United States v. Sisson – Oral Argument – January 21, 1970

Media for United States v. Sisson

Audio Transcription for Oral Argument – January 20, 1970 in United States v. Sisson

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Warren E. Burger:

Mr. Flym, you may pick up where you left off.

John G. S. Flym:

Mr. Chief Justice, may it please the Court.

I think we left off suggesting that if there were no Bill of Rights at all, this Court would nonetheless be required by the constitution as adopted by the framers, by the state ratifying conventions as they understood the constitution would require this Court nonetheless to protect the individual rights of citizens –

Warren E. Burger:

You say as they understood it?

John G. S. Flym:

Yes, Your Honor.

Warren E. Burger:

Do you have a particular focus to put that on?

John G. S. Flym:

Yes, Your Honor, I do.

On page 98 through 99 of our brief -– I’m sorry, it’s page 100 through 101.

We quote from a statement made by the Rhode Island Ratifying Convention, which is virtually identical, I think there are very minor changes in language that is almost identical to the statements made by the North Carolina and Virginia Ratifying Conventions, I’m sorry.

And the statement states, that is that’s just a very small portion of the statement made by the Ratifying Convention.

The Ratifying Convention said –-

Hugo L. Black:

Made by who?

John G. S. Flym:

By the Ratifying Convention of the State of Rhode Island, Your Honor, almost identical to the statement made by the Ratifying Convention of the State of North Carolina, as well as the State of Virginia.

These statements expressly asserted that ratification of the constitution was based on an expressed understanding that it did not infringe unalienable rights of individual citizens.

The fourth paragraph, the fourth proposition stated in that ratifying statement is that religion or the duty which we owe to our creator in the manner of discharging it can be directed only by reason and conviction and not by force or violence.

And therefore, all men have an equal, natural and inalienable right to the free exercise of religion according to the dictates of conscience and that no particular religious sect or society ought to be favored or established by law in preference to others.

Hugo L. Black:

What page is it on your brief?

John G. S. Flym:

100 through 101, Your Honor, the bottom of 100 through the top of 101.

That statement is virtually identical to the statement made from the Ratifying Convention of the State of New York.

I accorded that at the end of the argument yesterday.

Potter Stewart:

When did Rhode Island get around to ratifying the constitution?

Pretty late in the game, wouldn’t it?

John G. S. Flym:

Very late, Your Honor.

Potter Stewart:

Why?

John G. S. Flym:

I’m not sure, but I think among the four states represented in these statements, it’s perfectly clear that there would have been no ratification of the constitution but for the expressed understanding that these rights were safeguarded.

That is, there was no need for the Bill of Rights to protect religion as understood by the persons who drafted and who ratified the constitution.

It’s true that a Bill of Rights were subsequently enacted but Madison explained, and that’s quoted at the bottom of 98 through top of 99, “Although I know whenever the great rights, the trial by jury, freedom of the press, of liberty of conscience come in question in that body, the invasion of them is resisted by able advocates.

Yet, their magna carta does not contain any one provision for the security of those rights respecting which the people of America are most alarmed.”

The freedom –-

Hugo L. Black:

Is that the only reference you have?

John G. S. Flym:

Well, I have –- these are just random –-

Hugo L. Black:

I mean to this?

I don’t see anything in here that necessarily leads to the conclusion that they thought a man could get out of going to the army constitutionally because of his religious belief?

John G. S. Flym:

Well, that’s a separate question, Your Honor.

It certainly is related and that’s why I mentioned it at this point, but I’m simply addressing myself now to the assertion made by the government that religion does not mean conscience.

And I think that’s clearly wrong from the standpoint of history.

I can understand the government’s inclination so to construe the protection of religion in the Bill of Rights.

I understand why they would like to limit it, but it’s just flatly inaccurate as a matter of history.

That’s just not what they understood 180 years ago.

What we’re calling for is not something which would destroy orderly government at all.

Obviously, what would be most destructive of orderly government would be if the constitution were ignored, and we want the constitution enforced.

That is, the constitution says certain things about what powers Congress have, and I will come very quickly to that central question.

That is, what power did Congress receive through the constitution to draft individuals, whether in peace or in order.

That’s the central issue.

Obviously, if the constitution did not delegate this power to Congress, Congress doesn’t have it.

Even if Congress would like to have it, even if Congress thinks that it is absolutely indispensable in its judgment to have that power, if that power was not conferred by the constitution, it’s perfectly plain they don’t have the power.

The constitution sets the limits of the power that were in fact conferred to Congress.

Now, I’m simply –-

Hugo L. Black:

So it’s your idea that anything –- anytime a man believes its wrong to go to war, it couldn’t be conscripted that was almost necessary to do away with conscription, wouldn’t it?

John G. S. Flym:

That is not our proposition, Your Honor.

That is –- I think there’s a very important distinction between a man who acts on the basis of conscience that is who simply can’t obey the order.

That’s on that system.

And a man who thinks, well, it’d be a bad policy to follow, to go fight a war in Vietnam —

Hugo L. Black:

But they were allowed to distinguish between the two, wouldn’t it, when you begin to probe the line?

John G. S. Flym:

Yes, Your Honor, but that’s a very customary function in law, that is we’re constantly –- the Courts, that is –- are constantly about the business of establishing where the man intended to do something around it, but just don’t know how to avoid that.

But –-

Warren E. Burger:

Well counsel, this familiar history is very interesting but let’s bring it down to the particular case, and if I may put to you again the question I suggested yesterday, would his rights of conscience be violated if in fact he were taken in and assigned as a security guard at the American Embassy in Paris for the entire tour of his duty?

Would his rights of conscience be invaded?

John G. S. Flym:

I think so, Your Honor.

But is –-

Warren E. Burger:

I thought his objection was to the particular war being conducted in Vietnam?

John G. S. Flym:

Well, in a sense, that’s true, but –-

Warren E. Burger:

Well, is it all military service or just the war in Vietnam, I wanted it that clear?

John G. S. Flym:

Well, that’s the military service.

That is, he disobeyed an order.

He disobeyed that order on the basis of his conviction that the order was invalid.

Now at this point, I really don’t think that the question is whether his subjective belief was well founded.

At least the threshold question is whether from an objective point of view, he was right, whether the order was valid.

Did Congress in fact have the power to issue the order to this man that he report for induction because if Congress had no such power, simply to induct him into the army, then refusal to obey the order simply is not a criminal act.

And that’s independent of what he may have believed to doubt the Vietnam war or may not have believed.

Warren E. Burger:

Well, I have difficulty reconciling the points as you state them now and his own declaration which if I understood this record were all aimed at military activity in Vietnam.

Did I misread the record?

John G. S. Flym:

I think so, Your Honor.

I respectfully suggest that from the outset, the motion is filed, the pre-trial motion is filed in this case squarely raised and the government has so recognized –- squarely raised that the initial question raised by the appellee was simply the power of Congress to issue that order to him, and he said no, Congress does not have that power.

That is, if he had said nothing about his beliefs.

Warren E. Burger:

So I’m making a distinction between what he said and what you were saying, and I here at least see a difference?

John G. S. Flym:

Well, I think, Your Honor.

If I understand Your Honor’s question that there’s on the issues which were properly raised one issue, very definitely is the issue which the District Judge in fact based his decision upon.

That is, the right of Johny Sisson to exercise freely his religion under the First Amendment.

Or alternatively, the question, the issue whether the Selective Service Act of 1967 constitutes an establishment of religion.

But that — those were just two of the issues raised.

We repeatedly reasserted and reasserted again in the motion in the rest of judgment.

The threshold question obviously has to be whether the order issued to Johny Sisson was invalid.

It might have been invalid for a number of technical reasons.

Now, those technical reasons –- technical deficiencies in the order did not appear at the trial.

If such deficiencies had appeared in fact, the case would not be here, certainly not on direct appeal.

That is, the only questions presently being raised are questions bearing on the validity, constitutionality of that order.

And the point we repeatedly stressed is that Congress just does not have power to conscript Sisson now.

Potter Stewart:

That is because –- well, for a variety of reasons, to what reason in your submission though –- what particular reason are you submitting to us, I’m not very clear of that?

John G. S. Flym:

The particular reason, Your Honor, is that Congress is powered to raise and support arguments, which is the clause on which the government relies squarely, does not extend –- it is not an unlimited power.

Potter Stewart:

Well, alright, but then what -– and is limited in what respect where there’s a vis-à-vis this case?

John G. S. Flym:

It is limited first of all to circumstances where an emergency exists.

I know that that’s somewhat vague, but I think by looking at the historical interpretation of Congress’ power, we can derive very definite meaning as to what the framers of the constitution understood, what members of the first Congress understood by the power to raise and support arguments.

Now –-

Potter Stewart:

Well, are you saying –- I know that perhaps –- I know in your brief, you say a variety of things but now, are you directing yourself to the argument that Congress has no constitutional power to enact a Selective Service Act when there is no declared war?

Or are you saying it has no power to conscript people into the military when there is a situation going on, that is going on at Southeast Asia that violates international law?

What are you -– to what point are you arguing now is what I don’t quite get.

John G. S. Flym:

I think the most solid point we have is the point that Congress has no power to draft in an emergency, which usually will mean the same thing as no power to draft absent to declaration of war.

But the reason I think I don’t –- we do not assert that in that form, that is that Congress can’t conscript unless there’s been a declaration of war, is that we concede that in a number of the emergencies, even if there were no declaration of war, Congress would have the power to conscript because I just don’t believe that Congress is powerless to defend this country.

This country must have the power to survive.

Potter Stewart:

Well, then you’re saying that there’s no power to — a constitutional power to conscript when there is no imminent danger of invasion of this country?

John G. S. Flym:

Well, I’m not saying that either, Your Honor, but I am –-

Potter Stewart:

I really don’t understand your argument.

I gather though, the arguments you’re making now has nothing to do with Sisson as such.

John G. S. Flym:

That’s right.

Potter Stewart:

This could be John Smith, who’s a religious or irreligious person who has no particular ideas about Vietnam.

You’re talking about General Congressional Power?

John G. S. Flym:

Yes.

One example of an emergency, Your Honor, would be the Civil War.

That is Civil War was not a declared war.

It was an insurrection and indeed, Congress did adopt the Conscription Act.

We’re not challenging the power of Congress to –-

Potter Stewart:

What are you challenging?

John G. S. Flym:

We’re saying that this war in the present circumstances just doesn’t amount to the kind of emergency that must have been contemplated by the draftsmen of the constitution.

That is –-

Hugo L. Black:

They do not have a right to conscript in time of peace?

John G. S. Flym:

Yes, Your Honor.

Certainly, the –-

Hugo L. Black:

Is that the argument you’re making?

John G. S. Flym:

Yes, Your Honor.

John G. S. Flym:

Time of peace again is somewhat misleading because that may be thought to mean the absence of a declaration of war.

But I think what is at issue is the existence of an emergency that it makes it very, very clear that Congress has no choice, that it must conscript because if it doesn’t conscript for a National Security is in a very mediate sense at stake.

I don’t think there’s much ambiguity about what the power of Congress is meant for the first 150 years of the existence of this country.

That is, peace time conscription as we know it is very, very recent in time, just –- it didn’t take years.

Potter Stewart:

You deny the power –- you say power –- the Congress has no constitutional power to conscript from like universal military training?

John G. S. Flym:

Oh definitely, Your Honor.

But –-

Potter Stewart:

Definitely yes or definitely no?

John G. S. Flym:

Definitely not, no.

I just don’t think they have that power.

That is, if that had been even remotely suggested at the time that the constitution was ratified, absolutely no question but that that the constitution would not have been ratified.

Thurgood Marshall:

Mr. Flym, can you help me with my problem of getting conscience and legality together?

John G. S. Flym:

I’ll try, Your Honor.

There are several steps to our argument.

We begin with a broader story argument and with a relatively narrow argument based on Johnny Sisson.

First argument is whether Congress has the power to draft anybody at this time.

Thurgood Marshall:

So use of equip–- put in the same bowl the fact that I disagree with the legality of an act of Congress with my conscience –-

John G. S. Flym:

No, or –- no.

That has been suggested two or three times.

I hope I can make it very clear that that’s not what we mean at all.

That is, if Congress has the power to draft people in general, then the argument which we are now making is not relevant at all.

It would remain a subsequent, a different question.

That is, assuming that Congress has the power to draft the generality of men at this time, are they nonetheless restricted by the individual right of conscience, the right to free exercise of religion, so that they can’t conscript certain classes of men.

Thurgood Marshall:

But because I disagree, my conscience tells me I can abide by that law?

John G. S. Flym:

Oh no, I don’t think that that follows at all.

You might disagree on political grounds, on economic grounds, sociological grounds.

Thurgood Marshall:

Why so — I have a great problem with conscience and politics.

John G. S. Flym:

Well, all I can say, Your Honor, is again, I’d like to quote Madison and –- well, it was about the time of the –- he was at that time –-

Thurgood Marshall:

But you have already agreed that that argument can be made by anybody of the insisting?

John G. S. Flym:

Your Honor -–

Thurgood Marshall:

I have to insist?

John G. S. Flym:

Your Honor, it is a difficult problem.

The judicial system is full of very, very difficult problems.

Probably no more important questions arise and when the individual’s rights are pitted against the government’s power and —

Thurgood Marshall:

Well, I agree.

John G. S. Flym:

— it is this Court, which is –-

Thurgood Marshall:

It’s a difficult problem that tells me how being on duty in the embassy in Paris is aide in the Vietnam war, I have great difficulty with that.

John G. S. Flym:

That is not the question at this point, Your Honor.

If you would please –- the question is not where he would be assigned right now.

The question of the power of the Congress to —

Thurgood Marshall:

Of course that he doesn’t want to serve at any place in the military?

John G. S. Flym:

Whether he wants to or not -–

Thurgood Marshall:

Is that right?

John G. S. Flym:

— whether he wants to or not is not the issue, not the issue.

He might want to, and nonetheless his refusal might be justified if there was no power to issue that order.

The threshold question is whether –-

Thurgood Marshall:

They couldn’t –- do you say that the Congress does not have the right to say that this man shall be put in the army and assigned to his hometown?

John G. S. Flym:

That’s exactly what we say, not just –-

Thurgood Marshall:

Then he objects military service?

John G. S. Flym:

No, no, I’m sorry, Your Honor.

Thurgood Marshall:

Well, I don’t understand how the point got involved in this case.

It’s elicit there and everybody I thought understood that this was a case of selective choosing of not fighting in the Vietnam war?

John G. S. Flym:

Your Honor, It got into this case because we raised it and we stressed it at every point.

This is not a new point on appeal at all.

And this elicit –-

Potter Stewart:

Insofar, you haven’t come to the issues discussed by the Solicitor General.

You’re so far making a much broader argument as I understand it.

You haven’t come to Mr. Sisson yet?

John G. S. Flym:

Yes, that is —

Potter Stewart:

You are telling us that Congress has no constitutional power to compel military service, at least in the absence of a declared war or a “national emergency” whatever that might be, and you say there is not now a national emergency, is that correct?

John G. S. Flym:

That’s correct, that’s correct.

Potter Stewart:

You haven’t come to Mr. Sisson, that his conscience or lack of it, is that correct?

John G. S. Flym:

That’s correct, Your Honor.

Byron R. White:

And you’re seeking to sustain that justice below on another ground?

John G. S. Flym:

Well, I think this Court is charged –-

Byron R. White:

Well, —

John G. S. Flym:

— yes.

Byron R. White:

I’m not -–

John G. S. Flym:

Yes.

Byron R. White:

— that’s accurately what you’re doing?

John G. S. Flym:

Yes, Your Honor, it is.

That is, there are a number of grounds which we assert.

But I would, simply as the last comment to Mr. Justice Marshall’s remark with respect to the difficulty of ascertaining, the meaning of conscience indicate that the draftsmen of the constitution had no problem with that.

That is, I quote from Madison, “The freedom of the press and rights of conscience, those choices, privileges of the people are unguarded in the British Constitution”.

He had no question, but that if there were no Bill of Rights, a man’s right of conscience would nonetheless be protected.

He didn’t need a Bill of Rights.

As a matter of fact, precisely the argument which the government now makes was the argument feared back then.

That if you provided a Bill of Rights then, somebody would say, “Well, that’s all you have.”

Nothing else is protected, but the Ninth –-

Thurgood Marshall:

In your grievance, did you allege the violation of the Bill of Rights?

Sure you did, didn’t you?

John G. S. Flym:

I missed that, I’m sorry Your Honor.

Thurgood Marshall:

Wasn’t the basis of your complaint that to adopt this man would violate his rights protected by the Bill of Right.

John G. S. Flym:

Yes, Your Honor.

Thurgood Marshall:

And now you’re abandoning the Bill of Rights?

John G. S. Flym:

No, we are not.

We made several arguments and we maintain them all.

That is, generally speaking, there are two arguments and the first argument is what power does Congress have under the clause which empowers it to raise and support armies, independently of the First Amendment.

The second argument is whether that power is in some specifically –- a specific way limited by the first amendment.

I am not addressing myself solely to the first question, forgetting about the Bill of Rights altogether, what power did the constitution confer upon Congress to raise and support armies?

John G. S. Flym:

I do suggest respectfully that the history of the ratification of the constitution, of the dates at the constitutional convention simply do not blame themselves to any interpretation which would suggest that back then, it was thought that the federal government -– Congress could simply reach out and pluck people out for universal military service.

That —

Warren E. Burger:

Do you say we must read the Article 1 as meaning that the Congress has the power to raise and support armies in time of war but it’s limited to that?

John G. S. Flym:

In time of national emergency, Your Honor.

Warren E. Burger:

In time of national emergency.

Who’s going to define the national emergency?

John G. S. Flym:

Well certainly, the Congress.

Warren E. Burger:

Congress?

John G. S. Flym:

But Congress defines it for legislative purposes.

Warren E. Burger:

Well, what if the individual person being inducted did not agree that it was a national emergency?

Could be escape service on the grounds of conscience?

John G. S. Flym:

Oh no, no.

If all he asserted, that’s a perfect example to distinguish the two arguments.

That is if –- as a matter of fact, that precise -– that sort of -– that sort of argument has a parallel with what happened during the war of 1812.

That is, the president issued quotas the governors of various states, and the war was thought to be an unconstitutional war by many governors, particularly in New England.

They simply refused to obey that order.

And so we’re not going to supply you militia.

Now, furthermore, some of the militia –-

Thurgood Marshall:

Who was president then?

John G. S. Flym:

The president at that time, Your Honor, was Madison.

Thurgood Marshall:

It was Madison?

John G. S. Flym:

Yes, Your Honor.

Thurgood Marshall:

The man whom you quoted a while ago?

John G. S. Flym:

Yes, Your Honor.

The man who acted not under the power to raise and support armies, but rather under the militia clauses of Article 12 –- of Article 1, that is, the constitution provides a very, very plain scheme, provides for standing armies.

Those were very, very, very much feared.

In addition to standing armies for instance, the garrison, the frontier posts against the possibility of hostilities with the invasions.

The constitution says well, if you have an insurrection or if you have an invasion, or if you have a problem with executing the laws, you can call out the state militias.

The calling of the state militias meant something very specific.

It meant you could only call them for three months, in any one year.

John G. S. Flym:

You could only call them in rotation so that if you called them in once, you couldn’t call them again until every other able bodied man, and his battalion had been called.

Furthermore, you didn’t call them for a specific length of time.

You just called them out for that particular purpose.

If you had a problem with the unions in one location, you call out the militia and they dealt with the unions there and then they went back home to their jobs, farmers, various other jobs which they are in.

That was the scheme which the constitution provided.

That is that’s the way in which Congress was to deal with problems of national defense.

We are conceding that in addition to what is clearly provided, in a clear case of national emergency where the national survival is at stake, it’s perfectly clear that Congress must have the power to mobilize every resource.

And certainly, that was contemplated, it is not denied.

In the constitution therefore, we don’t deny that it must exist by inference.

But when we read the historical record without which that was simply cannot be read, that is you just can’t raise and support armies literally unless you understand what they meant by a raise and support armies.

Now, we deal with the historical argument at length in our brief.

I think we demonstrate very clearly that the power to conscript was feared.

It was not even used in the revolutionary war except in very limited circumstances.

At the height –- at the height of the idealism which motivated the men who were fighting for their freedom of this country.

Warren E. Burger:

If Congress enacted a resolution declaring the situation in Vietnam, a national emergency, would you -– would you then dismiss your appeal?

John G. S. Flym:

We would have a very, very different case, Your Honor, but that is precisely what we have in mind.

That is, the declaration of war is –-

Warren E. Burger:

I did not say a declaration of war.

John G. S. Flym:

I understand that, Your Honor, but that would be one very clear example of a declaration of a national emergency.

It’s one thing to say we really need to do this.

It’s quite another matter to enact the statute which is designed not simply to meet with national emergencies but to deal with peace time conditions and to apply it in peace time rather than limiting its application to war time conditions, or national emergency conditions.

But it just –- it just was beyond anything that any of advancement or any of the people at the time that the constitution was adopted that this federal government, this body of people could simply reach out and conscript people.

If they can do it now, why couldn’t they have done it back then?

Why couldn’t they simply conscript one million men?

We’re going to have a standing army of one million men.

Furthermore, we’re going to induct them, we’re going to conscript them for ten years because we think we ought to have a very strong army.

Yet it just is inconceivable that that power was granted.

It just was not granted.

Hugo L. Black:

Is your central argument against the standing army on the constitutional ground?

John G. S. Flym:

Not against the standing army, Your Honor.

John G. S. Flym:

The standing army composed of volunteers is precisely –-

Hugo L. Black:

I know, but again the conscripting?

John G. S. Flym:

Yes, absolutely, Your Honor.

Hugo L. Black:

A standing army?

John G. S. Flym:

Of conscripts, yes, Your Honor.

During the first 150 years of the history of this country, that’s precisely what Congress did continuously.

It resorted to volunteers, not for various reasons of social policy.

Congress has decided.

Well, we don’t like that scheme.

That is, if what –-

Hugo L. Black:

What you are challenging as I understand is in the Court’s hand, you first told me that there could be a conscript and I may — could be used into time of peace was rather than war?

John G. S. Flym:

That’s correct, Your Honor, that’s correct.

We concede there is power to conscript when you have a genuine national emergency.

There just was no power to which was conferred.

To raise a standing army –-

Hugo L. Black:

To determine whether there was a national emergency?

John G. S. Flym:

Yes, Your Honor.

You can determine it in many, many ways.

Hugo L. Black:

But who would decide it finally?

John G. S. Flym:

The final arbitrar with respect to the limits of power which Congress has.

Hugo L. Black:

Who would decide it?

John G. S. Flym:

Always this Court, that is.

I don’t think it’s –-

Hugo L. Black:

This Court?

John G. S. Flym:

I think ultimately, this Court must decide any argument that Congress has exceeded the limits of its power.

But certainly, action taken by congress, unequivocal action declaring the existence of an emergency would be very persuasive, not necessarily conclusive but I think we –- we would have very, very little hope of prevailing if Congress had said well, we’ve got a national emergency and we absolutely need to conscript men.

But we don’t have that situation at all.

For the last six years, there’ve been studies upon studies as to whether volunteer army was feasible, clearly testified time and time again both by government persons who opposed a no-volunteer army as well as by men who preferred the volunteer army that it is feasible.

I mean, manpower is available.

It just costs money.

John G. S. Flym:

But that’s the way in which a standing army has been raised for 150 years.

And it was never suggested that Congress could simply say, “Well, we don’t think we ought to be spending money this way.

We’re not going to do it.

We’ll save the little money.

Furthermore, we think it’s democratic.

We don’t a mercenary army.”

Maybe Congress does think that there are valid reasons for conscripting men instead of simply having volunteers to mend this standing army in peace time.

But that doesn’t change the power that Congress -– that was delegated to Congress at the time the constitution was adopted.

Thurgood Marshall:

Did England have a standing army at the time this country was colonized?

John G. S. Flym:

Standing armies were recognized, Your Honor, but never of conscripts.

Conscription for a standing army as a historical fact did not even occur until after the constitution –-

Thurgood Marshall:

Did they have a standing army or did they have an army which was called in the service year to year or two years –- two years?

John G. S. Flym:

Well, I think it was of limited duration.

That is, my recollection is that the standing army in England was –- well, for a limited period of time.

I don’t remember exactly, Your Honor.

Thurgood Marshall:

With what?

John G. S. Flym:

I don’t remember exactly, but it was for a limited period of time.

Thurgood Marshall:

That’s right.

John G. S. Flym:

But it was -– it was not composed of conscripts.

It was volunteers entirely, except -– except for beggars.

That is, beggars could be impressed but that was as a form of punishment.

Hugo L. Black:

Well, might that have been the reason they put in to the constitution or Congress to raise armies?

John G. S. Flym:

No, I think Your Honor, the historical record is clear that the power to raise and support armies is included because a standing army as feared as it was, and it was very, very much feared because the fear was that Congress would use the standing army to eliminate the power of the states and to oppress the individual citizens in the states.

Hugo L. Black:

In favor to a militia?

John G. S. Flym:

Oh absolutely!

There are at least five separate preferences to militia.

That is, you have at least three clauses in Article 1 which deal expressly with militia.

And again, militia were to be called and specified circumstance only while the emergency lasted.

In the Second Amendment for instance, the Second Amendment provides that individual citizens had the right to keep and bear arms because you need a strong militia so that the state can defend itself.

The argument that a standing army was all right was based repeatedly on the argument that Congress could never amass a standing army of such power that it could overcome the power of the states because they had the militia and the militia were very, very numerous.

Hugo L. Black:

As I recall it or my memory maybe entirely wrong.

Those who insisted on having nothing but a militia, state militia, were defeated in the constitutional convention and it was provided that the Congress agrees on?

John G. S. Flym:

That’s absolutely correct, Your Honor, but it’s important to bear in mind that the concept of a standing army was agreed to in a very, very limited way that is precisely the opposition which you are noted, that people will say, “Well, you don’t need a standing army, we’ve got our state militia.”

The argument was well, are you going to take farmers and post them on garrison posts on the frontiers to combat the unions?

We need an army, a standing army.

Now, what did that mean?

The very first Congress enacted a bill.

I had as a matter of fact, starting by 1789, 1790, 1791, 1792, 1793, 1794, 1795, there are separate bills, numerous, dealing with the army, the standing army, as well as with militia but in quite separate ways.

And the standing army that was provided consisted of I think 1,200 men, meant to deal very expressly with the problem of the frontiers.

Warren E. Burger:

May I remind you, Mr. Flym, you are now using your rebuttal time.

John G. S. Flym:

I’m sorry, Your Honor, I have no rebuttal.

I think –-

Warren E. Burger:

Excuse me, as I’ve forgotten on our start-– you started to do -– you were on yesterday, yes, yes, excuse me.

Already have.

John G. S. Flym:

Forgive me, Your Honor.

In any event, I really don’t think I should spend more time on this argument.

I would like to mention another separate argument.

That is, I simply mentioned that in passing.

That is that if a non-volunteer army is feasible, Congress just can’t pick and choose ways of raising men and say, “Well, we’re not going to spend the money so that we’ll have this money available for the project.”

That is, if they can raise volunteers, they’re required to raise volunteers for the standing army.

That was the original concept.

As a matter of fact, the concept -– the word “raise armies” is used repeatedly by the first congress, by the early Congresses, and they specified that they mean volunteers and the deal with militia entirely separately.

As a matter of fact in one case, they increased the size of the authorized army I think to 5,000 men, and they said, “But we want to make it clear that as soon as the emergency is over, that army is to be disbanded.

We don’t want it around.

We want that number reduced to 1,500.”

And so now, I won’t even touch on the argument that the power of Congress is further limited so that it can’t raise an army for an illegal war.

Now, that’s dealt within our brief.

I think it’s much too complex to even begin at this point.

I would, if I may, like to turn for the remaining time to the solicitor’s argument with respect to the establishment issue, as well as the free exercise issue.

Incidentally, Mr. Justice Marshall, I checked in to various authorities on the question bearing on whether we have an rest of judgment decision more in a -– well, another authority, I’m very bad on issues, right, it simply don’t communicate if there’s anything to be done after you grant the motion of rest of judgment, you grant it and that’s it.

John G. S. Flym:

And I checked the records in this Court in the cases of Bramblett as well as the case of Green, they are cited at page 15 of our brief, and I looked at the order entered by the lower courts in those cases and that’s all they say, motion to rest of judgment granted.

I found no indication that there’s anything else which anyone else thought needed to be done.

On the establishment question simply indicate that on the basis of the Solicitor General’s argument, it’s perfectly clear that the act tends to establish pacifist religions.

That’s what the Act has intended -– well, it isn’t intended to establish them but it is intended to protect members of pacifist religions.

Now, the Solicitor General says, “That’s alright, that’s alright because religion doesn’t mean what we say it means within the First Amendment,” and that’s because the First Amendment somehow can’t be used in this way to limit the power of Congress to raise and support armies.

I think that -– that logically it falls from everything I’ve said up to now, that that just isn’t true.

Historically, that is completely inaccurate.

Now, on the free exercise of religion argument, there’s an important misconception that must be dealt with.

We’re not dealing here with a non-religious objector, I mentioned that yesterday.

This man is a non-religious in the statutory sense, conscientious objector.

Now, the question is whether he’s –-

Potter Stewart:

But he’s a non -– non-religious, conscientious, selective objector?

John G. S. Flym:

Yes, Your Honor.

Potter Stewart:

Thank you very much.

John G. S. Flym:

Selective objector.

Now, that’s correct Your Honor.

Now, the question is not whether he can pick and choose his war but whether religions, including established religions, recognize the concept of just war.

I don’t think there’s any question about the fact that today at least, Protestant, Catholic, Jewish organizations, the Vatican Council, all have made it perfectly plain that they think that there are differences between wars.

Some wars are okay and some aren’t.

That is, as religious organizations, it just doesn’t seem to me that the argument can be made that if a man objects to a particular war, he necessarily has a “political” objection as opposed to a religious objection.

That just doesn’t square with the facts.

Again, I think that whether you reach this conclusion or not depends on your concept of the power of Congress to raise and support armies.

If you conceive of it as being completely uncontrollable, then it might make sense to apply much more restrictive notion of what is meant by religion in the First Amendment insofar as it relates to the power of Congress to raise and support armies.

But I just don’t think there’s any support, any historical support with the view that Congress in 1789 could simply reach out and say, “I’m going to take you.

I know its peace time.

I know we don’t have any wars, but we’ve got -– we’ve got to have a strong army.” Just absolutely no support for that view.

If there are no questions, I’ll submit.

Warren E. Burger:

Thank you, Mr. Flym.

John G. S. Flym:

Thank you, Your Honor.

Warren E. Burger:

Mr. Solicitor General?

Erwin N. Griswold:

May it please the Court.

First, with respect to the jurisdictional question, Mr. Justice Harlan asked me yesterday about a statute which has been opposed in Congress.

It is referred to in a footnote on pages 15 and particularly on page 16 of our brief where there is a reference to the congressional record.

I have obtained a Xerox copy of that page with the congressional record and also a copy of the bill, and I will lodge it with the clerk if that is helpful to the Court.

The proposed statute is simple and I think clear.

It provides –- it would supersede the first seven paragraphs of the present Section 3731 and would substitute “In a criminal case, an appeal by the United States shall lie to a Court of Appeals from a judgment or order of a District Court dismissing an indictment or information, or terminating a prosecution in favor of a defendant as to any one or more counts, except that no appeal shall lie from a judgment of acquittal, provided however that when the judgment or order is based solely on a determination of the invalidity of an Act of congress, the appeal shall lie directly to the Supreme Court.”

The direct appeal would only be in the case of the invalidity and not the construction –-

John M. Harlan II:

Would you have any questions, Mr. Solicitor General, about this -– the ability of this Court, the power of this Court to transfer to a Court of Appeals in this case?

Erwin N. Griswold:

There would be no such provision under this –- yes, I suspect there would be.

The provision for transfer would still –-

John M. Harlan II:

Do you think be applicable to this type?

Erwin N. Griswold:

Would still stay in because this simply is a substitute for the first seven paragraphs and the transfer provisions are in the subsequent paragraphs –-

John M. Harlan II:

Under existing law, we could view that?

Erwin N. Griswold:

So that if this Court concluded that no question of the constitutionality of a statute was involved, it could transfer it to a Court of Appeals.

Now in addition —

John M. Harlan II:

With the present bill, Mr. Solicitor General, or the present statute of the –-

Erwin N. Griswold:

The present statute provides for transfer both ways, from the Court of Appeals to the -– and we have recently filed a motion for a transfer of a case from this stage to a Court of Appeals, which I regretted having to file, but we find it very baffling to tell in some cases where the appeal should lie.

I may say that I have in addition prepared Xerox copies of all of the pages of the congressional record back in 1909 where the Criminal Appeals Act was discussed, and I will lodge that, too, with the Court because it might be convenient in examining that.

I will lodge that with the clerk because it might be convenient in examining the matter.

Warren E. Burger:

Mr. Solicitor, go back to that statute for a moment.

As you read it, as you see it, the direct appeal to this Court did not foreclose the application of the transfer statute and therefore, the direct appeal is I take it simply to provide expedition in a proper case where important interests were involved.

Is that it?

Erwin N. Griswold:

Well, where the constitutionality of the Act of Congress is involved, that’s the only question.

Warren E. Burger:

But to –- I am speaking -– addressing myself just to the reasons, the congressional reasons that you see for the direct appeal was because I am would be –- it might well be of the essence in those cases?

Erwin N. Griswold:

Because the department felt and it has been the practice of Congress elsewhere that when an Act of Congress is held unconstitutional, that is an important question which ought to come to this Court.

Warren E. Burger:

But it might not always involve a great issue of time necessarily, would it?

Erwin N. Griswold:

It might not be essentially a great issue, but holding an Act of Congress unconstitutional is a great issue.

Warren E. Burger:

Without regard to the time factors involved?

Erwin N. Griswold:

Without regard to the time factors involved, I believe.

Byron R. White:

Can I ask you, Mr. Solicitor General, suppose a trial judge makes some findings of fact as a basis for his arrest or his order arresting judgment, facts which were stipulated to or anything else.

Byron R. White:

And suppose that the –- these weren’t evident on the face of the indictment and so on and that this couldn’t properly be called an arrest of judgment, what happens then in terms of appeal?

I suppose it wouldn’t and I assume it isn’t the plea in bar or it isn’t –-

Erwin N. Griswold:

If it —

Byron R. White:

It certainly wouldn’t be just a motion –- just a dismissal of the indictment since he’s made factual findings.

Erwin N. Griswold:

If it can’t be called a motion in arrest of judgment, then the only basis for appeal would be to call it a motion in bar where the statutes expressly says when the defendant has not been put in jeopardy, whether it would or would not be a motion of bar is a point upon which members of the Court have been in disagreement.

Byron R. White:

Your position is that he has been placed in jeopardy in this case?

Erwin N. Griswold:

Our position is that he has been placed in jeopardy.

Byron R. White:

So you wouldn’t think an appeal would lie into that sense?

Erwin N. Griswold:

No, so you would then have to come under from a decision or judgment setting aside or dismissing any indictment or information, or any count thereof, where it is based on the invalidity or construction of the statute.

Byron R. White:

Under that -– does the same sort of fact finding vitiate an appeal under that provision like it does in the arrest of judgment?

Erwin N. Griswold:

Mr. Justice, rightly or wrongly, we don’t get to that because we construe that in the light of the legislative history as also involving the question whether the defendant has been put in jeopardy.

And if the defendant has been put in jeopardy, we not only so construe it but there’s a long practice within the Department of Justice at least accepted by this Court to the same effect.

Now, if your findings of fact were held, were made before the empanelling of the jury, for example, if the Court said, “I am greatly troubled by the validity of the statute in this case, but I’m not sure about the facts and can we have a factual hearing which will have evidence,” and he then finds facts from which he concludes that the statute is unconstitutional, no jury ever having been in panel, then I would suppose that the first clause would apply.

Byron R. White:

But if it –- but if we disagreed with the government here and said that there were fact finding and there was a species of fact finding here in this case which removed it from the arrest of judgment category, then there just wouldn’t be an appeal anywhere?

Erwin N. Griswold:

Then we are unable to find a basis for jurisdiction of this Court on appeal.

If this Court can find it, we would of course accept –-

Potter Stewart:

Well, if we could not, could it be transferred to the Court of Appeals?

Erwin N. Griswold:

I think not, Mr. Justice.

Potter Stewart:

In other words, there’s no appeal anywhere?

Erwin N. Griswold:

There would be no appeal anywhere.

Potter Stewart:

Well, what do you think the case should — should happen to the case and that’s the presumption?

Erwin N. Griswold:

If the Court concludes that it has no jurisdiction, the sole basis of the appeal being with respect to the Court’s construction and determination of the constitutionality of the Act of Congress, then I think the Court should dismiss the appeal.

Potter Stewart:

What posture does that leaves the —

Erwin N. Griswold:

That leaves the decision in arrest of judgment outstanding, and that means that while that is outstanding and no one can, neither this Court nor the Court of Appeals can upset it, that it would not be possible to proceed further on the verdict of the jury.

Potter Stewart:

Would it be possible to vacate the proceeding below, send them back to the District Court and they can do what they think should be done by way of appellate jurisdiction —

Erwin N. Griswold:

Mr. Justice, with respect, I think not.

If this Court has no jurisdiction, it has no jurisdiction.

Warren E. Burger:

Then you would be carving out, Mr. Solicitor General.

You would not be, but the consequence of your position would be that there would be carved out a final decision of a District Judge holding an Act of Congress unconstitutional which is un-reviewable by anyone?

Erwin N. Griswold:

Mr. Justice — Mr. Chief Justice, that was what the law undoubtedly was in all respects until 1909 and all that we can say is that Congress in its great care with respect to the double jeopardy simply has not yet made available an appeal in that case.

Erwin N. Griswold:

We are trying to persuade the Congress to take care of the problem and I hope we can.

Warren E. Burger:

I suppose, Mr. Solicitor General however if this Court and some other case, unrelated case or some other case should express its views, and if those views were inconsistent with the views reached by Judge Wyzanski in this case, there would be nothing to prevent the government from going to the District Court and asking -– making a motion for the modification for the arrest of judgment, would there?

Erwin N. Griswold:

Well, that’s -– we’ll keep in mind, Mr. Justice.

I don’t –- I don’t -– whether that would be good policy or not, I don’t know.

Potter Stewart:

Well, would you Mr. Solicitor, would you be up against at least the problem whether even that would constitute a violation of double jeopardy?

Erwin N. Griswold:

There of course would be a problem but offhand, it seems to me it is answerable.

For example, suppose there had been a petition for rehearing filed in -– before Judge Wyzanski the next day, one reason I’m hesitant is I’m not familiar with what the rule provisions are as to the time and there might come a time when it would be said that that was final and amounted to an acquittal.

It was not informed an acquittal.

Potter Stewart:

Would you — we certainly have enough jurisdictions to say what whether we have to?

Erwin N. Griswold:

Yes, Mr. Justice.

The Court has decided that it has jurisdiction to decide whether it has –-

Not according to it, assuming that much jurisdiction at least and assuming on the underlying question, the conclusion is there is no direct review of the case, is that limited jurisdiction it would have.

It was from our — number 2106, as in sending this back to the District Court?

Let’s just assume that our —

Erwin N. Griswold:

Well, Mr. Justice, I would think that if you concluded that you had no jurisdiction, the case had never left the District Court, and you would not have power to send it back with any directions or instructions of any kind.

There is a suggestion here in the argument today that Sisson’s objection was not a selective one.

On that, I would simply refer to page 151 of the appendix, Sisson’s testimony which the government accepts as part of the agreed statement of facts here, “I refused induction because I believe the war in Vietnam, that is the United States war making in Vietnam, to be wrong.”

He then went on to say, “That therefore, I felt that by accepting induction that even though I might not be sent to Vietnam, I would be consenting to the government’s waging a war in Vietnam and I believe that my duty not to consent with that action because I did not consent in my own mind.”

With respect to the power of Congress to impose a peace time military service, I was fortunate enough to go off in a country which did not have conscription, and I suppose I regarded that as something which would last for all time.

It would be fine if we could get to that situation.

I would point out though that Congress enacted the modern conscription laws in 1940, which was technically a time of peace, actually a time of peace in this country.

That the problem of reenacting that statute in 1941 also came up in a time of peace in this country, and it would be rather surprising if it should now be held that Congress had no power to pass those statutes.

Let me conclude by simply saying that our professional historian friends are rather skeptical of lawyer’s history.

They refer to it as law office history and regarded as –- to use an appropriate word, as highly selective. C.V. Wedgwood, the noted historian, wrote one time, “We know the end before we consider the beginning and we can never wholly recapture what it was to know the beginning only.”

And our submission here is that the Court should not find in history something that surely was not there.

Our predecessors were sensitive to the First Amendment, but the founders accepted the exemption from military service for members of the peace churches without any question, and this was accepted explicitly in the Acts of Congress for 130 years right through the First World War.

It would be odd indeed if the invalidity of this unbroken practice was now discovered for the first time a 180 years after the adoption of the Bill of Rights.

Warren E. Burger:

Thank you, Mr. Solicitor General for your submission.

Thank you, Mr. Flym.

The case is submitted.