391 U.S. 936 (1968), 1072, Holmes v. United States

Docket Nº:No. 1072.
Citation:391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856
Party Name:Albert H. HOLMES, petitioner, v. UNITED STATES.
Case Date:May 27, 1968
Court:United States Supreme Court

Page 936

391 U.S. 936 (1968)

88 S.Ct. 1835, 20 L.Ed.2d 856

Albert H. HOLMES, petitioner,



No. 1072.

United States Supreme Court.

May 27, 1968


Kenneth S. Jacobs, for petitioner.

Solicitor General Griswold, Assistant Attorney General Vinson and Beatrice Rosenberg, for the United States.


Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.


Memorandum of Mr. Justice STEWART.

This case, like Hart v. United States, No. 1044, Misc., 391 U.S. 956, 88 S.Ct. 1851, 20 L.Ed.2d 871, involves the power of Congress, when no war has been declared, to enact a law providing for a limited period of compulsory military training and service, with an alternative of compulsory domestic civilian service under certain circumstances. It does not involve the power, in the absence of a declaration of war, to compel military service in armed international conflict overseas. If the latter question were presented. I would join Mr. Justice Douglas in voting to grant the writ of certiorari.

Mr. Justice DOUGLAS, dissenting.

Petitioner, who describes himself as a Jehovah's Witnesses minister, was classified by his Selective Service Appeal Board in August 1965 as a conscientious objector. See § 6(j) of the Universal Military Training and Service Act of 1948, 62 Stat. 604 (now the Military Selective Service Act of 1967), as amended, 50 U.S.C.App. § 456(j). Under § 6(j), as it read during all dates relevant to this case, a conscientious objector who, like petitioner, is also opposed to noncombatant military service, may in lieu of induction 'be ordered by his local board * * * to perform * * * such civilian

Page 937

work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate. * * *' Beginning in October 1965 petitioner and his Local Board exchanged a series of letters in which the Board explained to petitioner the types of civilian work available and petitioner asserted his religious scruples against serving the United States Government in any capacity, including civilian work programs. Petitioner reiterated this position in a personal meeting with his Local Board.

On February 7, 1966, the Board sent petitioner an order to report an February 21 to an Illinois state hospital for civilian work assignment. However, on the day he was due to report, petitioner notified the Board that he refused to do so far religious reasons.

By indictment, petitioner was charged with willful failure to report as ordered, in violation of § 12(a) of the Act. 1 At his nonjury trial petitioner moved for [88 S.Ct. 1836] judgment of acquittal. That motion was denied, petitioner was convicted and sentenced to three years imprisonment, and the Court of Appeals affirmed, one judge dissenting. United States v. Holmes, 387 F.2d 781 (C.A. 7th Cir.).

Petitioner asks this Court to decide whether a draft 2 of men into the Armed Forces in times of peace is constitutionally

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permissible. In the absence of a declaration of war, he argues, a draft is not authorized and is equivalent to involuntary servitude. The Court of Appeals held that Congress' power to conscript men into the Armed Forces was not so limited, and the Government, opposing certiorari, states that '[e]ven assuming that the present time is one of 'peace,' it has long been settled that the power to raise armies by conscription is not limited to periods of war or national emergency,' citing United States v. Henderson, 180 F.2d 711 (C.A. 7th Cir.), cert. denied, 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372, and Etcheverry v. United States, 320 F.2d 873 (C.A. 9th Cir.), cert. denied, 375 U.S. 930, 84 S.Ct. 331, 11 L.Ed.2d 263.

It is clear from our decisions that conscription is constitutionally permissible when there has been a declaration of war. But we have never decided whether there may be conscription in absence of a declaration of war. Our cases suggest (but do not decide) that there may not be.

In Hamilton v. Regents of University of California, 293 U.S. 245, 265, 55 S.Ct. 197, 79 L.Ed. 343, Mr. Justice Cardozo, concurring (joined by Justices Brandeis and Stone), indicated that 'governmental power in the exaction of military service when the nation is at peace' was an open question.

Page 939

At the time Mr. Justice Cardozo wrote (1934) the Selective Draft Law Act of 1917, 40 Stat. 76, had been tested in this Court and its validity and congressional power to conscript men for military service upheld. This Act, however, was enacted May 18, 1917, after Congress had declared war on the German Empire on April 6, 1917. (Public Res. No. 1, 65th Cong., 40 Stat. 1.) Thus, the Court had no occasion to reach the problem of drafting men in a technical time of peace, that is, a period not covered by declaration [88 S.Ct. 1837] of war. Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349. There the Court stated that the basis of congressional power to conscript had to be found in its Art. I, § 8, power to 'make rules for the government and regulation of the land and naval forces,' to 'raise and support armies,' and 'to declare war.' Id., at 377, 38 S.Ct., at 161.

None of the decisions prior to the Selective Draft Law Cases touches directly on the power to conscript in peacetime, and the reason would appear to be that prior to 1917 the Congress had not enacted a true conscription or draft provision. In 1794 and 1797 Congress enacted measures authorizing the President to require state governors to organize a militia. I Selective Service System, Backgrounds of Selective Service 59-60 (1947).) In 1814 President Madison by his Secretary of War James Monroe proposed a form of draft into the federal army which would raise some 80,000 recruits for two years' service. (6 Brant, James Madison 337 (1961); 2 Selective Service System, The Selective Service Act, Appendix A, at 143 (1954)). A bill along this line passed the Senate, 19 to 12, but was defeated in the House (6 Brant, at 349, 359-360),3 and the War of 1812 was completed with use of volunteers and the state militia.

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The Civil War provision, the Enrollment Act of 1863, 12 Stat. 731, was the first enactment resembling what can be called a 'draft' provision. 4 However, it created a 'draft' on paper only. Under [88 S.Ct. 1838] § 13 of the Enrollment Act enrollees could procure a substitute to avoid service

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or buy their way out for $300 or less. The result was that '[t]he poor hired themselves to serve for the well-to-do, as the law contemplated; then a flourishing traffic in substitution blossomed out; * * *.' (Backgrounds of Selective Service, supra, at 66.) The Act procured only 6% of the total manpower for the North in the war: 46,000 conscripts and 118,000 substitutes. See Randall & Gordon, The Civil War and Reconstruction 315 (2d ed. 1961); and see Brandon, Where the Action Was in 1863, The Progressive, April 1968, at 19, and McCague, The Second Rebellion (1968), discussing extensive riots ignited by the 1863 Conscription. Act.

The Act of 1863 was never directly attacked in this Court, and thus no opportunity to weigh the significance of the absence of a declaration of war (see the Prize Cases, 2 Black 635) arose. Many years later this Court twice suggested in dicta that the Act of 1863 was valid, but the absence of a declaration of war was not considered. 5 This dicta would have particularly little weight

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in view of the fact that what the 1863 Act created was not a true 'draft' as we understand that term today.

[88 S.Ct. 1839] Dicta in three post-Civil War cases indicated in a broad sense that the Court believed the Congress had power to enact a draft. Tarble's Case, 13 Wall. 397, 20 L.Ed. 597; Street v. United States, 133 U.S. 299, 10 S.Ct. 309, 33 L.Ed. 631; and In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636. But none of these cases factually concerned...

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