Amicus Curiae Brief — Crocker v. United States

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Liisi Y

SUPREMY COURT, U. S.

| Office Supreme Court, U.S.

FILED

In THE MAR 13 1970 —

Supreme Court of the United Btoten DAVIS, CLERK

OcroBer TERM, 1969 | 7

No. 1201

GrorceE W. Crocker,

' ; Petitioner,

Gow : —V.—

. UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

wre

Ee BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND.

THE MINNESOTA CiVIL LIBERTIES UNION,

AMICI CURIAE, IN SUPPORT OF

PETITION FOR CERTIORARI

LEON FRIEDMAN 4

70 W. 40th Street

New York, N. Y.

Marvin M. Karparkin

1345 Sixth Avenue

New York, N. Y.

Attorneys for: Amici * Curiae

ALAN H, LEVINE ‘

MELVIN L. WULF 2

* 156—5th Avenue |

New York, N. Y.

KENNETH T. IsEn

Minnesota Building

St. Paul, Minnesota

of Counsel

‘

”

Nee MED

TABLE OF CONTENTS —

PAGE

SAPPUCET OM ANDINA 1

Reasons for Granting the Writ Es ACR en sans a 2

eae eae Cava NOR 1 ve aa Ae 22

us ‘TaBLE OF AUTHORITIES :

Cases: :

Afroyim v. Rusk, 387 U.S. 253 (1967) 20 ll

Aptheker v. Secretary of State, 378 U.S. 500 (1964) 16, 18

Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924)... 20

Dombrowski v. Pfister, 380 U.S. 479 (1965) whe

Edwards y. California, 314 U.S. 160 GL 0 ieee erases 16

Erie R.R. v. Tompkins, 304 U.S. 64 Seve So ey ee

Ex: Parte Quirin, 317 U8. 1-000 14, 15

Galvan v. Press, 347 U.S. 522 (1954) 18

Griswold vy. Connecticut, 381 U.S. 479 (1965) 18

Hamilton y. Kentucky Distilleries and Warehouse

Company, 251 U.S. 146 22 2 Mees Mtetwa oda 18, 19, 20

Hamilton y. University of California, 293 U.S. 245

teh af aan Reus ce Ne NS Ne eR aoe ch 12,45

Harmon v. Brucker,,355 U.S. 579 PRU) et 18

Hart v. United States, 391.U.S. 956 Ca cts cs: pibetes 12

~ Heflin v. Sandford, 142 F.2d 798 (Sth Cir. 1944) 2. 14

: PAGE

lawara District County Council v. Wickham, 101

RMMTINI: EacRies RE RMD hos rcavcmtdestpsrnep os 20

In Re Jenison, 265 Minn. 96, 120 N.W.2d 515 °(1963),

reversed and remanded 375 U.S. 14 (1963) 200220... ei!

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ........ 14

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). ..... 18

Kneedler v. Lane, 45 Pa. 238 (1863) <....c.ccccccccccccecceosescess 10.

Lichter v. United States, 334 U.S. 742 (1948) 14, 15, 20

McCulloch v. Maryland, 4 Wheat. 316. (1819) ney vee 10

Meyer. v. Nebraska, 262 U.S. 390 (1923) cocccccccco-o-- 16,18

Mitchell v. Harmony, 13 How. 115 (1851) -......0....-...-....- 19

O’Callahan v. Parker, 395, U.S. 258 (1969) 2000000000... 11,17

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 00... 18

Popovici v. Agler, 280 U.S. 379 (1980) .2.......-.-..cceiece-- 10

Powell -v. MeCormack, 395 U.S. 486 (1969) 20. 11

Pei -V. Covert, Soe U So 11D) nk 18

Schneider v. Smith, 390 U.S. 17 (1968) occ 11

Seleci. e Draft Law Cases (Arver v. United States),

245 U.S. 366 (1918) ............. eee, Sisco 18. 1G

Shapiro v. Th@mpson, 394 U.S. 618 (1969) EUS ARS ORI 16

Sherbert v. Verner, 374 U.S. 398 (1963) ........................ 21

Swift v. Tyson, 16 Pet. 1 (1843) ........ SES TERT pM OEES 2

Truax v. Raich, 239 U.S. 33° (1915) cccccccccccssscseccsecsssese. 16, 18

United States v. Brown, 381 U.S. 437 (1965) cc

ill

PAGE

United States v. Cohen Grocery Company, ‘255 U:S.

sg Bp or altel Maes Nat aAR donna Bln cine cee 18

United States v. Howe, 17 USCMA 165, 37 CMR 429

Bob en ee Oa Be Sweet ae pebasdetinnt eyovate 17

United States v. Macintosh, 283 U.S. 605 (1931) ....13, 19

United States v. Nugent, 346 U.S. 1 fh te Dee 22

United States vy. 0’ rien, 391 U.S. 367 (1968) 12, 14,15

United States v. Ropel, 389 U.S. 258 (1967) ts |

United States v. Rugsell, 80 U.S. 623 £5.18 8 [Mt eRe 19

United States ex rél. Zucker v. Osborne, 54 F. Supp.

984. (WeD.N.Y. 1944) oon ecccccseeccene Stites 14

Youngstown Sheet & Tube Co. y. Sawyer, 343 U.S. 579.

ERE) aoe Corns op eee ca Me | be

* Constitutional Provisions:

United States Constitution

Second Amendment ....... Rese penioc cane issue mene | 7,

Fifth Amendment... Se eae T RCE ON ORTINE 1s

Statute: |

Uniform Code of Military Justice

10 USC $$§801, et ac! Sete tO A Pe OY aT aS — 17

Other Authorities: ¢

Boudinot, 1 Annals of Congress, 1st Oni. FOL 2 7

110 Cong. Ree. 8575 (April 21, Lg inal alia Se Mie Red “17

_1 Farrand, Records of the Federal Convention 25

UEP ERG oo seneies een ee eae Se ea 4

Freeman, “The Constitutionality of Peacetine Con-

scription,” 31 Va.L.Rev. 40 CEP etches tt) 5 5. 3,8

Original Understanding,” 67 Michigan Law Review

tcl ot coh IR ea EC 3,8

Hamilton, Federalist No. 24 (J. Cooke ed. 1961) ........ 6

2 J. Elliott, Debates (2d Ed. BRIO D vases tectdbaisiisceec 6,7

Kaufman, “The Selective Service System,” in Christian

Bay (Finn, ed:), A Conflict of Loyalties (1968)... 17

Madison, 1 Annals of Congress, \st Cong., 434 ................ 7

Mason and Daggett, Annals of Congress, 13th Cong.,

scat Ba ee IR ee os Hf)

2 Papers of Thomas Jefferson 18 (J. Boyded. 1950) 4

Report of the National Advisory Commission on Selee-

tive Service, In Pursuit of Equity: Who Serves

When Not All Serve? GR teccerr ge ey See 16-17

LRN ATO) re ek ee 15, 16, 21

4 The Writings and Speeches of Daniel Webster 57

Be nag Gree a adic nee ee Le eee 9

18 Tyler’s Quarterly Historical and Genealogical

magazine 79 (1939) a 10

Warren, “The Bill of Rights and the Military,” in

Cahn (ed.), The Great Rights (t: ; RO 20, 21

IN THE

Supreme Court of the United States

Ocroper Term, 1969

No. 1201

Georce W. Crocker,

Petitioner,

—

Unrrep Srares,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT 7

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

THE MINNESOTA CIVIL LIBERTIES UNION,

AMICI CURIAE, IN SUPPORT OF

PETITION FOR CERTIORARI

— .—__— -. —Interest of Amici _

In this case, petitioner was convicted under the Military

Selective Service Act of 1967 of refusing to submit to

induction into the armed forces. Among other rrounds

raised on appeal, petitiorier claimed that the Aet was un-

constitutional. The conviction was affirmed by the Court of

Appeals for the Eighth Cireuit.

Amich file this brief* to urge the Court to grant the

petition“so that it might closely examine the asserted con-

* The written conse

nts of the parties have been filed with the

Clerk of the Court,

stitutional foundation of the Military Selective Service

Act of 1967. Amici believe that -such a close examina-

tion, together with a re-examination of the basis for decision

in the Selective Draft Law Cases, 245 US. 366 (1918), will

reveal an absence of constitutional authority for peacetime

conscription. This brief summarizes the results of his-

torical research which has led amicus to conclude that

the Fowrting Fathers did not intend, in drafting the

Constitution, to empower the government to impress man

into military service in peacetime. We believe it will be of

substantial interest to the Court.

Reasons for Granting the Writ

Today there are few more vital issues in the relationship

between man and his government than the asserted right

of the state to demand military service from its citizens

and the asserted duty of all able-bodied men to respond to

that claim. Yet, despite the importance of this problem, it

has been fully examined by this Court only once, in the

Selective Draft Law Cases (Arver vi United States), 245

U.S. 366 (1918), a case now fifty-two years old. Further, the

Arver case reviewed the problem only in a war-time set-

ting, after a solemn declaration of war had been made: hy

Congress. More important, the case rested on the most

dubious historieal and legal evidence. Only three pages of

the Government’s brief and. one paragraph of the defen-

dants’ briefs were devoted to the intentions of the men who

framed the Constitution as revealed at the Philadelphia

and state conventions, traditionally’ the most important

source of constitutional interpretation. Thus the Court's

decision ignored crucial historical evidence that the framers

of the Constitution did not intend to give Congress the

power to conscript directly.

This case will therefore present to this Court for the

first time a challenge to the constitutionality of federal

conscription in peacetime, based upon a comprehensive his-

torical analysis of the framing and adoption of the C‘on-

stitution. Although 183 years have passed since the Phila-

delphia Constitutional Convention, no detailed study of the

framers’ intention and purpose concerning the military

clauses has been passed upon by any federal court, least of

all the Supreme Court. This case attempts to correct that

omission.

It is impossible in this short amici brief to cite all the

historical evidence bearing upon the question of peacetime

conscription." What follows is a brief outline of the ma-

terial which will be fully developed by the amici if cer-

tiorari is granted.

: | 1.

1. The framers of the Constitution considered a stand-

ing professional army the greatest danger to liberty. The

overreachings of the royal armies during the later Stuart

period of England* as well as. the behavior of British

{

*A recent article by one of the counsel for amici herein indi-

cates the type of: material which will be presented by amici if

certiorari is granted. See Friedman, “Conscription and the Con-

stitution: The Original Understanding,” 67 Michigan Law Review

1493 (1969). ;

* Proposals to conscript for the- British regular army were ad-

vanced in Parliament in 1704 and 1707 but were firmly rejected.

See Freeman, “The ( ‘onstitutionality of Peacetime Conscription,”

31 Va.L.Rev.*40, 68-69 (1944). Conscription was never in force

in England until 1916, except for limited militia service which

was carefully restricted. See Friedman, op. cit., 1499-1503.

+ :

troops in the colonies before the Revolutionary War con-

vinced the American statesmen that strict control over the

military was a vital safeguard against tyranny. In the

same vein the colonial leaders were wary of lodging too

much power in any central government which could tram-

ple on the liberties of the people. Thus even during the

Revolution, Congress refused to implement any scheme of

federal conscription and relied instead on a system of

quotas and levies from the state militia forees to fill out -

the Continental army.’ The quota system was cumbersome

and unreliable since the states were slow to supply men

and could not be compelled to do so. Since the states also

fell behind in making payments to the central treasury,

the Continental Congress was hamstrung in its efforts to

keep up and control its own military forces.

2. The revolutionary experience led the leadiglg colonial

statesmen to conclude that a stronger central government

with the power to control its own army was vital for na-

tional defense. On the very first day of the Philadelphia

Constitutional Convention. in 1787, Edmund “Randolph,

leader of the Virginia delegation, complained that the Con-

federation could not defend itself and a new system of

organizing the government was necessary. Randolph intro-

duced a new plan which hecame the kkeleton of the new

Constitution. But Randolph made clear in his speech intro-

3 Thomas pao: expressed the prevailing sentiment in the

States against conscription in a letter to John Adams, dated May 16,

1777:

Our battaiions for the Continental service was sometime ago so

far filled as rendered the recommendation of a draught from

the militia hardly requisite. And the more so as in this coun-

try it ever was the most unpopular and impracticable thing

that could be attempted. Our people under the monarchial

government have learnt to consider it as the last of all op-

pressions. 2 Papers of Thomas Jefferson 18 (J. Boyd ed. 1950).

a te bbrdhie sii i Sat tithe cada ti

: |

ducing the so-called Virginia plan, that it did not give the

federal government carte blanche in organizing its army.

He ‘said:

“What reason to expect that the Treasury will be better

filled in future, or that money can be obtained under the

present powers: of Congress to support a war. Volun-

feers not to be depended on for such, a purpose.

Militia difficult to be collected and almost impossible to

be kept in the field. Praughts stretch the strings of

government too violently to be adopted. Nothing short

of a military force will answer the end of war, and this

only to be created and stpported by money.”

1 Farrand, Records of the Federal Convention

25) (1911) (emphasis supplied.)

‘Thus on the very first day of the Convention, Randolph, an

initiator of the Constitution, exeluded the power of the.

federal government to draft. As a strong Iederalist figure

who wished to give the new central government* wide

powers, Randolph’s denial of that authority is especially

significant. He and other Federalist figures were anxious

to grant the new government the right to enlist its own

army, a power which it lacked under the Confederation.

Many Antifederalist leaders, remembering the dangers of

a peacetime professional military foree, wanted to rely

only on the state militia and saw no need for any kind of

national army. The debate at the Convention and during

ratification centered on the besser alternative of enlistment

of a federal force, which many thought was unnecessar’y.

A fortiori, the power to draft was unthinka¥le to the states.

men ¥f the time.

3. The Federalist Papers, written by Madison and

Hamilton ‘confirm that the militia was to be the main

military force. A small professional force was required

only to repel a sudden invasion until the militia could be

mobilized. A federal army would also guard the frontiers.

But Madison and Hamilton made clear that the people at

large would satisfy their military obligations only through

the militia which could be federalized only under limited

conditions and not in a regular army.‘

4. In the state ratifying debates. the. impossibility of

conscription was reflected in many ways. The Anti-

federalists opposed the Constitution because it gave the

federal government the power to tax but they never com-

plained of the power to conscript. In discussing the military

clauses, these crities stated that the citizens at large could

be taken into the militia and then made subject to court

martial jurisdiction.» No such complaint was made about

the power to raise armies since no one thought any citizen

could be taken into the regular army against his will.

* In Federalist No. 24, Hamilton wrote about the frontier forts:

“These garrisons must either be furnished by oceasional detach-

ments from the militia, or by permanent corps in the pay of

the government. The first is impracticable: and if practicable,

would be pernicious. The militia would not long, if at all,

submit to he dragged from their occupations and families to

perform that most disagreeable duty in times of profound

157)

° See particularly the debates in the Maryland convention, 2 J.

Elliott, Debates (2d Ed. 1836) at 552. ™

Many antifederalists introduced amendments to limit the

term of @plistments but never suggested any restriction on’

conscription.’ All of these attacks on the Constitution were

predicated on the assumption that no power to draft

existed in the federal government. I*urthermore, the

delegates in the state ratifying conventions often identified

the military powers under the new Constitution as identical

to those under the old Confederation which admittedly had

no power to conscript.’

9. The First Congress, composed of many of the found-

ing fathers, also showed that it did not contemplate any

federal power to conscript. Madison introduced a con-

scientious objector clause in the Bill of Rights, but it would

have protected only militiamen and not regular army

soldiers.’ If he thought the citizens at large could be taken

into the federal army, he would surely have suggested

similar protection in that situation. The Second Amend-

ment itself which sought to protect the state militia from

being destroyed by the federal government is inconsistent

with any federAl power to conscript. Many comments of

individual Congressmen also support this viey.®

°2 Debates 552, 4 id. at 245, 3 id. at 660.

“2 Debates 352, 468, 537. .

*1 Annals of Congress, Ist Cong., 434,

° See, e.g., remarks of Elias Boudinot. once President of the

Continental Congress and in 1789 a Representative from New

* Jersey, who defended the conscientious-objector clause. “In form-

ing a militia,” he said, “an effectual defence ought to be ealeulated,

and no characters of* this religious description ought to be com-

pelled to take up arms.” He added that “by striking out the clause.

people may he led to believe that there is an intention in the Gen-

- eral Government to compel all its citizens to bear arms.” 1 Annals

of Congress, 1st Cong., 767. Since the clause in question related

only to the militia, Boudinot’s concern. for the protection of von-

sr semester < Serie renee estate steee enone ner

i N

6. The Selective Draft Law Cases of 1918 did not have

all this historical evidence before it. Instead, the Supreme

Court cited the universality of conscription in 1918 and the

supposed existence of conscription .a England and the col-

_onies as support for the view that the federal government

could draft. But in 1789 when the Constitution had been

adopted, no country in the world had exercised the power to

conscript its citizens as a whole.’ In England and the col-

onies, a militia system had been instituted, but it had no

relation to a modern draft. The militia was thought of as

the whole body of male citizens who were expected to own

a weapon, enroll, appear for training sessions and help

defend their community when emergencies arose. But

generous provisions existed for substitutions or payment of

militia fines in lieu of service. The militia was thought of

as a local defensive unit which would not be sent out of its

organizing county or colony. It eould be ealled into service

only under specified conditions. In Kneland practically no

one had to serve in the militia against his will and in the

colonies most compulsory elements in the militia were

fading in the years before the Revolutionary War. The

Constitution recognized the continued status of the state

militias and provided that they could he federalized only

in the three instances found in Clause 15 of Article i

Section 8. .

scientious objectors would be meaningless if Congress had the power

to conscript for the regular army. For in that case the general

government would be able “to compel all its citizens fineluding

conscientious chjectors] to bear arms,” a power which Boudinot was

denying.

7°? See Freeman, op. cit. at p. 68.

See Friedman, op. cit. 1502-06. :

9 : /

7. The Supreme Court in 1918 also relied on the fact

that a conscription plan was introduced into Congress (but

not passed) during the War of 1812 and was enacted during

the Civil War. But the important point about the 1814

proposal to draft was ‘that it was not accepted by Congress

even though the nation had been invaded and the very

capital occupied. Senators Jeremiah Mason and David

Daggett’* and Representative Daniel Webster insisted, that

the federal government had no power t@ conscript.

Webster said: |

“Is this, Sir, consistent with the chargeter of a free

Government? Ts this civil liberty? Is’ this the. real

character of our Constitution. No, Sir, indeed it is not.

The Constitution is libelied, foully libelled. The people

of this country have not established for themse Ives

such a fabric of despotism. T hey have av purchased

at a vast expense of their own treasure i their own

blood a Magna Carta to be slaves. W here is it written

in the Constitution, in what article or section is it

contained, that you may take children from their ‘par--

ents, and parents-from their children and compel them

to fight the batiles of any war, in which the folly o

the wickedness of Government may engage it? Under

what concealment has this power lain hidden, which

‘now for the first time eomes to trample down &

destroy the dearest rights of asp liberty ?” #

° ¢ . > . . °

8. During the Civil W ar, the first federal conscription

law was passed. However, opposition to the law was

widespread. Only six per cent of the Union forees were

* Annals of Congress, 13th ‘Cong., 3rd Sess. 80. 72.

“14 The Writings and Specches of Daniel Webster 57 (1903).

va “40

drafted. Many statesmen and judges still doubted federal

power to draft. Chief Justice Roger Taney wrote a pro-

posed opinion declaring the Enrollment Act unconstitu-

tional,’ but he never had the opportunity to deliver it. The

Pennsylvania Supreme Court held initially that the law

was invalid, but the replacement of one of the judges

brought about a reversal of that decision.’

9. The draft of World War I was also attacked by many

critics. But the patriotic pressures of the times made im-

possible any serious inquiry into Congressional military -

power. However, the World War I draft took place after

a Congressional declaration of war and is not a precedent

for peacetime conscription.

10. It is an axiom of constitutional interpretation that

the intent of the Constitution-makers must prevail. The

frequently cited opinion of Chief Justice John Marshall

in McCulloch v. Maryland, 4 Wheat. 816 (1819) does not

undereut that principle. Marshall indicated that the

framers intended the necessary and proper clause to -be

read broadly and that the traditional means of exercising

the powers enumerated in the Constitution and, those log-

ically necessary from the express powers enumerated

should be available to Congress. However, any power spe-

cifically exeluded by the framers cannot be utilized.”

418 Tyler’s Quarterly Ilistorical and Genealogical Magazine 79

(1939)...

™ Knecedler v. Lane, 45 Pa. 238 (1863).

See, e.g., concerning a hroad reading of the judicial power,

Popo.witv. Agler, 280 U.S. 379, 380 (19380).

ve aes

11. Furthermore, this Court has consistently refused to

restrict any personal rights more narrowly than’ the framers

intended. As was recently noted in Schneider v. Smith, 390

U.S. 17, 25 (1968), “the purpose of the Constitution and

the bill of Rights ... was to take government off the

backs of people.” This Court has suggested in many ‘of

its opinions that there is a minimum distance which must

be maintained between government and the citizen, between

authority and the people.” That minimum distance is de-

fined not only by the Bill of Rights, but by the checks and

balances within the government,. by the separation of

powers between the different arms of government, and

by the limited grant of authority in the Constitution to

the government. It is clear that the military clauses were

intended to be not only a grant of power but a restriction |

of power, a restriction to protect the citizen against arbi-

trary government action. That intent of the framers must

be given effect by this Court.

12. In many parallel instances in recent vears the Court

has reexamined the intent of the framers in the field of

personal rights and denied the government certain powers

which it had claimed and had exercised for many years.

The decisions rested in part on an historical analysis of

the framers’

intent. Thus the power of Congress to ex-

elude members-elect was restricted in Powell vy. McCormack,

399 U.S. 486 (1969); its power to denationalize citizens

who voted in-foreign elections was overturned in Afroyim

v. Rusk, 387 U.S. 253 (1967); the power of the military to

try soldiers in peacetime for non-service connected crimes

eliminated in O'Callahan y. Parker, 395 U.S. 258° (1969).

™ See, e.g., United States v. Brown, 381 U.S. 487 (1965) ; Dom-

browshi v. Pfister, 380 U.S. 479 (1965). ;

In each case-what appeared to be the original understand-

dng of the framers was restored.*®

13. Amici have argued thus far that this Court should

grant certiorari in order to consider the substantial histori-

this Court, that the original understanding of the Constitu-

tional framers was that the power to raise armies was

never intended to include the power to: conser pt. Amici

also urge that regardless of how the early “Ei aa

and post-constitutional history may be evaluated; there is

such a considerable difference between the exercise of the

power to conscript in wartime, and its exercise in peacetime,

that this Court should‘in any event grant certiorari to de-

termine whether the present peacetime draft is within the

constitutional power of Congress. This Court has never

ruled on the constitutionality of a peacetime draft. In

Hamilton v. Univer: ity of California, 293 U.S. 245 (1934),

. the power to draft in wartime was assumed. However, Mr.

Justice Cardozo, in his concurring opinion, observed: °

“There is no occasion at this time to mark the limits

of governmental power in the extraction of military

service when the Nation is at peace.” 293 U.S. at 265.

“e similar ohservation was made by Mr. Justice Douglas

dissenting from the denial of certiorari in Holmes v. United

a States, 391 U.S. 936 (1968), and Hart v. United States, 391

Justice Stewart in Holmes v. United States, supra, and,

dissenting opinion of Mr. Justice Douglas in United States

eV. O’Brien, 391 U.S. 367, 389-390 (1968).

*®See also Erie R.R. v. Tompkins, 304 U.S. 64, 72-73 (1938)

of new historical evidence concerning the intent of the framers.

‘eal evidence, never previously brought to the attention of

U.S. 956 (1968). See, also, separaté memorandum of Mr. -

which overruled Swift v. Tyson, 16 Pet. 1 ( 1843) in part because -

14. A review of the decisiong customarily cited as up-

_ holding Congressional power to conscript discloses that in

_ each of them the constitutional power was premised on an .

actual or contemplated Congressional declaration of war.

(a) The’ most significant decision is the Selective Draft

Law Cases, 245 U.S. 366 (1918), upholding World War I

conscription. It is unmistakably premised on the consti-

tutional legitimacy of . - ~ ; car

“... the exaction by government from the citizen

of the performance of ‘his supreme and noble duty of

contributing to the defense of the rights and honor of

the Nation.as the result of .a war declared by the great -

~ representative body of the people .. . ” 245 U.S. at 390.

(b) In United States v. Macintosh, 283°U.S. 605 (1931),

this Court held that Congress could properly deny natural-

ization to an alien who refused to take an unqualified oath

to serve “in the armed forces of the nation in time of war

. .”™ 283 U.S. at 623. The entire discussion of Congres-

sional power in Macintosh contemplates Congfessional

power to compel military service in connection with a decla-

ration of war. Id. at 622. In ‘Macintosh the Court listed a

large number of emergency powers which could be exercised

by Congress “toctMe end that war may not result in de-

feat ...”* Ibid. Binally, this Court made it clear that it

regarded the war powers to include “by necessary implica-

tion, the power, in the last extremity, to compel the armed ~

services of any citizen in the land . . .” 283 U.S. at 624

(emphasis added). Nothing which this Court said in Mac-

imtosh, or in the Selective Draft Law Cases, provides con-

stitutional justification for a peacetime draft. The “last

extremity” obviously has. not been reached at a time where

there has been no declaration of war.

we”

197 U.S. 11, 29 (1905), asserts contressional power to

compel military service for the country notwithstanding the

risk “of being shot down in its defense,” again obviously a

reference to wartime service.

(d) Wartime decisions of lower. federal courts are in

accord. See Heflin v. Sandford, 142 F.2d 798, 800 (5th Cir.

1 1944) (“Te present war is described by its author as ‘total

: war’ meaning that every means of destruction will be used,

and men, women and children alike killed. \It means, also,

that total effort may be necessary to resist it, men, women

and children all doimg what they can.”); United States ex

rel. Zucker v. Osborne, 54 F. Supp. 984 986 (W.D.N.Y.

1944) (“We are not concerned with the power to conscript

individuals in time of peace. We are concerned with that

power in time of war.”).

15. Decisions of this Court at the time of World War IT

and subsequent thereto which have asserted or reiterated

the constitutional power to conscript have likewise referred _

explicitly and implicitly to a wartime draft. See Lichter v.

United States, 334 U.S. 742, 755-758 (1948) (upholding the

Renegotiation Act as “part of a national policy adopted in

time of crisis in the conduct of total global warfare... ae E

Ex Parte Quirin, 317 U.S. 1, 25 (upholding the validity

of special wartime commission to try enemy spies as within

Presidential power “as Commander-in-Chief of the Army

in time of war and of grave public danger...”). In United

States v. O’Brien, supra, this Court again asserted that the

Constitutional power of Congress to raise and support

armies includes the power “to classify and conscript man-

power for military service ...,” 391 U.S. at 377, citing as

authority for this power the prior decisions of this Court

ll Rte 1 ORI I EoD a at LY LBS AB NE a NE Th

at aS (

in Selective Draft’ Law Cases, supra, Lichter v. United

States, supra, and Ex Parte Quirin, supra. Sincé«the de-

cision in O’Brien contains no discussion or analysis what-

soever of the constitutional distinctions between wartime

draft and peacetime draft, it is plain that the O’Brien

decision is no more a precedent for the legitimacy of

' peacetime conscription than the earlier cases discussed

previously.’®

SP oe

16. Review by this Court of the differing perimeters of

constitutionality of wartime.and peacetime conscription is

vital because of the acknowledged totaP impact which con:

scription has upon the individual. It is hardly debatable

that compulsory military service, whether in time of war or

peace, is always a severe deprivation of civil liberties.

Assuming that this deprivation is constitutionally tolerable

“in the last extremity,” see Hamilton v. University of Cali-

fornia, supra, the question which has not yet been an-

swered is whether such a totality_of deprivation of liberty

in peacetime exceeds constitutional limits. The liberties

involved have all been recognized by this Court as consti-

tutionally proteeted in other contexts. Conscription obvi-

_ ously affects one’s right of movement, residence and travel.

*° In United States v. O’Brien, this Court upheld, as within the

constitutional power tocconscript, the validity of a statute penatiz-

ing willful destruction ‘or mutilation of a selective service regis

tration certificate.. It does not implicitly follow that in uphold-

ing the constitutionality of requiring possession of a peacetime

draft registration certificate, the Court simultaneously upheld the

_ constitutionality of peacetime conscription. There is considerable

difference between compelling registration in peacetime for pos-

sible wartime conscription, and in actually ordering someone eon-

scripted in peacetime. The recent Report of the President’s Com-

mission on an All-Volunteer Armed Force (February 1970) (the

Gates Commission) recommended a volunteer armed force in

peacetime, and.a structure for quickly reinstituting a standby

draft in time of war or other national emergency, including,

specifically, “A register of all males who might be conscripted

when essential for national security.” Report, p. 119.

See Shapiro v. Thompson, 394 U.S. 618 (1969) ; Aptheker

v. Secretary of State, 378 U.S. 500 (1964) ; Edwards v. Cali-

fornia, 314 U.S? 160 (1941). Conscription precludes the

right to engage in one’s chosen profession. See Truaz v.

Raich, 239 U.S. 33 (1915) ; Meyer v. N ebraska, 262 U.S. 390

(1923). It is a deprivation of property, since it imposes a

form of in kind taxation on a selected group of young men

rather than by financial taxation of the nation as a whole

to pay the actual economic value of the conscripted services.

~ See Report of Gates Commission, supra, Chapter 3, “Con-

scription Is a Tax”, passim. See also Report of the Na-

tional Advisory Commission on Selective Service, In Pur-

suit of Equity: Who Serves When Not All Serve? 17-29,

*°“Draftees and draft induced volunteers in such a force are

coerced into serving at levels of compensation below what would

be required to induce them to volunteer. They dre,-in short, under-

paid. This underpayment is a form of taxation.” Report of Gates

Commission, at 23-24.. “Under conscription, each inductee and

reluctant volunteer is compelled to render services to the govern-

ment. He is required to pay a tax—a tax paid (and collected )

in kind rather than cash—but the form of the payment does not

alter the substance of the relationship. The amount of the tax

is the difference between the pay that the inductee or reluctant

volunteer actually receives as a first-term serviceman and the pay

that would be required to induce him to enlist.” Jd. at 24-25. .

“What is of questionable morality is the discriminatory form that

this implicit tax takes; and even more, the abridgement of individ.

ual freedom that is involved in collecting it.” Id. at 27. “Is it

right and proper that a large tax be confined to a small fraction:

of our young able-bodied males in order to relieve taxpayers in

general from having “to pay high taxes?” Jd. at 27-28. “It is

unlikely that any Congressman would ever propose enactment of °

a general tax of.the kind now imposed by the draft. If one ever

were proposed, it would have little chance of being approved by

Congress. If approved by Congress, it is hard to imagine that it

would be held constitutional by the courts. This is a hidden tax

which persists only because it is obscure. No tax. is perfect, of

course, but it is hard to imagine a means of imposing the cost of

defense, or any other Government activity for that matter, more

in conflict with accepted standards of justice, equality and freedom

in the United States.” Jd. at 28. (Emphasis added.)

‘gk fe 17

97-59 (1967). Furthermore, compulsory military service

infringes on freedom of speech and association, since per-

sons in the military are obviously held to a more restricted

standard than persons in civilian life. See United States

v. Howe, 17 USCMA 165, 37 CMR 429 (1967). Likewise, a

person drafted into the armed services becomes subject to

militarv law, as well as to military commands, and is

thereby deprived of many constitutional safeguards which

are not provided in the Uniform Code of Military Justice,

10 USC $§801, et seq., including principally trial by jury.

See O’Callahan v. Parker, 395 TLS. 258 (1969) .°

In addition, it makes the individual, regardless of his

wishes, an instrument of foreign and military policy wit]

which he may disagree, either generally or specifically. Yet

he’ has no choice but to obey his military orders requiri

him to be such an instrument.”!

No citations are needed to emphasize the most egregious

deprivations effected by a nilitary draft: severe bodily in-

jury, maiming for life, and in many cases death. Perhaps

the only thing which might be more severe than deprivation

of life, is requiring an individual to become a killer of

others. This is the ultimate deprivation of liberty imposed

by a military draft.”

*1 “By handing boys over to the arbitrary and complete domi-

nation of the Government, we put it in the power of the Govern-

ment to indoctrinate them with political doctrines then popular

with the Government. In wartime it is bad enough; in peacetime

it would be intolerable.” Senator Robert A. Taft, quoted in state-

ment by Rep. Lindsay, 110 Cong. Record 8575-6 (April 21, 1964).

** Statutory provisions exempting conscientious objectors from

compulsory military»service may satisfy the constitutional guar-

antee of religious liberty for those judged to meet the statutory

requirements. But for‘ail persons, conscientious objectors or other-

wise, it cannot be doubted that when the government “orders

citizens to kill or die, it comes close to the limits that even Hobbes

put down around the authority of Leviathan.” Christian Bay,

quoted in Kaufman, “The Selective ‘Service System,” in Finn

(ed.), A Conflict of Loyalties 252 (1968).

18 ©

17. The due process clause of the Fifth Amendment pro-

tects “certain fundamental personal liberties from abridg-

ment by the federal government”, Griswold Vv. Connecticut,

ash U.S. 479, 492 (1965) (concurring opinion by Mr. Jus-

tice Goldberg). If these personal liberties protected by the

ne Amendment include freedom of travel, Aptheker v.

Secretary of State, supra; right of privacy, Griswold v.

Connecticut, supra; right to employment, Truaz v. Raich,

supra; right to attend private religious school in ‘lieu of

public school, Pierce v. Societs y of Sisters, 268 U.S. 510, 535

(1925); and right to instruction in a foreign language,

Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) ; then a for-

tiort, the Due Process Clause must include the protection

of a fundamental personal liberty which -is infinitely more

dear, the liberty to be free from compulsory military ser-

vice in the absence of a declaration of war and ultimately to

be free of the risk of death and the compulsion to kill others.

18. As encompassing as the war power undoubtedly is, »

it is equally clear that the Constitution ‘places limits on its

exercise. It is axiomatic that “the phrase ‘war power’ can-

not be invoked as a talismanic incantation to support any’

exercise of Congressional power~which can be brought

within its ambit.” United States v. Robel, 389,U.S. 258, 263 .

(1967). The due process clause is a limitation on all Gov-

ernmental power, “even the warpower,” Galvan v. Press,

347 U.S. 522, 530 (1954); “The exercise of the war-

power ... is subject to the Fifth Amendment.” Hamilton

‘v. Kentucky Distilleries and Warehouse Company, 251

U.S. 146, 155 (1919). See Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963); Harmon v. Brucker, 355 U.S. 579,

(1958); Reid v. Covert, 354 U.S. 1 (1957 ); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); United

States v. Cohen Grocery Company, 255 U.S. 81, 88 (1921).

Ge 19

19. Attempts by the legislature‘or the executive to

exercise extraordinary powers posited on the existence of

a wartime emergency have been subject to judicial re-

view of whether the emergency exists or, once having

existed, still persists. This Court has exercised such power

of judicial review as far back as the Mexican War. See

Mitchell v. Harmony, 13 How. 115, 134 (1851), where Chief

Justice Taney, in reviewing the propriety of a certain

taking of property by a military expedition, reviewed the

law and concluded “that in all of .these cases, the danger

must be immediate and pending ... it is the emergency

.that gives the right, and the emergency must. be shown to -

exist before the taking can be justified.” Accord: United:

States v. Russell, 80 U.S. 623, 628 (1871) (“Exigencies of

the kind do arise in time of war or impending public

danger, but it is the emergency, as was said by a great

magistrate, that gives the right, and it is clear that the

emergency must be shown -to exist before the taking can

be justified.”). In United States v. Macintosh, 283 U.S. 605,

622 (1931), this°Court was clear in its statement that the

entire panoply of enormous war powers,might be iefoked

by Government, but only “when necessity calls for its

exercise. ...” 23

In Hamilton v. Kentucky Distilleries and Warehouse

Company, 251 U.S. 146 (1919), Mr. Justice Brandeis, for a

unanimous court, concluded that the World War I Pro-

hibition Act, enacted pursuant to the exercise of wartime

emergency powers, was not constitutionally deficient even

. ‘

*3'The Macintosh majority listed: among the war powers: re-

strictions on freedom of speech and press and trial by jury; con-

fiseation of property without compensation ; fixing of prices; tak-

ing over of railroads; “. . . and other drastic powers, wholly,

inadmissible in time of peace, exercised to meet the emergencies

of war.” 283 U.S. at 622.

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though the war was over because wartime emergency eco-

nomic conditions still persisted. Nevertheless, the entire

court conceded the principle “that the question of the con-

tinued validity of the War Prohibition Act under the

changed circumstances depends upon whether it appears

- that there is no longer any necessity for the prolfbition

of the sale of distilled spirits for beverage purposés. .. 2”

Id. at’163. (Emphasis supplied.) “A law depending upon

the existence of an emergency or other certain state of

facts to uphold it may ‘cease to operate if the emergency

ceases or the facts change, even though valid when passed.”

Chastleton Corp. v. Sinclair, 264 U.S. 548, 547-48 (1924).”

Chief Justice Warren has cited a decision of the Supreme

Court of Australia, /llawara District County Council v.

Wickham, 101 Commw. L.R. 467 (1959) as “invalidating

a far-reacKing veterans preference statute on the grounds

that with the World War IT emergency past, the war-power

justification for such laws, under the Australian Constitu-

tion, had ceased.” Warren, “The Bill of Rights and the

Military,” in Cahn (ed.), The Great Rights 110, n. 50 (1963).

This Court has held that “The conscription of manpower

is a more vital interference with the life, liberty and prop-

erty of the individual than is the conscription of his prop-

erty or his profits or any substitute for such conscription

of them.” Lichter v. United States, 334 U.S. 742, 756 (1948).

Amicus respectfully urges that this Court can be no less.

concetned with reviewing the constitutional basis for the

peacetime exercise of manpower conscription than it has

been for the peacetime exercise of property conscription.

Certiorari should be granted for the reason best stated

by former Chief Justice Warren in his James Madison.

Lecture:

21. ie

“... if judicial review is to constitute a meaningful

restraint upon unwarranted encroachments upon free-

om in the name of military necessity, situations in

which the judiciary refrains from. examining the merit

of the claim of necessity must Bs kept to an absolute

minimum.” oe

Warren, “The Bill of Rights and the Military,” in Cahn

(ed.), The Great Rights 102 (1963). |

20. This Court has instructed that where a Governmental:

regulation impinges on individual liberties, it is incumbent

upon Government “to demonstrate that no alternative

forms of regulation?’ Sherbert v. Verner, 374 U.S. 398, 407

(1963) were available. For a dramatic application of this

_ principle, see In Re Jenison, 265 Minn. 96, 120 N.W.2d 515

(1963), reversed and remanded 375 U.S. 14 (1963); -de-_

cision modified in accordance with remand order, 265 Minn.

136, 125 N.W.2d 588, 589 (1963). “It is self-evident that a

constitutionally acceptable alternative to raising an army

by compulsory military serv ice is raising an army by volun-

tary military service, See .Report of Gates Commission,

supra, Chapter Ong, “Protecting the Free Society,” passim.

To repeat, neither this question nor any of the other cén-

stitutional questions involved in a peacetime draft have

ever been decided hy this Court.** As Mr. Justice Douglas

wrote:

. - ¥ . . - . , .

“It is an important question. it is a recurring ques-

“tion. It is coming to us in. various forms in many cases

as a ae of’ the conflict in Vietnam. I think we owe

to thos

taining that a declaration of war is essential. for con-

*4See Report of Gates Commission, supra, at 166.

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scription an answer to this important undecided con-

stitutional question.”

Holmes vy. United State s, 891 US. 936, 20 L.Ed. 24 856, S64

(16S). “The enemy is not vet so near our pate,” United

of Mr. Justice F rankfurter) that traditional constitutional

safeguards may be “overborne by military exigencies.

CONCLUSION |

For the foregoing reasons, amici respectfully urge

that the petition for certiorari be granted.

Respectfully submitted,

Leon FrrepMan g

70 West 40th Street *

New York, N ew York 10018

Marvin M. Karparxrx

1345 Sixth Avenue

\ New York, New York 10019

Attorneys for Amici Curiae

Aan H. Levine ie

Mevv¥4y ‘L. Weir nl

156—dth. Avenue

New York, N. Y. |

Kennet Trsex . ' ,

Minnesota Building =~

St. Paul, Minnesota .* eel oe od

Of Counsel ++ ad ?

March, 1970.

PONS Ry

-_*

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