Monday, June 27, 2022

James L. Moses, "William O. Douglas and the Vietnam War: Civil Liberties, Presidential Authority, and the "Political Question" Presidential Studies Quarterly , Fall, 1996, Vol. 26, No. 4, Intricacies of U.S. Foreign Policy (Fall, 1996), pp. 1019-1033 
Douglas and Conscientious Objection 

...In addition to those who sought status as conscientious objectors because of their religious or moral objection to war in any form, there were many who saw the Vietnam War as a particularly immoral and unjust conflict. In 1970 Douglas tackled the prickly problem of "selective conscientious objection," or the refusal on religious or moral grounds of people to participate in certain wars or conflicts. Did there exist a right to refuse induction into "unjust" conflicts as opposed to "just" wars? In Gillette v. United States, the Court answered strongly in the negative, stating that "persons who object solely to participation in a particular war are not within the purview of the exempting section" of the draft statutes, even though the objection be "'religious' in character." Thurgood Marshall, for the eight to one majority, wrote that Congress intended to exempt from service only those who objected to "war in any form."

William O. Douglas, strongly disagreed as the lone dissenter. He saw the forced induction of "selective" objectors as violative of First Amendment free exercise guarantees. Though he conceded the question involved "freedom of conscience" more than religion, he argued "conscience and belief are the main ingredients of First Amendment rights." Douglas believed the religion clauses in the First Amendment were broader than "religion" in the conventional sense, and any narrower reading represented an "invidious discrimination in favor of religious persons and against others with like scruples." For Douglas, Marshall's majority opinion in Gillette struck a blow against the "right of conscience" implicit in the First Amendment and therefore represented an unconstitutional violation of Vietnam opponents' rights.

Justice Douglas himself had foreshadowed the arrival of the "selective conscientious objection" cases. The Supreme Court refused to hear arguments in the 1969 case Jones v. Lemond concerning an enlistee who, after five months in the service, claimed to have "acquired" CO status. As in hundreds of other instances, Douglas insisted that his dissent from the Court's denial o?certiorari be printed in the official record so that the public would be aware of his stance on the issues raised. He argued that a substantial issue had been raised in the case; that is, the First Amendment dimensions of conscientious objection "whether based on religion, philosophy, or one's view of a particular 'war' or armed conflict." It was precisely this "selective" component championed by Douglas in this earlier dissenting opinion that the Court as a whole again rejected in the 1970 cases....

Douglas and Cambodian "Incursion" 

In 1973, New York Representative Elizabeth Holtzman and several U.S. Air Force officers sought to halt the bombing of Cambodia, instituted by Richard Nixon in a effort to "clean out major enemy sanctuaries on the Cambodian-Vietnam border," on the grounds that the United States had not declared war against that country. They approached Justice Thurgood Marshall, who denied their petition to vacate the lower court stay on the bombing halt injunction. Marshall refused to act unilaterally, instead stating that this action "must follow the regular appellate procedures." Nonetheless, two days later, Holtzman asked Justice Douglas to vacate the lower court stay. Dressed in blue jeans and boots, Douglas met on the steps of his Goose Prairie, Washington, retreat with the ACLU attorneys seeking the order. Not at all hesitant to act unilaterally, Justice Douglas told them he would indeed hear them at the Yakima courthouse, some fifty miles south of Goose Prairie, the following morning. He said that he would issue a ruling, but "wanted to hear the other side of the case."

Dean Smith of the U.S. Attorney's Office and Burt Neuborne of the ACLU made their arguments to Douglas on August 4, 1973, at Yakima. Smith told Douglas that this was not a judicial but a political question, and that the August 15 bombing cutoff date already mandated by Congress represented a political compromise previously made on the issue. This avoided what he called a "constitutional confrontation." Douglas replied, "we live in a world of confrontations. That's what the whole system is about." Neuborne told Douglas that "the effect of the stay is to get judicial authority to continue to do something the judiciary said in the first place the President has no right to do." After hearing arguments, Justice Douglas stated that he would not let the question become moot, August 15 cutoff date or not. "I will make a ruling."

In perhaps his most extraordinary exertion of judicial activism, Douglas vacated the lower court's stay against a bombing halt, in effect personally ordering the United States government to cease its bombing of Cambodia. By approaching Douglas to vacate the stay, Holtzman had given the Justice a legal means finally to do what he had been unable thus far to accomplish: meaningfully intervene in American Vietnam policy and put an end to at least a portion of the war. Douglas's decision is also a classic example of Jerome Frank's definition, under the tenets of legal realism, of the judicial function as the expression of judgments "worked out backward from conclusions tentatively formulated." There could be little doubt, given Douglas's history on the Vietnam issue and his judicial temperament, that he would grant the petitioners' request. 

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