The Court has held that 'War does not cease with a cease-fire order . ...' Ludecke v. Watkins, 335 U.S. 160, 167 . It 'continues for the duration of [the] emergency' (Woods v. Cloyd W. Miller Co., 333 U.S. 138, 141 ), and empowers the Government 'to guard against the immediate renewal of the conflict.' Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 161 , 40 S. Ct. 106 (quoting from Stewart v. Kahn, 11 Wall. 493, 507). In the Kentucky Distilleries case the Court indicated that war powers endure for some purposes until the treaty of peace is effective. 7 If, for the [391 U.S. 936 , 945] purposes of the draft, war continues until the treaty is effective, the attempted inductions of the petitioners in the Nugent case were manifestly not peacetime inductions.
In World War II Germany surrendered May 8, 1945, and Japan surrendered September 2, 1945. See Lee v. Madigan, 358 U.S. 228, 230 , 79 S. Ct. 276. On December 31, 1946, the President proclaimed the cessation of hostilities, declaring that a state of war still existed. (12 Fed.Reg. 1.) Congress declared the state of war with Germany terminated on October 19, 1951 (House Joint Res. No. 289, 65 Stat. 451) and the President proclaimed the same on October 24, 1951 (66 Stat., c. 3). The effective date of termination of state of war with Japan was April 28, 1952, when the Japanese Peace Treaty took effect (66 Stat., c. 31). See Lee v. Madigan, 358 U.S. 228, 230 .
Mr. Justice Cardozo's question about peacetime draft seems, therefore, to be an open one still. While some decisions suggest that war powers may be exercised in an 'emergency' prior to declaration of war, e. g., Silesian-American Corp. v. Clark, 332 U.S. 469, 476 , there are other decisions directly linking the power of conscription to Congress' power under Art. I, 8, cl. 11, to 'declare war.'8 For example, in United States v. Mac- [391 U.S. 936 , 946] intosh 283 U.S. 605 , the Court said: 'In express terms Congress is empowered 'to declare war,' which necessarily connotes the plenary power to wage war with all the force necessary to make it effective; and 'to raise ... armies,' which necessarily connotes the like power to say who shall serve in them and in what way.' Id., at 622.
This Court has not reached the merits of the question which I have been discussing since the Prize Cases, 2 Black 635, decided in 1863. Even though Lincoln was putting down an insurrection within the country, the Court was divided five-to-four, Mr. Chief Justice Taney
______--- stated in 1777 in a letter to John Adams: 'Our people, even under the monarchial government, had learned to consider it [the draft] as the last of all oppressions.' Jeffersonian Cyclopedia 263 (1900).
Chief Justice Taney said of the congressional power 'to raise and support armies': '[T]he words themselves, even if they stood alone, will not, according to their known and established use and meaning in the English language, justify this construction [permitting conscription].
Putting down an internal insurrection, like defending our shores against an aggressor, is certainly quite different from launching hostilities against a nation or a people overseas. 10 I express no opinion on the merits. [391 U.S. 936 , 948] But there is a weighty view that what has transpired respecting Vietnam is unconstitutional, absent a declaration of war; that the Tonkin Gulf Resolution is no constitutional substitute for a declaration of war; that the making of appropriations was not an adequate substitute; and that 'executive war-making is illegal.' Those are the views of Francis D. Wormuth in The Vietnam War: The President versus the Constitution (1968). 11 Many share his views. 12 Another professor has recently pointed out the serious deleterious effects in the country stemming from the Court's failure to decide whether the President may constitutionally wage a foreign war in Vietnam without a declaration of war by Congress. Hughes, Civil Disobedience and the Political Question Doctrine, 43 N.Y.U.L.Rev. 1 ( 1968). In these type of cases, he says, 'to deny certiorari, to dismiss suits without [391 U.S. 936 , 949] a reasoned opinion has a tendency to arouse suspicion that the Court is shrinking from making pronouncements about the basic norms of the [ constitutional] system.' Id., at 18. If an executive war is unconstitutional, he says, but the Court refuses to invalidate it, then the President's 'conduct strengthens the moral case for disobeying executive orders which stem from his departure from constitutional demands.' Id., at 19.
As I said, the question whether there can be conscription when there has not been a declaration of war, has never been decided by this Court. It is an important question. It is a recurring question. It is coming to us in various forms in many cases as a result of the conflict in Vietnam. I think we owe to those who are being marched off to jail for maintaining that a declaration of war is essential for conscription an answer to this important undecided constitutional question.
I would therefore grant certiorari in this case.
[ Footnote 1 ] Section 12(a) provides in part: 'Any member of the Selective Service System ... charged as herein provided with the duty of carrying out any of the provisions of this title, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty ... shall, upon conviction 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. ...'
[ Footnote 2 ] There is no permissible distinction between men conscripted for armed, combatant service overseas and those drafted for civilian work. Initially, the Government purports to uphold the conscription both of combatants for armed service and conscientious objectors for 'civilian work' under the same source of power-Congress' war power and power to raise armies. Moreover, the loss of liberty for a conscientious objector drafted into civilian work is not appreciably less than that suffered by the combatant soldier. Except in unusual cases, the Local Board will not permit the conscientious objector to fulfill his work obligation in his home town (32 CFR 1660.21(a)). The conscientious objector may indeed be ordered to do civilian work overseas (32 CFR 1660.31(b)). There is nothing in the Act or regulations which precludes assigning the conscientious objector to civilian work in a theater of war, where his personal safety is imperiled. If he does not perform the assigned work 'satisfactorily,' he faces prosecution (32 CFR 1660.31(c)).
[ Footnote 3 ] The House bill required classification of all free, white males 18 to 45 into groups of 25 men. Each group would have to provide one recruit. Under Monroe's version, if this was not done, the recruit would be chosen by draft, but the drafted man could provide a substitute. (2 Selective Service System, The Selective Service Act, Appendix A, at 145). Under the House version failure to provide the recruit resulted in a monetary forfeiture levied on each member of the group. (Id., at 153-154.) Daniel Webster strenuously argued in the House of Representatives that the draft bill was unconstitutional. He noted that the draft power claimed for Congress by Madison and Monroe was not limited to time of war or invasion and would permit a draft of men for any type of military service, at home or abroad, at the discretion of the Government. (Daniel Webster, Speech Against the Conscription Bill, House of Representatives, December 9, 1814, in L. Schlissel, ed., Conscience in America 67 (1968). And see 86 Cong. Rec. 5210). 'Who will show me,' he argued, 'any constitutional injunction, which makes it the duty of the American people to surrender every thing valuable in life, & even life itself, not when the safety of their country and its liberties may demand the sacrifices, but whenever the purposes of an ambitious & mischievous Government may require it? Sir, I almost disdain to go to quotations & references to prove that such an abominable doctrine has no foundation in the Constitution of the country.' (Id., at 68.)
[ Footnote 4 ] The Act of 1863 provided in 1, 'That all able-bodied male Citizens of the United States, and persons of foreign birth who shall have declared on oath their intention to become citizens under and in pursuance of the laws thereof, between the ages of twenty and forty-five years, except as hereinafter excepted, are hearby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States when called out by the President for that purpose.'
The country was divided up into enrollment districts, and enrollment officers made up two types of lists: class No. 1 consisting of all unmarried eligible enrollees plus others 20 to 35; class No. 2 consisting of the others. Men could be called up during a two-year period following the July after their enrollment and would have to serve up to three years. A pecking-order for draft purposes was compiled on a Draw or lottery-type system. The President would inform each enrollment district of its conscription quota. Exemptions were given the physically and mentally handicapped and sole surviving sons of widows, widowers with young dependent children, etc.
[ Footnote 5 ] In the Selective Draft Law Cases, 245 U.S. 366, 388 , 165, the Court said: 'Cogency, however, if possible, is added to the demonstration by pointing out that in the only case to which we have been referred where the constitutionality of the Act of 1863 was contemporaneously challenged on grounds akin to, if not absolutely identical with, those here urged, the validity of the act was maintained for reasons not different from those which control our judgment. (Kneedler v. Lane, 45 Pa.St. 238.)' In Lichter v. United States, 334 U.S. 742 , 757, n. 4, the Court said: 'The draft was put in force both by the Union and by the Confederacy during the Civil War and its validity was sustained by the courts in both North and South. 'The power of coercing the citizen to render military service, is indeed a transcendent power, in the hands of any government; but so far from being inconsistent with liberty, it is essential to its preservation." The Lichter case itself did not concern a conscription act, but rather statutes enacted in 1942-1945 providing for recovery of excessive wartime profits, applied in that case to 1942-1943 earnings. Peacetime exercise of the war power was, therefore, not involved in Lichter.
[ Footnote 7 ] The Court has used different tests to determine when war has ended depending on the nature of the war power sought to be exercised. In Lee v. Madigan, 358 U.S. 228 , involving a prohibition of the Articles of War against court-martial trials for rape or murder committed in the United States 'in time of peace,' and in Reid v. Covert, 354 U.S. 1 , 33-35 (opinion of Black, J.), concerning court-martial jurisdiction of civilians abroad, the Court said war ended with the cessation of hostilities. In respect to seizure and removal of aliens from this country, Ludecke v. Watkins, 335 U.S. 160 , summary exclusion of aliens without hearing; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 , imposition of housing and rent controls; Woods v. Cloyd W. Miller Co., 333 U.S. 138 , and conserving manpower by forbidding liquor, Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 , the Court has held that 'war' extends beyond the cessation of hostilities. In Knauff the Court said as recently as 1950 that we were then in a state of war. 338 U. S. at 546, 70 S.Ct. at 314. Because no decision of this Court
has faced the question directly of the need for a declaration of war to uphold conscription, no decision indicates when 'war' ends for draft purposes.
[ Footnote 8 ] The case against the constitutionality of a peacetime draft is forcefully argued in a lawyers' brief on the subject which Senator Wheeler had printed in the Congressional Record when Congress was debating the bill that became the Selective Service Act of 1940. The argument, praised by Senator Wheeler as a 'real contribution' to the debate, reviews the history of conscription in England prior to the American Revolution, concludes that peacetime draft was not tolerated there, and urges that the Framers of the Constitution intended Congress to 'raise' armies' in the manner by which they were raised in England. 86 Cong. Rec. 5206-5210. Jefferson
[ Footnote 9 ] The dissent by Mr. Justice Nelson, which the other three joined, stated:
[ Footnote 10 ] See United States v. Smith, 27 Fed. Cas. p. 1192 (C.C.D.N.Y.1806). The defendant was charged with helping outfit a military expedition against a foreign nation with which the United States was at peace. (See 1 Stat. 384.) As one defense, he proposed to call witnesses who would prove that the President had consented to the military venture against Spanish holdings in South America. The report of the case contains an extensive, scholarly debate between counsel on the President's power to himself order a foreign invasion.
A two-judge court, speaking through Paterson, J., held that the Constitution, 'which measures out the powers and defines the duties of the president, does not vest in him any authority to set on foot a military expedition against a nation with which the United States are at peace.' ( Pp. 1229-1230.) 'Does he possess the power of making war? That power is exclusively vested in Congress. ... [T]he executive magistrate ... and commander-in-chief of the forces by sea and land [may] ... repel an invading foe. But to repel aggressions and invasions is one thing, and to commit them against a friendly power is another. ... There is a manifest distinction between our going to war with a nation at peace, and a war being made against us by an actual invasion, or a formal declaration. In the former case, it is the exclusive province of congress to change a state of peace into a state of war. A nation, however, may be in such a situation as to render it more prudent to submit to certain acts of a hostile nature, and to trust to negotiations for redress, rather than to make an immediate appeal for arms. Various considerations may induce to a measure of this kind: such as motives of policy, calculations of interest the nature of the injury and provocation, the relative resources, means and strength of the two nations, etc. and, therefore, the organ entrusted with the power to declare war, should first decide whether it is expedient to go to war, or to continue in peace. ...' (Pp. 1230-1231).
[ Footnote 11 ] An Occasional Paper published by the Center for the Study of Democratic Institutions, Santa Barbara, California.
[ Footnote 12 ] There are of course opposed views; and many pros and cons of the issue are canvassed in The Vietnam War and International Law (Amer.Soc.Int. Law, ed. by Richard A. Falk) also published in 1968.