Petition for Writ of Certiorari — Butler v. United States

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‘In the Supreme Court of the United States |

OCTOBER TERM, 1967.

No. 1214 |

DONALD SMELTZ BUTLER,

| Petitioner, — "

Vs.

UNITED STATES OF AMERICA,

Respondent. °

PETITION FOR A WRIT OF CERTIORARI .

To the United States Court of ——-

For the Sixth oom.

Raupu Rupp, >

Rupp, Oser & MILLER, —

Public Square Building,

33 Public Square, .

Cleveland, Ohio. 44113,

_ Attorneys for Petitioner.

-March 9, (1968.

“( Attorneys for Respondent on Inside of Cover.)

THE GATES LEGAL PUBLISHING Cco., CLEVELAND, OHIO-——TEL. (216) 621-5647

—~

TABLE OF CONTENTS.

Othe Die oe

Grounds of Jurisiliction 2-28 22.22

Questions Presented ilies cereus ocean pial 2

_ Constitutional Provisions Sipe comune Sa Gauee .3

; Deetneny FO ooo ik nent oe

‘Statement of the Case PAN ET a 6

Argument siti ei ia aca at Ma 10

A. Draft Curtails Siiiieiiel Personal Liberties 10

B. Rational Basis Is Test For Commercial Regula-

WOOD eciscninin:chcssehccinjecsiathcheaieai ies mai ale enemas 11

C. Necessity Is Test For Law That Stifles Funda- 7

* mental Personal Fa ee 12

D Considerations Governing Review on Cer- .

G008 Wicca 17°

E. The Nature of the teins a Bae ATs © comawattiti 18

F. The Right to Present Evidence.of Constitutional :

) EEN ER MMR Me: AEA Mech Ts Cee SIS 22

1. The Rent Control Cases _______.-______ 23

2. The Shoddy and Bus Franchise Cases _._ 24

3.. Whitney v. California __________ feoiaccniia 25

4. The Borden and Carolene Cases _.______' 25

5. Smith v. California... 27

6. Diet occ eee. 28

G. Subsidiary Issues _________ duioieile RCERISRAES): 31

Conclusion pinata céuidlinigdsie get ee ee 32

Appendix:

Oral Opinion of Lt ET SOR ITT ES la

SORE aS PR RL LE TE NE PT ETT LCR WEEP PMA ET IAT RTE OS OORT AE Tr PRE OMY

Aptheker v. Secretary of State; 378 U. S. 500, 1964 __ 13 ;

Transcript of Sentencing Saceeeeinaneeceninnee SER

Judgment and Commitment .._...._..___--_-_- 15a

Opinion of the United States Court of Agpeate for

She Sixth Ciroult: 16a

Jodgment of the Court of Appeals me the. Sixth

Circuit <a teclndatessiieiadahighiiebiinianabdicasieciinieieiibits 28a

TABLE OF AUTHORITIES.

Cases.

Arver. ». U. S., the Selective —_ Law Cases, 245

a” Renee esa aap aia tate 17

_ Bertelson v. Cooney, 213 F. 2d 275, 1954 ! ea 17

Block v. _ Hirsh, 256 U. S. 135, 1921 __-___________- 23

Borden’s Farm Products Company, Inc. v. p- Baldwin, |

CO 25.

Chastleton Corporation v. Sinclair, 264 U. S. 543,

RR RASSRNEAE SE SEE ERS FEO eee eee. 23, 30

‘Chicago Mercantile Exchange v. yietcon, 177 F. Supp.

RR he ER LS I ED 12

Hamilton’ v. Kentucky Distilleries & Warehouse Com-

pany, 251 U.S. 146, 1919 _____-_________-_____ : a

Hammond, City of, v. Schappi Bus Line, 275 & ae

"<A Ea Seee tap aiilipcla tainceabuiaaaasitnepraaicbiniintiaii 24 |

Katzenbach v. McClung, 379. U. S. 294, 1964... 12

J Kress, Dunlap & Lane, Inc. v. Downing, 286: F. 2d

212, 1960 a ae 30

McCulloch v. Maryland, 4 Wheat. 316, 1819 ________ a.

Meyer v. Nebraska, 262 U. S. 390, 1923 __-_______ 10, 11

NAACP v. Alabama, 377 U. S. 288 Soir eal 14;

18

Nebbia v. New York, 291 U. S. 502, 1934 ---______- a

Shelton v. Tucker, 364 U. S. 479, 1960 _______- 13, 17,18

Smith v. California, 361 U, S. 147, 1959 _-_---_____- 27

Thomas v: Collins, 323 U. S. 516, 1945 ________-.._ 12

U.S. v. Carolene Products Co., 304 U. s. 144, (1988 __ 12

U.S. v. Robel, __ U. S. __, 88S. Ct. 419, 18 L; ed. 2d

I EEE ERTS CONE Mace i Pea 14, 16

‘Weaver v. ‘Palmer Bros., 270 U.S. 402, 1926 ee:

Whitney v. California, 274 U. S. 357, 1927 _________ 25

- Constitution and Statutes.

Constitution of the United States:

NG OE LOT ee 3

Fifth Amendment _______--_-_._-_ > 3, 6

‘Universal Military Training and Service Act, June 24,

1948, c. 625, Title 1, 62 Stat. 604, Public Law 759,

80th Congress (as amended June 19, 1951, c. 144,

_ Title 1, Sec. 1(a), 65 Stat. 75, Public Law 51,

82nd Congress) ~-7------------5---+---=---

28 USC Sec. 1254(1) SF OTST NO ERM

Other.

; =

4-5

1

Professor Dean Alfange, Jr., “The Relevance of Legis- -

' lative Facts in Constitutional Law,” 114 Univer-

sity of Pennsylvania Law Review 637, March,

1966 ibis laiindidiei lilac lea aeltndihiea thine

1967 ulidictecieadaidisisasteiAadabaieidhiianidiibiibtantentcpiiicenmtabicietenaaia

Congréssman Curtis, February, 1967, issue of Playboy

magazine, page 168 ____--_-____________

Dies aera Sete a PLATELET OT II LLIN LE SEITE

Federal Rules of Criminal Procedure, Rules 17 (c)

and 16(b) SCTE seat O RENEE DC HE RISD EE . 31:

‘ How to End the Draft, The Case For An All-Volunteer

Army, by Congressmen Stafford, Horton, Schwei-

ker, Shriver, and Whalen, The. National: Press,

Inc., 1967, pp. 113-123 _.-.---_.---------.-.- 19 ©

‘Th the Supreme ( Court of the United vain

OCTOBER TERM, 1967. |

BI scteisuchinorabaes

" DONALD SMELTZ BUTLER,”

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

_ PETITION FOR A WRIT OF CERTIORARI e

_To the United States Court of Appeals

For the Sixth. Circuit.

OPINIONS BELOW.:

District Court: Opinion not reported. Transcript of

oral ‘opinion appears in the Appendix hereto at pages la

to18a.

Court of Appeals: Opinion sesiccied OF can Fed. |

2d __. Text is in the. Appendix hereto at pages 16a to 28a. -

. GROUNDS OF JURISDICTION.

The decision of the United States Court of Appeals for

the Sixth Circuit was rendered, and filed on — 8,

1968.

The jurisdiction of this Court to review by éerticresi

is conferred by 28 USC Sec. 1254(1).

Pe i a eae hat Tee t ata ia = meee a

2

QUESTIONS PRESENTED.

I. In a criminal prosecution for refusal:to report for

induction by order of the Selective Service System, does

the District Court trying the case have jurisdiction to en-

tertain' the defense that at the date of the alleged crime,

February 4, 1964, the draft law violated the substantive |

‘due process requirement of the Fifth Amendment in thai

it broadly stifled fundamental personal liberties by con-

scription of manpower without necessity to do 'so.because

the valid Congressional purpose of providing for the com-

mon defense by raising and supporting an army could

have been achieved as well or better by voluntary means

if Congress hed taken reasonable steps to provide better

incentives for enlistment, chiefly through higher pay and

greater opportunities for training and education?

Petitioner answers yes. The Court of Appeals: an-

swered no.

II. In such a case is it a denial of fair trial and revers-

ible error for the trial judge to exclude all of the defend-

ant’s evidence tending to show conscription to be unneces-

sary, bar the defendant from access by subpoena to further

such evidence possessed by the government, find the de-

fendant guilty, and sentence him to prison?

Petitioner answers yes. The comet of Appeals an-

swered no.

al

A I Ey OE

3 .

CONSTITUTIONAL PROVISIONS.

1. United States Constitution, Article I, Sec. 8:

“The Congress shall have power to lay and collect

taxes * * * to * * * provide for the common de-

fense * * * ‘of the United States;

* * *

' “To declare war * * *;.

_._« “To raise and support armies * * *;

“To provide and maintain a navy;

“To make rules for the government and regulation

of the land and naval forces;

“To provide for calling forth the militia to execute

the laws of the Union, ompyees invunvoctions, and

repel invasions;

“To provide for organizing, arming, and disciplin-

ing the militia, and for governing such part of them

as may be employed in the service of the United

;~States, reserving to the States respectively the ap-

pointment of the officers, and the authority of train-

ing the militia according to the discipline prescribed

by Congress;

Ce ek

“To make all laws which shall be necessary and

proper for carrying into execution the foregoing pow-

ers, and all other powers vested by this Constitution -

in the Government of the United States, or in any

department or offices thereof.”

2. United States Constitution, Fifth Amendment:

-

“No person shall * * * be deprived of life, liberty, |

or property, without due process of law; * * *.”

J

.

‘ .

~ -

4

STATUTORY PROVISIONS.

I. Universal Military Training and Service Act, June

24, 1948, c. 625, Title 1, 62 Stat. 604, Public Law 759, 80th

Congress, |

Section 1(a), 50 USC App. Sec. 451(a) (as amended

June 19, 1951, c. 144, Title 1, Sec. 1(a), 65 Stat. 75, Public

Law 51, 82nd Congress) : |

“This act may be cited as the ‘Universal Military

Training and Service Act.’ ”

Section 1(b), 50 USC App. Sec. 451(b):

“The Congress hereby declares that an adequate

armed strength must be achieved and maintained to

insure the security of this Nation.”

Section 1(c), 50 USC App. Sec. 451(c):

“The Congress further declares that in a free

society the obligations and privileges of serving in

the armed forces and the reserve co ents thereof

should be shared generally, in accgrdance with a sys;

selene sa. A

tem of selection which is fair and just, and-which is ©

consistent with the maintenance of an effective na-

~ tional economy.”

Section 4(a), 50.USC App. Sec. 454(a):

“Except as otherwise provided in this title, every

male citizen of the United States * * * who attains

the age of 18 years and six months after having been

required to register pursuant to Section 3 of this title

* * * shall be liable for training and service in the

Armed Forces of the United States * * *. The Presi-

dent is authorized, from time to time, whether or not

a state of war exists, to select and induct into the

Armed Forces of the United States for training and

service in the manner provided in this title * * * such

Na,

5)

number of persons as may be required to. provide and

maintain the strength of the none Forces.

ce ‘*””

Seiten 4(b), 50 USC App. sec. 454(b):

- “Each person inducted into the Armed Forces

under the provisions of subsection (a) of this

section shall serve on active training and service for _

a period of twenty-four consecutive months, unless

sooner released, transferred, or discharged piace

Section 5(a), 50 USC App. Sec. 455(a):

“The selection of persons for training and service

under Section 4 shall be made in an impartial man-

- ner, under such rules and regulations as the President

may prescribe, from the persons who are liable for

such training and service and who at the time of.

selection are régistered and classified, but not deferred ~~

or exempted * * *.”

Section 12(a), 50 USC pon Sec. ew: ;

“* + ® any person * * * who * * * refuses * * *

service in the armed forces * * * or who in any.man-

ner shall knowingly fail or neglect or refuse to per-

form any duty required of him under or in the execu-

tion of this title, or rules, regulations or directions

made pursuant to this title * *'* shall, upon con-

viction in any district court of the United States of

competent jurisdiction, be punished by imprisonment .

for not more than five years or a fine of not more than

$10,000 or by both such fine and imprisonment * * *.”

OT POAT, ATL, eee: POTTS eS

=

STATEMENT OF THE CASE.

~ Pursuant to.the Universal Military Training and

Service Act the defendant was ordered to report for induc-

tion into the armed forces on ena ened 4, 1964. He failed

- todoso. ’

yo Indicted for this offense, he defends solely ‘on the

ground that at the time he was ordered to report for in-

duction the draft law was unconstitutional in that it would

have deprived him of his liberty and property and perhaps

of his life without due process of law in violation of the

Fifth Amendment to the Constitution of the United States. ©

This is so, he says, because the Congressional purpose to

provide for the common defense could have been accom-

plished by less drastic means than conscription, that is, by

voluntary enlistment, if the incentives had been im-

proved, chiefly by increased pay and opportunities for

training.

Suggesting the truth of this thesis are extensive data

and arguments presented in speeches of members of

Congress and reproduced. in the Congressional “Record

during the years 1963, 1964 and 1965. Apparently in

response to the speeches and perhaps in anticipation of-a

group of them that were made on April 21, 1964, President

Johnson, on April 18, 1964, directed the Defense De-

partment to make a study of the draft selection system

“‘ncluding the possibility of meeting our requirements on

an entirely voluntary basis,” the study to be completed .

within a year.

In February, 1966, well in advance of his trial, the

defendant moved for leave to subpoena the Secretary of

' Defense or his designated deputy able to produce the

documents to be subpoenaed and to testify authorita-

tively on them to bring for examination by the parties

_ and their attorneys that portion of the data assembled in

eta f aber api tato sesh EINES ERT POL HI REELS REE PI LEE NO AF

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. the course of the study that related to certain ideas

specified in the proposed subpoena that had-been advanced

on the floors of Congress and which in the aggregate con-

stituted the defendant’s defense.

This‘motion was denied without opinion.

' Thinking that the motion may have been denied be-

cause of the lack of specificity of the proposed subpoena

as to the precise documents to be produced, the defend-

ant made a second motion in May, 1966, for leave to sub-

poena a specific document, namely the preliminary draft

report of the Defense Department study, which the

defendant’s attorney was informed had been completed. ©

This motion was denied likewise. .

To the, trial the defendant subpoenaed the Sec-etary

of Defense or his designated deputy to produce both the

data and the specific report covered by the pre-trial

motion. In trial, the Court excluded such yr from ae

evidence. —

Another kind a evidence that sitios iiaesaadl

for the trial was testimony of an expert, an economist

with expert knowledge in this field. who would have

testified in support of the thesis that the draft could have

been supplanted by a system of voluntary recruitment.

His testimony also was excluded.

The third class of evidence that the trial court ex-

cluded consisted of copies of some of the Congressional

speeches previously alluded to, some of them directly from

the Congressional Recotd and some of them as assembled

in the report of the hearings on the draft law that were

conducted by the House Committee on Armed Services on

June 22-24 and June 28-30, 1966. Similar evidence that

was also excluded was testimony of certain Congressmen

in the same Committee hearing in which they urged that

conscription of manpower be replaced by voluntary en-

__ listments.

OTE GSO Pe OPE LOIN EE AIRE ITO ay aidtais ‘oi tenth ait ical tata tibie bint —!

ScD AM SNA A NNN ROR a P|

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Excluded also (a fourth class of evidence) was testi-

mony of Assistant Secretary of Defense Robert Morris in

the same Committee hearing containing an admission that .

the necessary manpower could be obtained by voluntary

recruitment, although at increased expense. . .

' At the conclusion of the trial the defendant was found

. guilty and sentenced to five years’ imprisonment.

On appeal to the United States Court of Appeals for .

the Sixth Circuit, the remedy sought was for the convic-:

tion to be vacated and the case remanded to the trial court

for a new trial, with directions to permit the defendant to

subpoena in advance of trial the relevant.evidence in the

hands of the Government, to receive the relevant evidence

bearing on the issue of necessity for the draft, and to

determine: whether or not conscription was reasonably |

necessary at the time of the defendant’s alleged offense,

and if not, to acquit the defendant’ on the beais of his

constitutional defense.

The Court of Appeals responded to » this request for

relief in the following words: | ba

RS “We read, then, appellant’s position to be that an.

‘issue of fact should be framed between his proffered ;

evidence and the judgment of the Congress as to the

necessity of the draft; this issue would then be sub-

-- mitted to a United States District Judge; the District

Judge would have the power, upon his own evalua-

tion of the evidence, to conclude that there was a

better method of providing for the needed national

defense than the one chosen by the national legisla-

ture. From this position he would move on to con-

clude that the availability of this better way rendered

unnecessary and therefore unconstitutional, the

method éhosen by Congress.

- We do not think the District J udge had any such

power, and we agree with his refusal to entertain the

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9 |

contest presented by appellant. We affirm the judg-

ment of the District Court.” Opinion of the Court of

Appeals, reproduced in the Appendix to this Peti-

tion 16a to 28a, at "aga.

1 The} is aati in the opinion of the Court of Appeals

suggesting that it may have regarded the evidence proffered as

insufficient to establish what the defendant claimed it would

establish if received and considered:

“But if the evidence proffered to prove unconstitutionality

would not in its totality and under a view most favorable to

the defendant, prove a the trial judge

-does not have to’ receive it. ” 17a.

“And again:

“There were some stronger expressions of support for an

all-voluntary army than what we have. set out above. How-

ever, appellant's own summing up of the opinions he relies

on Says ‘none states a firm conclusion that the draft can be

abolished and a wholly volunteer force can be maintained —

at reasonable eost.’” 22a.

On the other hand the Court of Appeals also said:

“Giving this data a view most favorable to appellant’s de-

fense, it was to the effect that Congress could have found

a better way to raise an admittedly needed Army than the |

system in force at the time appellant refused to Boeri for

induction.” 20a.

- ie evidence that the Court of ee" refers to as insuf-

ficient. is that which the defendant was able to present to it in

documentary form as exhibits proffered and excluded. These

exhibits were summarized in the defendant-appellant’s brief to

the Court of Appeals. Introducing that summary the defendant-

appellant’s brief to the Court of Appeals said:

- “ED, Probable Existence of Facts Claimed.

With the exclusion of the expert testimony and the data

subpoenaed from the Department of - Defense, the defend-

ant does not claim that the evidence presently before the

Court establishes sufficiently the lack of necessity and con- .

sequent unconstitutionality of the draft law. However, we

believe that the Congressional materials that. are before .

the Court are sufficient to demonstrate that the defendant

is not simply shooting in the dark. They seem to demon-

strate, indeed, that it is thoroughly reasonable to believe

that when the defendant is permitted to obtain and put in

his evidence his case will be clearly established.”

(Continued Ov following page)

LO ON tA ED A BL RA he cana He TAN e wore ELSIE SR TE east al dh i iit as hadi oi pe ee

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10

ARGUMENT. a

‘A. DRAFT CURTAILS FUNDAMENTAL’ PERSONAL.

LIBERTIES.

Fundamental to the petitioner’s defense is the degree

to which the draft curtails the exercise of fundamental

liberties. Consider as a checklist the language of Meyer

v. Nebraska, 262 U. ‘Ss. 390, 1923, which invalidated a state

statute restricting the teaching of foreign languages in .

public schools. At 362 U. 5S. 399-400 the Court said:

“The problem. for our determination, is whether the

statute, as construed and applied, unreasonably in-

fringes liberty guaranteed to the plaintiff in error by

this Fourteenth Amendment. ‘No state * * * shall

deprive any person, of life, liberty, or property with-

out due process of law.’ While this court has not

‘attempted to define with exactness the liberty thus

guaranteed, the term has received much considera-

tion, and’ some of the included things have been.

definitely stated. Without doubt, it denotes not mere-

ly freedom from bodily restraint, but also the right of

the individual to contract, to engage in any of,the

common occupations of life, to acquire useful knowl-

edge, to marry, establish a home and bring*up chil-

- dren, to worship God according to the dictates of his

own conscience, and, generally, to enjoy those priv-

(Continued from preceding ‘page)

It must have been clear to the Court of Appeals that the de- .

fendant sought consideration not only of the evidence that he

was able to place before the Court of Appeals but also other evi- .

dence that the District Court made it impossible for the defénd-

ant to present by refusing to hear it even though demanded by

subpoena. Moreover, in the third of. the statements we quote |

in this footnote from the Court of Appeals Opinion the Court

of Appeals seems to have acknowledged that given a view most

favorable to appellant the evidence presented -was not insuf-

ficient.

We conclude therefore that the judgment of the Gourt of

Appeals affirming the conviction did not. rest upon its evaluation

of the proffered evidence, but rested solely upon that Court’s

view of the scope of the District Court’s power of judicial review.

ERE IE ELT, ELIE NODA. ILE NOE LT IEEE LEE IIE OLR ELS LIE PEALE LIE EE INE LEE AE EEE ELLA LES AL

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11

ileges long recognized at common law as essential.

to the orderly pursuit of happiness by free men. [Cit-

-ing cases.]” Meyer v. Nebraska, 262 U.S. 390, 399-

. 400, 1923. —

Reviewing the liberties thys listed in Meyer v. Ne-

braska it is plain that’ military conscription under the

Selective Service Act impairs them all. It subjects the

draftee to bodily restraint, at least in the sense of being

minutely subject to command as to where he shall go and

what he shall do. It makes it impossible for him to con-

- tract effectively for work and wages. It bars him from

engaging in any of the common occupations of life. It

prevents him from engaging in any program of formal

education that he may have chosen as a civilian. He may

marry, but he cannot live with his wife and children. He

may worship God but not in his home church nor with the

guidance. and ‘leadership of his chosen religious leaders.

- and companions. And with respect to those other First

Amendment rights, freedom of speech and assembly, the

. draftee obviously cannot be where he would like to be

to speak and assemble with others.

B. RATIONAL BASIS IS TEST FOR COMMERCIAL

REGULATION. E

| "The Court below did not discuss the fact that this

Court has drawn a clear distinction between the scope of

judicial review and the test of unconstitutionality appli-

cable, on the one hand, to commercial regulation affecting

only the business interests of those subject to the regula-

tion and the scope and test applicable, on the other hand,

to enactments affecting fundamental personal liberties. _

With respect to commercial regulation affecting only:

business interests the test applied is whether “the legis-

lators, in light of the facts and testimony before them

ae et

ARN aE NE IE I TE OLLIE TE ERIE SAE An oan i SS tN

12 |

have a rational basis for finding a chosen regulatory |

scheme necessary to the protection of commerce.’ ’ Katzen- -

bach v. McClung, 379 U. S. 294, 1964, at 303-304. See also ee :

Nebbia v. New York, 291 U. S. 502,.1934; U. S. v; Caro-

lene Products Co., 304 U. S. 144, 1938; Chicago Mercan-_

tile Exchange v. Tieken, 177 F. Supp. 690, 1959. ~

C. NECESSITY IS TEST FOR LAW THAT STIFLES |

FUNDAMENTAL PERSONAL LIBERTIES.

In contrast to thé rational basis test for the validity

of legislation affecting only business or commercial in-

terests of the challenger is the one applicable to —

that stifles fundamental personal liberties.

_ An early articulation of the ‘contrast appears in

United States v. Carolene Products Co.; 304 U. S. 144,

. 1938. Footnote 4 of that case is appended to a statement of |

_ the rational basis test applicable to “regulatory legislation °

affecting ordinary commercial transactions.” 304 U. S. at.

152. The footnote begins as follows: —

“There may be narrower scope for operation of

the presumption of constitutionality when legislation

appears on its face to be within a specific prohibition

‘of the Constitution, such as those of the first ten

- amendments, which are deemed equally specific when

held to be embraced within the Fourteenth.” See

Stromberg v. California, 283 US 359, 369, 370; Lovell

v. Griffin, No. 391 this term, decided March 28, 1938

[303 U.S. 444].

Thomas v. Collins, 323 U. S. 516, 1946, drew the

contrast most clearly:

“In short the state would evele a ‘rational basis’

test, appellant one requiring a showing of ‘clear and

present danger.’ ” 323 U. S. at 527-528. , !

The Court resolved the conflict as follows, 323 U. S. | |

at 529-530: |

>

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13

“The case confronts us again with the duty our

system places on this Court to say where the individ-

ual’s freedom ends and the State’s -power begins.

.Choice on that border, now as always delicate, is

perhaps more so where the usual presumption sup-

porting legislation is balanced by the preferred place

given*in our scheme to the great, the indispensable ©

democratic freedoms secured by the First Amend-

“ment. Cf. Schneider v. Irvington, 308 US 147; Cant-

well v. Connecticut, 310 U.S. 296; Prince v. Massa-

chusetts, 321 U. S. 158.. That priority gives. these

liberties a sanctity and a sanction not permitting

dubious intrusions. And it is the character of the

right, not of the limitation, which determines what

standard governs the choice. Compare U. S. v.

Carolene Products Company, 304 U. S. 144, 152, 153.”

Shelton v. Tucker, 364 U. S. 479, 1960, stated: most

forcefully the rule applicable to fundamental —

__ liberties, 364 U. S. at 438: ,

“In a series of dette this Court has held that,

even though the governmental purpose be legitimate

and substantial, that purpose cannot be: pursued by

means that broadly stifle fundamental personal liber-

‘ties when the end can be more narrowly achieved.

The breadth of legislative abridgment must be viewed

in the dight of less drastic means for achieving the

same basic purpose.”

The court concluded, 364 U. S. at 490:

“The statute’s comprehensive interference with

associational freedom goes far beyond what might be

justified in the exercise of the State’s legitimate in-

quiry into the fitness and competence of its teachers.”

‘Aptheker v. Secretary of State, 378 U. S. 500, 1964,

involved the fundamental personal right to travel.-Quot- .

ing the language from Shelton v. Tucker that we have just

quoted, the Court held Sec. 6 of the Subversive Activities ,

14

Control Act; forbidding a member of the Communist

Party to apply for, use, or be issued a passport, to be un-

constitutional because it went beyond what was necessary

in order to accomplish the legitimate purpose that Con-

gress had in mind.

In further. elaboration of the principle we rest upon,

the Court in Aptheker quoted NAACP v. Alabama as

follows, 378 U. S. at 508: |

“It is a familiar and basic principle recently re-

affirmed in NAACP v. Alabama, 377 U. S. 288, 307,

that ‘a governmental purpose to control or prevent |

activities constitutionally subject to state regulation

may not be achieved by means which sweep un-

necessarily broadly and thereby invade the area of

protected freedoms.’ ”

.On December 11, 1967 this Court decided U. S. v.

Robel, ___-U. S. ____, 88 S. Ct. 419, 18 L. ed. 2d 508,

and invalidated the seitlon of the Subversive Activities

Control Act which bars members of the Communist Party

from employment in defense plants. There, as here, the

_ Act was defended as an exercise of the war power. The

‘Court said, 88 S. Ct. 423-424, 425-426:

“The Government seeks to defend the statute on °

the ground that it was passed pursuant to Congress’

war power. The Government argues that this Court

‘ has given broad deference to the exercise of that

constitutional power by the national legislature. .That

argument finds support in a number. of decisions of ©

this Court. However, the phrase ‘war power’ cannot

be invoked as a talismanic incantation to support any

exercise of congressional power which can be brought

_ within its ambit. ‘[E]ven the war power does not

remove constitutional limitations safeguarding essen-

” . tial liberties.’ Home Bldg. & Loan Assn. v. Blaisdell, ©

290 U. S. 398, 426. More specifically in this case, the

Government asserts that § 5(a)(1)(D) is an ‘expres-

a ee pe

15

sion of the growing concern shown by the executive

and legislative branches of government over the risks

of internal subversion in plants on which the national

defense depend[s].’ Yet, this concept of ‘national

defense’ cannot be deemed an end in itself, justifying _

any exercise of legislative power designed to promote

such a’ goal. Implicit in the term ‘national defense’

is the notion of defending those values and ideals

which set this Nation apart. For almost two centuries,

our country has taken singular pride in the democratic.

ideals enshrined in its Constitution, and the most

cherished of those ideals have found expression in the

First Amendment. It would indeed be ironic if, in the

name of national defense, we would sanction the sub-

version of one of those liberties—the freedom of as-

sociation—which makes the defense of the Nation

worthwhile.

“When Congress’ exercise a one of its enumerated

powers clashes with those individual liberties pro-

tected by the Bill of Rights, it is our ‘delicate and

difficult task’ to determine whether the resulting re-

striction on freedom can be tolerated. See Schneider

v. State of New Jersey, 308 US 147, 161. The Gov-

ernment emphasizes that the purpose of § 5(a)(1)

(D) is to reduce the threat of sabotage and espionage

in the Nation’s defense plants. The Government’s in-

terest in such a prophylactic measure is not insub-

stantial. But it cannot be doubted that the means to

implement that governmental purpose in this instance’

cuts deeply into the right of. association. Section

5(a)(1)(D) put appellee to the choice of surrendering

his organizational affiliation, regardless of whether

his membership threatened the security of a defense

facility, or giving up his job. When appellee refused

to make that choice, he became subject to a possible

criminal penalty of five years’ imprisonment and a

$10,000 fine. The statute quite literally establishes

guilt: by association alone, without any need to estab-

- lish that an individual’s association poses the threat

BAI LYSIS ODOM DOTTY A

hist

feared by the aie in proscribing it. The in-

hibiting effect on the exercise of First Amendment

rights is clear.

Soke ok

“* * * Our decision today simply recognizes that,

when legitimate legislative concerns are expressed in

a statute which imposes a substantial burden on pro- -

tected First Amendment activities, Congress must

achieve its goal by.means which have a ‘less drastic’

impact on the continued vitality of First Amendment —

freedoms. Shelton v. Tucker, supra; cf. United States

v. Brown, 381 US 437, 461. The Constitution and the

basic position of First Amendment rights i in our demo-

cratic fabric demand nothing less.”

Although this line of cases (except for. Robel) was

presented: to the Court of Appeals in the defendant-

appellant’s brief and argument, that court says:

““k * * We are cited to no case, nor does our re-

search yield a case, that would support the proposi-

tion urged on us here, to wit: that a court has the

power. to review the decisions of the executive and the

» National legislature as to how to provide for th —. :

_ tional defense, because the court thinks that it Might

be possible or probable that an all-voluntary army

could be obtained by offering more pay and other

perquisites to voluntary soldiers.”

It is true that we have neither cited nor found a case

that holds that a court can apply the test of necessity to the

draft. But we most vigorously disagree with the Court of

Appeals statement that no case has. been cited that sup-

ports that proposition. We submit that the cases cited and

quoted above do so. Clearly they hold that when an at-

tempted exercise of government power in other areas

broadly stifles fundamental personal liberties the test of .

necessity must be applied. Robel holds that test must be

applied even when the power exerted is the war power.

Ct ae See

25 MOORES GIO LED AERA OLA GENE CHOON I HR

-

an ae renee re Ee 7

17

The Court of Appeals relied chiefly on four cases to

support its decision.

Arver v. U. S., the Selective Draft Law Cases, 245

U. S. 366; 1918, was a war-time decision before the modern

) doctrine arose that necessity is the test of validity for a

law invading fundamental personal liberties. Neverthe- © |

less it expressly rested the duty of military § service and the

_ right to compel it upon need.

~

al

| Hamilton v. Kentucky Distilleries & Warehouse Com- .

pany, 251 U. S. 146, 1919, involved commercial interests

only, and its phrase “unless purely arbitrary” (251 U. S.

at 163) expressed the absence of a rational basis. ?

McCulloch v. Maryland, 4 Wheat. 316, 1819, also was

a commercial case, and, of course, antedated the modern

rule. oc ° er.

Bertelson.v. Cooney, 213 F. 2d 275, 1954, discussed

due process only in terms of discrimination. It acknowl-

edged that the power of conscription rests upon necessity.

Its declaration that Congress is the sole judge of necessity

missed the signposts that should have been seen in U. S.

v. Carolene Products Co. and Thomas v. Collins.’ That

declaration has been blazingly overruled by Aptheker and

Robel, and impliedly overruled by the state action cases,’

_ Shelton v. Tucker and NAACP v. Alabama, all supra. - -

D. CONSIDERATIONS GOVERNING REVIEW ON .

CERTIORARI.

| Rule 19 of the Supreme Court Rules ‘deinen that

certiorari will be granted only where there are special and

important reasons therefor. .It is indicated that one of the

possible reasons for granting certiorari is that a Court of

Appeals has decided a federal question in a way in con- |

flict with applicable decisions of this Court.

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“ys

18

We urge that if our issue is stated broadly this has

happened here. Stating it broadly, we would say that the —

issue is whether a district court has jurisdiction to con-

sider whether the purpose of a Congressional enactment

“can be more narrowly achieved” by “less drastic means

for achieving the same basic purpose” when the existing

—— “broadly stifle[s] fundamental personal liber-

s,” Shelton v. Tucker, 364 U.‘S. at 488, and deeply

ese: SP the area of protected freedoms,” RAAT v.

Alabama, 377 U. S. 288, at 307.

Stated broadly in this fashion the issue clearly is one

that the Court of Appeals has decided in a way in con-

flict with applicable decisions of this Court.

Another reason for.granting certiorari set forth in

Rule 19 is that a Court of Appeals has decided an im-

portant question of federal law which has not been, but

should be, settled by this Court.

This test is satisfied if the issue of this case is stated

narrowly as whether the necessity for the draft is re-

viewable by a federal court because the draft broadly

stifles fundamental personal liberties and deeply invades

the area of protected freedoms.

E. THE NATURE OF THE EVIDENCE.

' We do not see the issue now before this Court as one ~

that requires a deep or extensive consideration of the evi-

' dence that was presented below. But enough should be

said about it in this petition to demonstrate that there is .

- substantial evidence available and that the defendant-

petitioner’s claim is not a frivolous one.

At the time of the defendant’s trial in August, 1966,

the evidence available to’ him was from two sources, the

- speeches and testimony of a substantial number of Con-

gressmen arguing for abolition of the draft, and testimony

19

of Assistant Secretary of Defense Robert Morris before the ©

House Committee on Armed,Services in June, 1966, dis-

' closing some of the findit gs of Defense Department study

initiated by order of the President on April 18, 1964. The

speeches and testimony of the members of Congress and

the testimony of Secretary Morris were offered in evidence

at the trial in the District Court, and, of course, were part

of the record before the Court of Appeals. They were sum-

marized in detail in the defendant-appellant’s brief to the

Court of Appeals. We offer here,only a statement of the

conclusions that may be drawn from this body of evidence.

It is clear that there is a substantial body of opinion

among the members of Congress who have studied the

draft that it would be highly desirable to abolish it and to

rely upon:a wholly volunteer force. None of them wants

- to weaken -nor undermine the strength or quality of our

_ national defense in the process, and none states a firm

. conclusion that the draft can be abolished and a wholly

volunteer force can be maintained at reasonable cost.’

However, many of them’ point out. that whatever in-

crease i cost there might be in raising salaries in the

armed forces to attract-more volunteers would be at least

partially offset by the economies of reducing turnover and

thus reducing training cost, employing civilians or civilian

contractors to perform more of the administrative and

supply functions, delegating to civilian institutions the

teaching of skills needed by the military that have civil-

- jan counterparts, and improving the efficiency of mili-

tary operations in other respects,.such as by fitting as-

signments to abilities more closely.

Many of the members of Congress point out that in-

centives other than increased pay can also be used to help

2But see How to End the Draft, The Case For An All-

Volunteer Army, by Congressmen Stafford, Horton, Schweiker,

Shriver, and Whalen, The National Press, Inc., 1967, pp. 113-123.

Ryton 5 aOR Bhat Be -

(AAMAS A RRA LE LA AN tte er dS SLE tah RAEN LAS eA ao ts OBB ts ke te

20

attract volunteers. Among the suggestions are improved

opportunities for education and the learning of job skills

before, during and after military service; and —

recruiting and public relations activities. -

‘Many of the Congressmen believe it likely that = i.

combining monetary and non-monetary incentives the in-

creased costs of a wholly voluntary force could be kept

within the limit of the savings that it and other economies

could bring about, or at least that the net increase in cost

would be modest.

Assistant Secretary Morris, presenting the Defense

Department viewpoint, concludes in his summary of the

Defense Department study that the net increase in cost

would range between $4 billion and $17 billion. It is not

clear however that this estimate, enormously wide as it

ranges, takes into account all of the possible economies

- that the Congressmen suggest.

Not available for the trial, but iad to the Court

_ of Appeals in the defendant-appellant’s brief there was

comment by Congressman Curtis upon Assistant Secretary.

Morris’s testimony. Congressman. Curtis’s ‘comment is

. found in the February, 1967; issue of Playboy magazine

on page 168: |

“The Department claims it would cost too much

to rely entirely on volunteers. Its latest cost esti-

mates—taken ‘from a report offered by Assistant De-

fense Secretary Thomas D. Morris at the June draft ©

hearing—range from 4 billion dollars to 17 billion

dollars. However, the Department bases its figures,

-. which are almost so vague as to be ridiculous, on its

estimates of what it would cost to ‘hire’ 500,000 new

men annually without any other changes in military

policies. The Department later wrote me that ‘no

‘ estimates were made for the draft study of the com-

bined effects of improvement in fringe benefits upon

the rate of volunteering * * * since these benefits—

REPRE OG ERO OMI APRA NEE TOE I RAIAE IE PONE A OE BRE TELLIER IIE TRA LE IEEE EA LEOLLIIT SI AGENT FAINT IIE IO AD RH

21

with the exception of. training and educational op-

portunities—were not found to be effective induce-

‘ments for initial enlistment’ (Emphasis added) .. Thus,

the military establishment has erected an artificial

monetary barrier to a volunteer Army, for it has

failed to consider the large increase in re-enlistments

‘and concomitant savings that would result from im-

provement in pay and other benefits.

“Bruce Chapman, using 1965 figures leaked from

the Pentagon study, has estimated that a pay increase

totalling 3 billion dollars would reduce—through |

higher re-enlistments—the number of new army per-

‘sonnel needed each year from 500,000 to 150,000.

Greater fringe benefits and other improvements in

military life could bring the number down even fur-

ther. At the same time, the military would save at

least 2.1 billion dollars in annual training costs by

retaining the 350,000 men who otherwise would have

left after their first hitch.

“Further savings would result from using exist- :

ing civilian training establishments, including college

campuses, vocational schools and on-the-job training

programs, to train military personnel. As nearly 90%

of the technical skills used by the military are also

employed by the civilian economy, military training

programs could be reduced to the training of only the

10-20 percent of combat and‘ combat-support jobs

(field maintenance; ordnance, .battalion-level supply,

etc.) that need military, as opposed to vocational,

training. The resultant savings for the military

could be extensive. Such a program would also be a

stimulus to increased business investment in our man- |

power resources and could produce a greater number

of skilled workers for the civilian economy.”

Clearly Assistant Secretary Morris's estimates as to

the increased costs of a wholly volunteer force cannot be

accepted at face value without further examination and |

‘eross-examination. The present petitioner was thwarted in

een | Ae Te TARE Ol EDO EO 9 Ewe ‘ ae

22

his effort to accomplish such a probing: of the findings of

_ the: Defense Department study by the refusal of the trial

court to permit it either before or at the trial.

.The petitioner was further thwarted by the trial

court’s refusal to permit testimony by a knowledgeable

expert. These refusals, on top of the trial court’s refusal —

to receive even the Congressional evidence that is sum-

‘marized here, completely destroyed the petitioner’s op-

portunity to defend himself against the indictment.

In the next section of this petition we shall demon-

strate briefly that precedents overwhelmingly support the

proposition that an issue of constitutionality such as we

present here, however formidable the task, must be de-

termined on the basis of evidence, when evidence is of-

fered, including, where appropriate, expert testimony,

rather than on the basis of the presumption of constitu-

tionality or of the court’s generalized knowledge of the

American: scene.

Although many of the cases we shall cite dealt with

matters of commercial regulation for which,.as we have .

seen, the appropriate test is rational basis, the obligation to

examine the evidence must be held to be even stronger

where, because of the statute’s deprivation of fundamental

personal liberties, the test of constitutionality is that of

necessity, for unless the deprivation of personal liberty

is found to be reasonably necessary it denies the substan- ©

_ tive due process promised by the Fifth Amendment.

F. THE. RIGHT TO PRESENT EVIDENCE OF |

_” CONSTITUTIONAL FACTS.

Petitioner’s defense is a claim of fact, constitutional °

or legislative fact rather than adjudicative fact, to be sure,

but nevertheless susceptible of proof by evidence. Such

evidence, if offered, should be received, and the facts

should be found as the basis for the Court’s judgment.

A DY ete A IW TE RTE AS eatery ah ee AE OL Nes cer eee MORE INI Le sgh yf DN ahaa see Pe a et ee ee ee

23

_ The full scope of the doctrine has grown up gradually

over several decades. In the summary that follows we

approach it chronologically.

1.The Rent Control Cases.

Block v. Hirsh, 256 U. S. 135, 1921, was an eviction

suit. The tenant claimed the protection of the District of

Columbia rent control law. Justice Holmes held the

measuse was justified by the war-time emergency condi-

tions, He discussed the fact, apparently on a judicial no-

tice basis, at some. length, observing:

“No doubt it is true that a legislative Seduiion of

facts that are material only as a ground for enacting

a rule of law, for instance, that a certain use is a pub-

lic one, may not be held conclusive by the courts.”

Chastleton Corporation v. Sinclair, 264 U. S. 543,

1924, was a suit to enjoin enforcement of an order reducing

the rents for the plaintiffs apartment house. J ustice

Holmes said, 264 . 547-549:

“A law depeyiding upon the existence of an ‘emergency

or other gértain state of facts to uphold it may cease -

to operate if the emergency ceases or the facts change,

even though valid when passed. * * *

“* * * In our opinion it is open to inquire _

whether the exigency still existed upon which the

continued operation of the law depended. * * *

Without going beyond the limits of judicial knowl-

edge, we can say at least that the plaintiff’s allegations

cannot be declared offhand-to be unmaintainable, and

that it is not impossible that a full development of

the facts will show them to be true. In that case the

operation of the statute would be at an end.

“* * * Obviously, the facts should be accurately .

ascertained and carefully weighed, and this can be

done more conveniently in the Supreme Court of the

U *

PS ORR AE CEN EEO CN LAE Cat YUE TUL YE LITTON LAER OPN UY 9 EVE ENE ENO RE VAY MEE AET PN ee Dem Lo cone 17 Fee my

'. 24 .

District than here. The-evidence should be preserved,

so that, if necessary, it can be considered by this

C Oo ”

2. The Shoddy and Bus Franchise Cases.

Weaver v. Palmer Bros., 270 U. S. 402, 1926, was a |

suit to enjoin enforcement of a Pennsylvania statute for- |

bidding the use of shoddy (reclaimed textile fibers) in the

manufacture of bedding and upholstery. Mr. Justice

Butler, for the Court, made the following statement, 270

Uz S. at 410: |

“The question for decision is’ whether the provision

purporting absolutely to forbid the use of shoddy in

comfortables violates the due process clause or the

equal protection clause. The answer depends on the

facts of the case. Legislative determinations express

or implied are entitled to great weight; but it is always

- open to interested parties to show that the legislature

er has transgressed the limits of its power. Pennsylvania

= Coal Co. v. Mahon, 260 U. S. 393, 413. Invalidity may

| be shown’ by things which will be judicially noticed

(Quong Wing v. Kirkendall, 223 U. S. 59, 64, or by

facts established by evidence.” (Emphasis added.)

From the evidence’the Court concluded that the pro-

hibition of the use of shoddy was unnecessary in order to

accomplish the legislative purpose of preventing the spread

. of infection. Thus the law was invalid and the injunction

_ restraining the enforcement of the law was upheld.

‘In City of Hammond v. Schappi Bus Line, 275 U. S.

- 164, 1927, a suit to enjoin an enforcement of an ordinance

of the city restricting the plaintiff's right to operate its

buses on the city streets, the Court directed the District

Court to take evidence as a basis for constitutional deci- .

sion.

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3. Whitney Vv." California.

“Whitney v. California, 274 U. S. 357, 1927, untied

a conviction for violation of California’s criminal syndica-

lism act. In a separate concurrence Mr. J ustice Brandeis

held that a legislative declaration

“does not preclude inquiry into the question whether,

at the time and under the circumstances, the condi-

tions existed which are essential ‘to validity under |

_the Federal Constitution. * * * Whenever the

fundamental rights of free speech and assembly are

alleged to have been invaded, it must remain open

to a défendant/to present the issue whether there

actually did exist at the time a clear danger; whether

.the danger, if any ‘was imminent; and whether the

- * evil apprehended was one so substantial as to justify

’ the stringent restriction interposed by the legislature.

The legislative declaration, like the fact that the stat-

ute was passed and was sustained by the highest

court of the state, creates merely a rebuttable pre- —

sumption that these conditions have been satisfied.

'-“Whether in 1919, when Miss Whitney did the

things complained of, there was in California such

. clear and present-danger of serious evil, might have

been made thé important issue in the.case. She might

have required that the issue be determined ‘either .

by the Court or the jury.” 374 U. S. 378-379.

4. The Borden and Carolene Cases.

Borden’s Farm Products Company, Inc. v. Baldwin,

293 U. S. 194, 1934, sought to enjoin enforcement of the:

pricing provisions of the New York Milk Control Law. °

The trial court dismissed the case for failure to state a

cause of action but the Supreme Court remanded it for.

evidence to’ be taken and the facts to be found. The

Court said, 293 U. S. 209-210:

ee ee gan, ee OR I EEO Bed ROMO Oe OR, TTR CT IPO —:

26

“Respondents invoke the presumption which attaches

to the legislative action. But that is a presumption of

fact, of the existence of factual conditions supporting

the legislation. As such it is a rebuttable presumption.

* * * Tt is not a conclusive presumption, or a rule

‘of law which makes legislative action invulnerable

to constitutional assault * * *;. ¥

“& * * But where the legidlative action is suitably

challenged, and a rational basis for it is predicated

- upon the particular economic facts of a given trade

or industry, which are outside the sphere of judicial

notice, these facts are properly the subject of evidence

and of findings. With the notable expansion of the

_ scope of governmental regulation, and the consequent

\ assertion of violation of constitutional rights, it is. in-

creasingly important that when it becomes necessary

forthe Court to deal with the facts relating to par-

ticular commercial or industrial conditions, they

should be presented concretely with appropriate

determinations upon evidence, so that conclusions

“shall not be ‘reached without adequate factual sup-

port.” (Emphasis added. )

U.S. v. Carolene Products Co., 304 U. S. 144, 1938,

sustained a Federal statute barring from interstate com-

merce what were called filled milk products, that is, .

skimmed milk in which the butter fat was replaced with

vegetable fat. The decision was based upon constitutional

facts put into evidence in the trial court. Mr. J ustice Stone

said, 304 U. S. 152-153:

“We may assume for present purposes * * * that

a statute would deny due process which precluded the

disproof in judicial proceedings of all facts which

would show or tend to show that a statute depriving

the suitor of life, liberty or — had a rational

basis. ‘

* oe #

27 |

“Where tig xistence of a rational basis for legis-

lation whose

upon facts beyond the sphere of judicial notice, such

facts may properly be made the subject of judicial

inquiry, Borden’s Farm Products Co. v. Baldwin, 293,

U. S. 194, and the eonstitutionality of a statute predi-

cated upon the existence of a particular state of facts

may be challenged by showing those facts have ceased

to exist. Chastleton Corp. v. Sinclair, 264 U. S. 543.”

5. Smith v. California.

' Smith v. California, 361 U. S. 147, 1959, iia

a Los Angeles ordinance prohibiting possession of obscene

matter because it failed to require any scienter on the part

of the book seller-defendant as to the contents of the book. —

In a separate concurrence Mr. Justice Frankfurter urged

that in the trial the defendant should have been permitted -

to introduce expert testimony regarding the prevailing

literary and moral community standards. He said, 361

U.S. 165: .

“* # * To exclude such pm testimony is in effect

to exclude as irrelevant evidence that goes to the very

essence of the defense and therefore to the constitu-

tional safeguards of due process.”

Mr. Justice Harlan in his concurrence agreed with

Frankfurter that

“due process * * * requires a state to allow a litigant

in some manner to introduce proof”

as to conteniporary community standards. But he would

not have insisted upon testimony of experts as the only -

available means of proof. He said, 361 U. S. 172:

“In my opinion this. conviction is fatally defective in

that the trial judge, as I read the record, turned aside

every attempt by appellant to introduce evidence

nstitutionality is attacked depends -

R PR aR

28

bearing on community standards. The exclusionary

rulings were not limited to offered expert testimony.

This had the effect of depriving appellant of the oppor-

tunity to offer any proof on a constitutionally relevant

issue. On this ground I would reverse the judgment

below, and remand the case for a new trial.”

6. Discussion.

?

In this case no court could be expected to have at its

fingertips the mass of legislative, historical, and statistical

data that the Congressional material shows need. to be

- considered in determining the question of the necessity of —

the draft. A refusal to consider the evidence is a with-

drawal from performance of the judicial function. .

We have found helpful thinking on this matter by

Professor Dean Alfange, Jr. in his article “The Relevance

of Legislative Facts in Constitutional Law,” 114 Univer-

sity of Pennsylvania Law. Review 637, March, 1966. He

says at pages 643-644:

“It may readily be granted that questions relative to

the wisdom or appropriateness of, or the public in-

terest or public need behind, legislative enactments

are usually settled finally by legislative judgment. If

questions of constitutional‘authority are not raised,

such legislative facts are not material to the validity

of the statute. If the authority to enact a federal law

is found within the delegated powers of Congress,

and the law cannot reasonably be said to violate any

of the constitutional prohibitions on congressional

action, it is enough that Congress has seen a need and

has acted to meet it. But where the exercise of leg-

islative power approaches a constitutionally pro-

hibited area, as in legislation restricting spéech, the

question of need becomes crucial, and no sound con-

stitutional judgment can be made except by consider-

ation of legislative facts. A law which appears on its

_ 29

face or in application, to constitute an abridgment of -

' . gpeech—or a prohibition of the free exercise of re-

ligion, or denial of the equal protection of the laws by

_ a state, or a state obstruction of interstate commerce,

‘or that has any- other. effect that the federal or state

governments are constitutionally forbidden to achieve

—must be justified in terms of an overriding public

need relative to the extent of the abridgment. Unless

the court is to adopt the absolutist position, and re-

fuse to accept any justification for the law, or to de-

_cline to enforce the constitutional prohibition by

adopting the position of self-restraint and accepting

any superficially. plausible justification, it must ex-

amine the sufficiency of the justification put forward.

This may perhaps be described as questioning the

judgment of the legislature as to the wisdom. or ap-

propriateness of the legislature’s enactments, but it

is nonetheless an unavoidable exercise of the court’s

political responsibility.

‘Doubtful constitutional questions can never be

answered entirely irrespective of legislative consider-

ations of public need.”

At page 648 of his article Professor Alfange presenits

the following discussion:

’ “Tt must be granted that constitutional arguments

based on hecessity may be open to suspicion. Mr.

Justice Jackson, in rejecting the government’s con-.

tention in the steel seizure case of 1952, thus com-

mented: ‘The plea is for a resulting power to deal

with a crisis or an emérgency according to the neces-

sities of the case, the unarticulated assumption being

' that necessity kriows no law.” Because of its ready

availability to totalitarian regimes to justify abandon-

ment of the rule of law, the idea that ‘necessity knows

no law’ excites a natural abhorrence. But one need

not accept all implications of this idea—although it

is certainly true that. as necessity becomes increas-

ingly desperate for individuals or nations it becomes

EIT LEI LAIN ED DON LEE LE cals»

Ee ee CN A ES SRE . — .

30 |

increasingly unrealistic to expect strict observance

of settled legal rules, a fact that Mr. Justice Jackson

expressly recognized elsewhere. What must be con-

-ceded is that law must be kept abreast of-social neces-

sity, and that just as Congress has the responsibility

of keeping statutory rules in line with current social

needs, the Supreme Court has the responsibility of

insuring that the Constitution does not become an

insurmountable barrier to the accomplishment of

‘- valid and essential national goals.”

We suggest that in spite of its abhorrent extension of

governmental power over the lives of our citizens, the

draft has been accepted as constitutionally valid in the —

past because of the feeling that the courts have shared

with Congress and the people that conscription was neces- .

_ sary to national survival.. Certainly this was the feeling ©

that sustained conscription during the’ Civil War, and

‘World Wars I and II. And peacetime conscription since

World War II undoubtedly was supported by a similar

feeling amidst the tensions of the cold war, though it has

. not existed without dissent, as Congressman Curtis mani-

fests.

But it is necessary to be on aici lest. old assump-

tions keep us from examining new facts. The Con--

gressional materials presented in this case argue repeat-

edly that the changing technology of warfare made the

peacetime conscription. of 1964 inefficient, wasteful, in-

effective for defense purposes, and—the crucial constitu-

tional fact—unnecessary.

A law valid at one time may cease to be valid in

‘the facts change. Chastleton Corp. v. Sinclair, 264 U. S.

at 547, 1924. Kress, Dunlap & — Inc. v. Downing, 286

F.2d 212, 1960.

. %See Jean Carper, Bitter Greetings, Grossman Publishers,

1967. _ . a

31

So far as we have been able to find no court has

ever been presented, except in this case, with a thorough

factual challenge to the necessity of the peacetime draft.

Perhaps no such challenge as we make here could have

been made much earlier than this. Perhaps it is only with

recent technology and population growth that the chal-

lenge has become possible. Moreover, so far as we know,

it is only the work of the members of Congress that has

made readily available the factual data necessary for

evaluating the challenge. The product of that work is

what we are presenting to this Court. Thus the fact that

the draft law has not already been overthrown should not.

bar its validity from being seriously considered in this

case. |

G. SUBSIDIARY ISSUES.

Presented in the courts below and fairly comprised.

_within the questions that this petition brings to this Court

‘ were several subsidiary issues which the Court of Appeals

did not discuss in its opinion and which we therefore deem -

it unnecessary to present in detail to this Court now.

However, if. this petition is granted and the case is re-

manded for trial on the evidence, it may be that the trial

court should be instructed by this Court as to the admissi-

bility of the several kinds of evidence that were offered

below and as to the right of the defendant to ascertain by

subpoena in advance of trial what evidence is available

in the hands of the government. These matters: involve

questions of governmental privilege, appropriateness of

expert testimony, judicial notice of the Congressional ma-

- terials, and the applicability of rules 17 (c) and 16(b) of

the Federal Rules of Criminal Procedure.

Unless this Court directs otherwise in granting this

petition for certiorari these matters will be presented in

our brief on the merits.

OT Re Ee PE PDI TPR TENE YO BEF: |

ARO ech AN A SAU ANE A AMES A Sk BAST at a A aD et Ea Rs el AS at oe

| 32

CONCLUSION.

The defendant-appellant says he is not guilty because

the Selective Service Act which-he is held to have violated °

is unconstitutional. It.is unconstitutional, he says, be-

- cause at’ the time of his failure to report for induction

conscription was not reasonably necessary as a means of

raising an army or providing for the national defense.

Because conscription under the Selective Service. Act.

deeply impairs and inhibits exercise of fundamental per- .

sonal liberties guaranteed by the first Ten Amendments:

of the United States Constitution it can be permitted

under the substantive requirements of the due process

Clause of the Fifth Amendment only if it is reasonably

necessary. It is not.sufficient to sustain it that there may.

’ be a rational basis for the Act.

The petitioner offered evidence that i in 1964 conscrip-

tion was unnecessary since armed forces of equal effective-

ness could have‘ been provided by wholly voluntary

means. This evidence was totally excluded by the trial

court, and the exclusion was affirmed by the Court of

Appeals on the ground that a District Court does not have

jurisdiction to provide judicial review of the Congressional

determination that the draft was necessary. This holding

procedural due process to which the defendant-petitioner

was entitled, a complete exclusion of the defense that he

sought to: make to his criminal indictment..

Stated narrowly, the question is one which has not

been settled by this Court but should be. Stated broadly,

the question decided by the Court of Appeals was decided

there in conflict with applicable decisions of this Court.

In a procedural sense the courts below have so far de-

parted from the accepted and usual course of judicial

33. |

proceedings as to call for an exercise of this Court’s power

ef supervision.

The petition for certiorari should be er

. Respectfully submitted,

' Ratpx Rupp,

| Attorney for the Petitioner.

' Rupp, Oper & Mixer, | _

Of Counsel.