 1966).
51. Id. at 324.
52.
53.
54.
55.
369
369
192
252
F.2d 359 (2d Cir. 1966).
F.2d at 360.
F.2d 805 (2d Cir. 1951).
F. Supp. 819 (D.D.C. 1966).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
The district- court, however, viewed the issue as "obviously a political
question that is outside of the judicial function." 6 Reference was
made to the two major post Civil War cases,57 in which the Supreme
Court astutely avoided embroiling itself in the politics of
Reconstruction. In these cases, the basic post-Civil War political
relationships between defeated states and the nation were being
challenged; in LuJiig, an individual's life and liberty was at issue. It
should take little argument to show how unanalogous are suits by
states against the President and the Secretary of War to suits by an
individual against a principal governmental official.
5 in which
The court in Luftig also relied on Pauling v. McNamara,"
the Nobel prize winner had sought to enjoin further nuclear testing."
Without arguing the merits of Pauling's complaint, one can fairly say
that the interest of Luftig, who was about to be sent to Vietnam, was
much more direct and personal than that of Pauling. The district judge
in Luftig also cited his own decision in Trimble v. Johnston:'
It is no part of the judicial function to supervise or control the business
of the executive or legislative departments of the Government. Otherwise
the judiciary, instead of being one of three coordinate branches, would be
supreme over the other two. We would then have a government by the
courts, instead of by the Congress and the President. Manifestly the
Founding Fathers did not contemplate such a result.'
The court's statement in regard to the contemplation of the Founding
Fathers is a bit of gratuitous (not to say erroneous) history which
even the device of judicial notice should have helped the judge to
avoid.
While one might dispute the reasoning of the district court judge in
Luftig, there was at least an attempt to meet the issues raised. Since
the issues were important, it could reasonably have been expected that
the court of appeals would subject the controversy to extended
analysis. The best it could do, however, was to approve in a per
curian opinion the decision below and affirm the judgment of
dismissal. 2 The court also took the opportunity to warn persons
56. Id.
57.
Wall)
58.
59.
1960).
60.
61.
62.
Mississippi v. Johnson, 71 U.S. (4 Wall) 475 (1867) and Georgia v. Stanton. 73 U.S. (16
50 (1868).
331 F.2d 796 (D.C. Cir. 1964), one judge, Bazelon, dissenting.
Pauling had earlier been rebuffed in Pauling v. McElroy, 278 F. Supp. 252 (D.C. Cir.
173 F. Supp. 651 (D.D.C. 1959).
Id. at 653.
Luftig v. McNamara, 373 F.2d 664 (D.C. Cir. 1967).
1969]
THE COURTS AND VIETNAM
similarly situated "that resort to the courts is futile, in addition to
being wasteful of judicial time, for which there are urgent legitimate
demands.' "3
The parties, having been rebuffed in the lower courts, sought review
by the Supreme Court, which denied certiorari,64 Justices Stewart
and Douglas dissenting. After listing several of the questions in
the case which he considered were of "great magnitude," and
"large and deeply troubling," Justice Stewart said that "[we] cannot
make these problems go away simply by refusing to hear the case of
three obscure Army privates. '6 5 He thus added his voice to that of
Douglas, who had been the lone dissenter when the Court denied
certiorari in the Mitchell case. 6
Another opportunity remains for the courts to provide the nation
with a judicial analysis of the constitutional nature of the conflicts on
foreign soil in which the United States is likely to become engaged.
That opportunity is presented by the Spock case. Yet the course of
that litigation to date clearly indicates that the chances of such a
judicial analysis are remote. The issue of the legality of the war was
raised in the preliminary hearing in United States v. Cofin.7 When
counsel for Spock raised the issue of the admissibility of evidence
relating to the legality of the war, the judge's response was that it was
immaterial to the indictment for conspiracy to aid and abet evasion of
the draft. This posture prevailed throughout the trial, as the following
exchange between the court and counsel for Spock indicates: 8
Counsel (Mr. Boudin): I have one procedural question in order to
facilitate the trial that we ought to raise here, your Honor. I have a
number of witnesses who would be prepared to testify in support of the
defendant's contention concerning the legality of the conduct of the war
with respect to which your HonorThe Court: You mean they are going to testify as to the state of mind of
the defendant.
Counsel: No, no. That's for the defendant, I assume. They will testify as
to the facts-the facts which were the subject your Honor, you will recall,
63. Id. at 665. Random leafing through the pages of any volume of the- Federal Reporter
might leave one quite perplexed at what are, and what are not, legitimate demands made on
court, to settle controversies.
64. Sub. nora. Mora v. McNamara, 389 U.S. 934 (1967).
65. Id. at 934-35.
66. 386 U.S. 972 (1967).
67. Criminal No. 68-I-F (D. Mass. filed Jan. 5, 1968).
68. Appendix to appeals from judgment in United States v. Spock, appeal docketed, Nos.
7205, 7206, 7207 and 7208, 1st Cir., August 21, 1968, Pp. 01484-85.
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[Vol. 18
in my motion and my request for a 12(b) hearing. Now I assume that your
Honor's ruling with respect to that testimony will be the same.
The Court: Oh, exactly.
Counsel: As your Honor's earlier ruling?
The Court: Yes. The issue of the illegality of the war is not material or
relevant here if that's what you're talking about.
Counsel: Exactly.
The Court: Yes sir.
Counsel: I don't think it's necessary in light of your Honor's decision in
the case for me to make offers of proof.
The Court: Well, if I were you-I'm not telling you what to do-I'd
make an offer of proof at the proper time and let the Court rule on its
acceptance and rejection and then on the exclusion or admissibility of the
evidence-That is the proper procedure, I think, unless you think
differently.
Counsel then tried to get some indication from the court as to what
the ruling mfight be, since defendant's witnesses would have to
come from all over the United States. The court held to the position
that it would not rule in advance but that its disposition of the issue
would not change from that of the pre-trial. Counsel asked whether
the physical appearance of the witnesses could be dispensed with, and
finally pressed the court as follows. 9
Counsel: .
.
. let me raise a question .
. .
. I want my offer of proof.
The Court: I am leaving the final decision to you in the light of my
previous ruling at the pre-trial hearings on the issue of the illegality of
the war.
The court's jury instructions dealt with the issue, but only to the
extent of restatingthe stand previously taken."
The Court: Before we proceed further, members of the jury, let me remind
you what we are trying here. False trials and issues must be avoided. We
are not trying the morality, legality, or the constitutionality of the Military
Selective Service Act of 1967. We are not trying the wisdom, morality or
legality, or constitutionality of the war in Vietnam or the right of a person
to protest the war in Vietnam on those grounds. Th~se questions, the
morality, legality and constitutionality of the war in Vietnam-are
irrelevant, are not issues in this case.
What is unfortunate is that no written opinion in a case as
momentous as this was issued by the court. Not only the issue of the
legality of the war, but all the other crucial and significant issues
69. Id. at 01488.
70. Id. at 03196-97.
19691
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raised during the course of the trial were ignored in terms of a
reasoned judicial response.
Such a response, however, was forthcoming in United States v.
Valentine,7 involving the refusal of several Puerto Ricans to submit to
induction. As in the Spock trial, there was an attempt to secure
overseas depositions for the purpose of developing evidence on the
illegality of the war. These were denied on the grounds that the
"nature and legality of American military activities in Vietnam are
clearly irrelevant and immaterial to the narrow issue [refusal to be
inducted] presented by the indictments." Support for this proposition
included a lengthy excerpt from the hoariest of American judicial
opinions, Marbury v. Madison,73 to the effect that the issue was, of
course, a political question.
In the Spock case, now pending before the Court of Appeals for the
First Circuit, the legality of the war appeared to be of little interest to
the court during argument. All indications are that the basis for decision
in that case will be the first amendment impact on the theory of conspiracy developed by the government for the occasion. Since the same court
will review the Valentine decision, if appealed, the legality of the war
is not likely to be considered in that case either. The courts will have
come to another dead end.
III
Aside from the individual interests involved in the Vietnam cases
discussed above, there are fundamental political and constitutional
policy questions that have been raised but not answered. How does
the nation get into a "war"? What is the relevance of the concept of
"war"? Has Congress' power to declare war become a constitutional
anachronism? These are not frivolous questions, the disdain with
which lower courts have sometimes treated them notwithstanding.
At the outset, some "realistic" concessions should be made. The
practical, as well as the constitutional powers of the President,
subsumed under the rubric of the "war" power, are immense. History
has fashioned them so, and generally there has been ample
justification for their breadth. The nature of these immense powers,
because they are a product of history, is peculiar to that history. The
question is, then, does that history serve as a valid guide to the
problems at hand?
71. 288 F. Supp. 957 (P.R. 1968).
72. Id. at 983.
73. 5 U.S. (ICranch) 137 (1803).
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The "war" power grew largely out of the experiences of the Civil
War, World War I and World War II. The first experience was a
conflict fought on our own soil; the last two were "total"
involvements in death struggles between opposing groups of world
powers. Between total war and total peace lie the "limited" wars in
which the United States is likely to be involved. For the purposes of
these wars, the Constitution and the gloss put on it by accumulated
Supreme Court decisions are irrelevant. In other instances, the
Supreme Court has shown remarkable creativity in fashioning new
doctrines in the guise of interpreting the basic document or its amendments. Laissez-faire economics, at one time, social welfare economics at
another, civil liberties, the rights of the criminally accused, and the
remarkable elasticity of the commerce clause-used to stamp out
lotteries, the white slave trade and discrimination against black
Americans-are familiar examples. Why has the Court failed to
exercise the same ingenuity in dealing with a problem as perplexing
and dangerous for the Republic as the Vietnam war has raised?
It is no answer for the courts to say that it is none of their business
or that these questions are reserved to the discretion of the President
and Congress. Discretion should not be confused with abuse. The
"political question" sanctuary is untenable because it is a meaningless
and deceptive formulation. It is untenable because it is basically a
responsibility avoiding device. Most if not all of the "historic"
decisions of the Supreme Court have been "political" in every sense
of the word. Furthermore, the act of deciding whether a question is
political or not, is in itself politica 7 4 and the doctrine has been applied
with little consistency.7 s
What is really, at stake is not whether the President must have
broad discretion in the conduct of foreign relations-most everyone
will readily concede that he must-but whether there are any limits to
discretion. Obviously there must be. No one can assert that the President
is not bound by "this Constitution . . . and all treaties made . . .
under the Authority of the United States . . . . , It is no answer to say
that if the President abuses his power that for "protection against abuses
77
. . . people must resort to the polls, not to the courts."
74. C. Justice Brennan in Baker v. Carr, 369 U.S. 186, 211 (1962):
Deciding whether a matter has in any measure been committed by the constitution to
another branch of the government, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of the
constitution.
75. See Justice Brennen's analysis in Baker v. Carr, 369 U.S. at 208-28.
76. U.S. Const. Art. VI.
77. Munn v. Illinois, 94 U.S. 113 (1877).
1969]
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When a President is elected, in part because of his statements that
American boys should never be sent to Asia to fight an Asian war,
the election process takes on the character of a fraudulent and futile
exercise. When the two major political parties so thoroughly pre-empt
the political process and when both parties have tried to out do one
another in supporting the President's policy, the political process is of
little help to those ensnared in the judicially approved legislative and
administrative mechanisms conscripting them to fight against their
will.
While the courts can conjure up many reasons for avoiding
consideration of the legality of the war and the draft, more is expected
of an institution which many have come to rely on for reasoned
education on and illumination of difficult policy questions. It is even
more incumbent upon the courts to enter into such disputes when the
political processes have otherwise become clogged.7 8 The issues are of
concern not only to those presently subject to the draft but to those who
in the future may be ordered to serve in a remote corner of the world in a
''cause" over which there is considerable dispute and anguish.
For the courts to refuse to aid in the resolution of these crucial
issues is only to postpone them to some later time, when popular
feeling may be even more intense. A recent Gallup Poll indicated that
62% of the population responded negatively to the question: "If a situation like Vietnam were to develop in another part of the world, do you
think the U.S. should or should not send troops." Twenty-five per cent
answered "should," while 13% had no opinion. If the no opinion responses are merely evenly divided, the "should-nots" amount to nearly
70% .7 Yet, when individuals now subject to the draft raise the issues of
the legality of the war or of the draft, they are frequently confronted
with a judicial pronouncement such as:
Certainly it is not the function of the Judiciary to entertain private
litigation-even by a citizen [!]-which challenges the legality, the wisdom,
78. Although uttered in another context, Justice Stone's delineation of the problem in his nowfamous footnote in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) is
nevertheless an apposite conceptualization. "itis unnecessary to consider now whether legislation
[draft card-burning statute] which restricts those political processes [symbolic protest] which can
ordinarily [extraordinarily] be expected to bring about repeal of undesirable legislation [foreign
policy] is to be subjected to more exacting scrutiny under the general prohibition of the fourteenth
[first] amendment than are most other types of legislation." The insertions in the brackets are an
attempt to bring home the pertinence of the concept to the contemporary situation, especially
O'Brien, 391 U.S. 367 (1968).
79. Washington Post, Feb. 23, 1969, at A 12, cols. 2-3 (home ed.)
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
or the propriety of the Commander-in-Chief in sending our armed forces
abroad or to any particular regionP
There is little justification for treating suits raising legitimate public
policy issues as mere "private litigation." There is every justification
for treating them as class actions, for this is precisely what they are.
Certainly, widespread opposition to the draft indicates that in terms
of numbers there is a substantial class interested in these issues.
Equally unresponsive to the problem is the invocation of such cases
as Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp.', The
granting of an overseas air route by the Civil Aeronautics Board
involves entirely different considerations from cases in which an individual is objecting to being forcibly put in a position where he may have to
give up his life in a war he believes not only to be immoral but illegal,
constitutionally and internationally. The Anglo-American legal system's
reliance on stare decisis often produces results which common sense
would reject. A court can, for example, hold unconstitutional a statute
regulating the prices theatre ticket agencies may charge,"2 and then use
this decision as authority for holding unconstitutional a statute regulating the fees employment agencies may charge.13 While the reasoning by
analogy undoubtedly appeared to the Court to be the legal mind
working at its best, the result in the second case (even assuming the
soundness of the first) was ludicrous." It is not the system of
reasoning that is at fault; the fault lies with judges who use analogies
indiscriminately or who fail to consider the context from which they
select resounding pronouncements to support their position.
As Justice Douglas once wrote, there are plenty of precedents to go
around. 5 A sound case for justiciability and rejection of the political
question doctrine can be made out if judges are willing to take the
trouble8 8 The point is that judges are unwilling, and especially is this
true of Supreme Court judges, excepting Justices Stewart and
Douglas. The reasons are not difficult to discern. For fifteen years the
Supreme Court has been under attack for its decisions in the fields of
segregation, alleged subversion, reapportionment, school prayer policy
80. Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
81. 333 U.S. 103 (1948) as was done by the Court of Appeals in Luftig v. McNamara 373
F.2d 664, 666 (D.C. Cir. 1967).
82. Tyson v. Banton, 273 U.S. 418 (1927).
83. Ribnick v. McBride, 277 U.S. 350 (1928).
84. Ribnick was expressly overruled in Olsen v. Nebraska, 313 U.S. 236 (1941).
85. Douglas, Stare Decisis, 49 COLUM. L. REv. 735, 736 (1949).
86. Cf the analysis in Schwartz & McCormick, The Justiciabilityof Legal Objections to the
American Military Effort in Vietnam, 48 TEXAS L. REv. 1033, 1041-53 (1968),
1969]
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and criminal procedure. The Court can hardly be blamed, committed as
it is to the preservation of its *institutional interests, for its reluctance to
sally forth in a field where it may feel that little can actually be
achieved. Judicial self-restraint, at least as far as Vietnam is concerned,
seems to be in vogue, as was so clearly demonstrated in the O'Brien
caseY
The Chief Justice's opinion in O'Brien is not likely to be regarded as
one of his great efforts. At one point, he analogizes draft cards to
drivers licenses or books or records relating to tax matters. Such
an analogy might have made sense if non-possession of the card had
been the issue. This, as a matter of fact, was the basis on which
the Court of Appeals for the First Circuit sustained O'Brien's
conviction, while holding the draft card burning statute
unconstitutional 8 But the Supreme Court was not content to sustain
on the lesser offense of failing to have the card in one's possession
(lesser also in its political protest implications), but went out of its
way to sustain the amendment itself.
The biggest disappointment in the O'Brien case is that the court shut
its eyes to the underlying motives and purposes behind the draft card
burning amendment. The court justified this attitude by citing
McCray v. United States9 for the proposition that congressional
motive is never the test of the constitutionality of a statute.The court
failed to point out, however, that the principle of the McCray case was
ignored when it came to taxing child labor," a situation in which
motive was clearly uppermost in the judges' minds. The Court was not
interested in the history of the twists and turns of its past conduct,
but was only concerned in reaching an immediate result: sustaining
Congress on the policy issue. Judicial self-restraint has been recognized
as a two-edged sword; it can be used, as its apologists insist its
purpose to be, to keep the judiciary out of public policy questions
Congress has decided. In reality, however, the Court simply supports
the policy Congress has adopted. Some of those policies may be
"good," and some may be "bad." Some might say the policy supported
in O'Brien was "bad." But the same technique of judicial self-restraint
was used in Heart of Atlanta v. United States9 ' to support what many
would call a "good" policy; that is, the elimination of racial discrimina87.
88.
89.
90.
91.
391 U.S. 367 (1968).
376. F.2d 538 (1st Cir. 1967).
195 U.S. 27 (1904).
Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
379 U.S. 241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
tion in interstate travel. In Heart of Atlanta, however, congressional
motive or purpose was a major factor used by the Court to achieve that
result.
While former Justice Clark, speaking for the Court, did not use the
word "motive," his recital of the legislative history and purposes of
the Civil Rights Act of 1964,92 amounted to the same thing. 3 At one
point he wrote that the Senate Commerce Committee "made it quite
clear that the fundamental object of Title If [the public
accommodation title] was to vindicate 'the deprivation of personal
dignity that surely accompanies denials of equal access to public
establishments."'9 4 Like the "political question" doctrine, the
disinclination to examine motive or purpose, a device of judicial selfrestraint, is merely a tactic to achieve a policy objective, and is a
tactic which is exercised at the exclusive option of the Court.
There are other disappointments in the O'Brien opinion. With Justice
Douglas the sole dissenter, and Justice Harlan concurring-on
grounds that no first amendment question could be raised by O'Brien
since he could have conveyed his message in a way other than by
burning his draft card 5-six other members of the Court, by their
silence, acquiesced in the opinion of the Chief Justice." Among those
six were Justices Black and Fortas.
The "balancing test" was used by the Chief Justice in support of the
7
rationale of O'Brien.1
Yet it was Justice Black, in his dissenting opinion
in Barenblatt v. United States,9 who showed the inadequacies of the
balancing test. Overlooked in its use he claimed, was the "real interest
. . . the interest of the people as a whole." 99 While O'Brien is not analogous to the facts in the Barenblatt case, Black's principle could reasonably be applied to the O'Brien situation: the interest of the whole
people is precisely in being exposed to the moral force of O'Brien's
expression of protest about an issue of national policy. Expression is not
speech alone, and a court which has so broadened the scope of the first
amendment should have little difficulty in accomodating unorthodox as
well as conventional modes of communication. At one time motion
pictures were regarded as nothing more than business for profit, with no
92.
93.
94.
95.
96.
78 Stat. 241.
379 U.S. at 245-46, 252-53.
Id. at 250.
391 U.S. at 388-89.
Justice Marshall did not participate in the consideration of decision of the case.
97. 391 U.S. at 376-82.
98. 360 U.S. 109, 134 (1959), in which the Chief Justice and Justice Douglas concurred and
with which Justice Brennan stated his accord in a separate dissenting opinion.
99. Id. at 144.
1969]
THE COURTS AND VIETNAM
element of communication deemed worthy of first amendment protection.""' But in 1952, the Court solemnly pronounced that "[ilt cannot be
doubted that motion pictures are a significant medium for the communication of ideas."'' The issue of symbolic speech which O'Brien raised is
a matter of great complexity.' Yet the Court seemed content to slide by
it on the premise that the destruction of the card was still an
important enough governmental interest to be protected.
On the issue of symbolic speech, one might have expected Justice
Fortas to be less than content with the disposition of the problem. For
it was he, in Brown v. Louisiana,'02 a segregated library sit-in case,
who was unwilling to rest the reversal of convictions on grounds that
little inconvenience had been caused the state. Rather, said Justice
Fortas, "there is another and sharper answer which is called for. We are
here dealing with an aspect of a basic constitutional right [speech
assembly and petition under the first and fourteenth amendments]
S.
.. As this Court has repeatedly stated, these rights are not confined
to verbal expression. '""'" On the other hand, one could hardly expect that
a Supreme Court Justice, who was also serving as a confidant of the
President,-and reportedly a "hawkish" one-would favor judicial
interference with the President's war policy.
Iv
The pattern of the courts' response to the conflict in Vietnam is in
historical retrospect consistent. The Supreme Court has usually been
less zealous of liberty when its judicial sword of protection has been
needed most. When the Court has summoned up its courage, as in Ex
parte Milligan"'4 or in Duncan v. Kahanamoku,""s it has been an expost
facto declaration of faith. At best it is an exercise in locking the door
.. after the Liberty Bell is stolen."'0 6
The reluctance of the courts to become involved in the Vietnam
issues can be thus understood historically and politically, but must be
rejected morally. Individual life, liberty and belief were and are at
stake. But even when one descends from the high level of abstraction,
a case can be made out that judicial involvement is feasible and that
disaster for the courts or the country might not necessarily follow.
Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U.S. 230 (1915).
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952).
383 U.S. 131 (1966).
Id. at 141.
71 U.S. (4 Wall.) 2 (1866).
327 U.S. 304 (1946).
106. Z. CHAFFEE, FREE SPEECH IN THE UNITID STATES 80 (1942).
100.
101.
102.
103.
104.
105.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
Suppose, for example, in Mitchell,107 at the district court level, the judge
had considered the challenge to a peacetime draft serious enough to call
for a three-judge court."' Sup'pose further that such a three-judge
court held conscription invalid in the absence of a state of war
previously declared. Such a decision would go directly to the Supreme
Court for review, a review it could hardly side-step.
Had this occurred, full consideration and argument could have been
given at least to that one issue. Suppose further, that the Supreme
Court agreed with the Court below. What would have been the consequences of such a decision? First, the Court might have been ignored.
Second, the President and Congiress, separately or in concert, might
have moved to cripple or destroy the Court in one of many ways. Third,
Congress might have responded by declaring war, thereby meeting its
constitutional responsibility. Even had the Court not held peactime
conscription invalid, it could have at least given the nation some
reasoned analysis on the nature of modern great power conflicts as
they are manifested in localized little wars and the relation of all of
this to the Constitution and to the political system.
By forcing Congress' hand, that is, by making Congress engage in
the political debate necessary to consumate a declaration of war, the
Supreme Court could have facilitated a national debate on the nature
of this country's relationship to that conflict, and on the roles
of Congress and President in determining public policy regarding that
conflict. None of this was done; instead, what debate has taken place
has been largely in the universities, the press and the Senate Foreign
Relations Committee. Except for the latter, public officials,
accountable to the electorate, have not been forced to answer for their
actions on a major question of policy.
The courts have therefore contributed to the general aura of
irresponsibility which normally characterizes the American political
system, but which has been particularly exacerbated during the
Vietnam era. By not forcing the issue, the courts-especially the
Supreme Court-have played a political role, although one of
irresponsibility. Its silence has permitted Congress to play a role of
utter duplicity; on the one hand it simply supports the war by
enacting appropriations for it; on the other hand, it avoids public
accountability by silently acquiescing in a presidentially made war. A
vicious cycle of irresponsibility is thus created, further impairing the
power of the people to control their own destiny.
107. 246 F. Supp. 874 (D. Conn. 1965).
108. Under 28 U.S.C. § 2282 (1964).
1969]
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397
The implications of such a drift toward irresponsibility ought not to
go unnoticed. For it is not only the particular case of Vietnam about
which there should be concern, but the similar situations into which
the nation may blindly be led again. If modern conditions of
international politics and the technological state of weaponry have
rendered obsolete constitutional provisions regarding war and the role
of Congress in formulating policy regarding foreign involvements, a
mature polity-which hopefully we are-does not need to be treated
like innocent children and shielded from the vices of reality. To the
extent that the courts have shied away from clarifying these problems,
09
they have been irresponsible. Lord Action's well known caution" can
perhaps be appropriately reworded as an epitaph for the judiciary:
Irresponsibility corrupts and absolute irresponsibility corrupts
absolutely.
109. "Power corupts and absolute power corupts absolutely."