Vietnam War The Vietnam conflict triggered constitutional controversies that split the nation and confronted the Supreme Court with some of the most difficult issues that it faced between 1965 and 1975. The Court ducked the toughest of these questions: the constitutionality of the war itself. While declining to order an end to the fighting, however, it provided a surprising degree of protection to antiwar protestors. The Court also expanded significantly the number of men who could gain exemption from military service as conscientious objectors.
Although benefited by many of its decisions, opponents of the war were deeply disappointed in the Supreme Court because of its persistent refusal to rule that American military involvement was unlawful. Article I, section 8 of the Constitution provides that “Congress shall have Power … [t]o declare war”; but no congressional declaration preceded President Lyndon Johnson's commitment of half a million men to combat in Southeast Asia. Johnson and his successor, Richard
Nixon, insisted that the August 1964 Tonkin Gulf Resolution, in which Congress urged the commander in chief to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” and the many appropriations acts in which the legislature provided funds for the armed forces, gave them whatever congressional authorization they needed to conduct combat operations in Vietnam. Critics of their policies countered that because Congress had not declared war, they were behaving unconstitutionally. Some also accused the United States of waging a war of aggression in Vietnam and argued that anyone who participated in this conflict would be subject to punishment under principles established at the Nuremberg war crime trials.8
The Supreme Court evaded these issues. Beginning with the cases of
Mora v. McNamara (1967) and
Mitchell v. United States (1967), the Court persistently employed its discretionary authority to determine which cases it would hear to exclude from consideration all constitutional challenges to the war and all cases raising the Nuremberg defense. In
Massachusetts v. Laird (1970), it even spurned what amounted to a request from the Massachusetts legislature to decide the constitutionality of the war. Outraged by his colleagues' refusal to confront this issue, Justice William O.
Douglas (joined sometimes by Justices Potter
Stewart and John M. Harlan) took the unusual step of filing lengthy written dissents from his colleagues' denials of writs of
certiorari, but his protests did no good. The Supreme Court would not even allow a federal district judge to halt the bombing of Vietnam's neutral neighbor, Cambodia, which Nixon initiated without any authorization from Congress. Unwilling to precipitate a conflict with the Executive, the Court protected its institutional interests by leaving the question of the legality of the war to be resolved in the political arena.
But the Court did assist those struggling in that realm to bring American involvement in South‐east Asia to an end. In 1971 Daniel Ellsberg, a “think tank” employee who had formerly worked at the Pentagon, turned against the war. He set out to discredit it by handing over to several newspapers photocopies of a documentary history, prepared by the Defense Department itself, that revealed a number of embarrassing facts concerning the origins of the Vietnam conflict. The Justice Department immediately sought
injunctions, forbidding the press to publish what came to be known as the “Pentagon Papers.” The Supreme Court prevented the government from suppressing this official history by ruling in
New York Times Co. v. United States (1971) that the government had failed to meet the heavy burden necessary to justify
prior restraint. In a related case,
Gravel v. United States (1972), the Court held that the
Speech and Debate Clause protected a senator who read the purloined papers at a congressional committee hearing and an aide who had helped him prepare for this exposé.
While willing to safeguard those who made the Pentagon Papers public, the Supreme Court proved reluctant to shield dissidents from the military. In Laird v.
Tatum (1972), it affirmed a district judge's dismissal of a suit brought by antiwar activists, who alleged that army surveillance of civilian protesters was chilling the exercise of
First Amendment rights, announcing that the case raised issues that were not justiciable (see
Justiciability). The justices also joined the military legal system and lower civilian courts in withholding meaningful constitutional protection from members of the armed forces who wished to protest the war. In
Parker v. Levy (1974), it ruled that the army had violated neither the First Amendment nor the
Fifth when it convicted a dissident captain of conduct prejudicial to the discipline and good order of the service and conduct unbecoming an officer and a gentleman for urging enlisted men not to serve in Vietnam. The Court, however, was not totally insensitive to the interests of citizen‐soldiers. In
O'Callahan v. Parker (1969), it held that members of the armed forces, many of whom were conscripts or draft‐induced volunteers, could not be tried by courts martial for ordinary crimes that were not service connected (see
Military Justice;
Military Trials and Martial Law).
And while unwilling to undermine military discipline by sanctioning protest in the ranks, the Supreme Court did provide constitutional shelter to civilian critics of American involvement in Vietnam. Initially, the Court appeared to be no more protective of dissent than it had been during
World War I. In United States v. O'Brien (1968), the Warren Court held that a federal statute that criminalized one of the most popular means of expressing opposition to the war—draft card burning—did not violate the First Amendment.
O'Brien proved to be quite unrepresentative. Even before that highly controversial decision came down, the Warren Court had held in
Bond v. Floyd (1966) that the First Amendment precluded the Georgia legislature from denying an African‐American man the seat to which he had been elected because of his affiliation with an organization that had issued a statement condemning the war and endorsing draft resistance. After
O'Brien, Warren and his colleagues held in *
Tinker v. Des Moines School District (1969) that it was unconstitutional for a pubic school to expel students who wore black armbands to class to protest American involvement in Vietnam.
When Warren *Burger became
chief justice the Court continued to protect dissent. Although holding in
Lloyd Corp. v. Tanner (1972) that the management of a shopping mall might exclude demonstrators who wanted to hand out antiwar leaflets from its property without violating the First Amendment, in another case it ruled that the Constitution protected from punishment a man who wore a real military uniform in a protest skit. In
Flower v. United States (1972), the Burger Court took the position that the armed services could not exclude antiwar activists from bases or parts of bases that were otherwise open to the public. Such rulings reflected the mood of an American public growing increasingly disaffected with the Vietnam conflict. The Supreme Court joined the rest of the federal judiciary in using the First Amendment to protect agitation aimed at bringing an end to the fighting.
The Court also made it easier for young men who did not wish to participate in the war to gain exemption from military service as conscientious objectors. Section 6(j) of the Universal Military Training and Service Act exempted from combatant duty in the armed forces anyone who, by reason of religious training and belief, conscientiously opposed participation in war. The statute defined religious training and belief as “an individual's belief in relation to a Supreme Being. …” The defendants in United States v.
Seeger (1965) and
Welsh v. United States (1970) were both denied classification as conscientious objectors because they were agnostics. Although neither man appeared to meet the requirements of section 6(j), the Supreme Court held that both Welsh and Seeger were entitled to be classified as conscientious objectors. Apparently convinced that if the statute were read literally, it would have to be invalidated as a violation of the First Amendment's prohibition against the establishment of religion, the Court interpreted religious beliefs as including moral and philosophical tenets held with the strength of traditional religious convictions. While
Seeger and
Welsh blatantly distorted the intent of Congress, they did preserve the exemption for those to whom the legislature had wanted to give it. These rulings also increased the number of men who could avoid serving in an increasingly unpopular war. The Court refused, however, to allow those opposed only to fighting in Vietnam to claim conscientious objector status. In
Gillette v. United States (1971), it held that denying the exemption to those, such as Catholics, whose religious views precluded only participation in unjust military conflicts, did not violate the First Amendment's
Establishment Clause. The Court feared selective conscientious objection could not be administered fairly and might “corrode the spirit of public service and the values of willing performance of citizen's duties that are the very heart of free government” (p. 460).
Yet the war itself ate away at all those things. By using the First Amendment to prevent suppression of antiwar protest, the Court legitimated the expressions of disillusionment, anger, and alienation that eventually pressured the political branches into withdrawing from Southeast Asia.
See also
Conscientious Objection;
Speech and the Press;
War;
War Powers.
Bibliography
W. Taylor Reveley , War Powers of the President and Congress: Who Holds the Arrows and Olive Branch (1981).
Arthur Schlesinger, Jr. , The Imperial Presidency (1973).
Bob Woodward and and Scott Armstrong , The Brethren (1979).
Michal R. Belknap
