United States v. Sisson

PETITIONER:United States
RESPONDENT:Sisson
LOCATION:17th Judicial Circuit Green County Alabama Jury Commission

DOCKET NO.: 305
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 399 US 267 (1970)
ARGUED: Jan 20, 1970 / Jan 21, 1970
DECIDED: Jun 29, 1970

Facts of the case

Question

  • Oral Argument – January 21, 1970
  • Audio Transcription for Oral Argument – January 21, 1970 in United States v. Sisson

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

    Warren E. Burger:

    We will take Number 305, United States against Sisson.

    Mr. Solicitor General.

    Erwin N. Griswold:

    Mr. Chief Justice and may it please the Court.

    This too is a draft case raising two new unrelated and difficult problems.

    In a third aspect it’s like the Welsh case which has just been argued.

    And for my argument on the question relating to religious training and belief, I rely on the argument in the case just concluded.

    The defendant here was indicted for failing to report for induction.

    There was a trial before jury at which the defendant testified.

    The jury returned a verdict of guilty.

    The defendant then made a motion in arrest of judgment.

    In his motion, the defendant said that he could not participate in the Vietnam War without doing violence to the dictates of his conscience.

    And he further stated that, he cannot qualify as a conscientious objector within the meaning of the Military Selective Service Act of 1967 because he is not a pacifist.

    And in any event, his convictions that the Vietnam War is illegal, immoral, and unjust are not based on religious training and belief.

    The District Court granted the motion in arrest of judgment and so doing it referred to facts which had appeared at the trial and noted that particularly the defendants own testimony.

    And noted that “in substance the case arises upon an agreed statement of facts,” that appears on page 250 of the appendix.

    I can state that none of the facts is controvert.

    We do not dispute that the appellee was sincerely and conscientiously opposed to the Vietnam conflict based on his moral convictions, educational training, extensive reading both about Vietnam, and about such things as the UN Charter and the Nuremberg Trial.

    As I have indicated, his claim is selective not against war in any form as the phrase is in the statute.

    And he expressly asserts that it is not based on religious training and belief.

    In this situation, the District Court held that the appellee had a valid claim to be constitutionally exempted from combat in the Vietnam type of situation.

    John M. Harlan II:

    Do you think this is a motion in arrest of judgment or motion for an acquittal?

    Erwin N. Griswold:

    This is a subject to which I am about to address my argument.

    It is the — I was trying to give the setting.

    The first half of my argument is devoted to jurisdiction and the second half to selective conscientious objection.

    The Court concluded that the Military Service Act violated the free exercise in Due Process Clauses.

    It held in the alternative of Section 6 (j) the exemption provision violated the Establishment Clause and that it unreasonably discriminated between religious and non-religious conscientious objection.

    From this decision, the United States took this appeal purporting to act under the Second Clause of the Criminal Appeal Act of 1907.

    Now, found in Title 18 of the United States Code Section 3731, the relevant passages from which are set out on page 13 of the Government’s brief.

    And now, I will turn to the jurisdictional question which in my mind is a very close question.

    We contend that there is jurisdiction but arguments can be made both ways.

    Erwin N. Griswold:

    There’s no doubt that there was a trial here and if there had been a verdict of not guilty even a directive verdict of not guilty.

    There could be no appeal no matter what error of law was made by the trial court.

    An illustration of that is found in the case decided just last month of United States against Bond which is set out in appendix to one of the briefs filed by amici curiae, the one by the Los Angeles selective service law panel.

    In the Bond case, Judge Weigel directed the verdict for the defendant, who was a selective conscientious objector based on religious training and belief.

    We think that Judge Weigel was wrong as the matter of law but there’s nothing we can do about it and we have of course taken no appeal.

    The difference is that here there was a verdict of guilty followed by a motion and arrest of judgment which was granted.

    Now, if Judge Wyzanski had entered an order saying, having examined the record I find that there was no sufficient evidence to submit to the jury, and the case should not have been allowed to go to the jury and accordingly, I direct to the judgment of acquittal be entered.

    I think we would be so close to the situation in the Bond case that we couldn’t talked about it.

    And it is easy I think to say that, what Judge Wyzanski did is not different in substance from that and that summarizes the difficulty of our position on the jurisdiction.

    Warren E. Burger:

    Well, there’s one important difference though in that the verdict and judgments stands now, does it not?

    In your first illustration a judgment notwithstanding the verdict that there would be no verdict any longer but the verdict still stands here, does it not?

    Erwin N. Griswold:

    I’m not sure Mr. Justice.

    The judge —

    Warren E. Burger:

    Well, what —

    Erwin N. Griswold:

    The judge has decided that there was no basis in law for the verdict.

    Warren E. Burger:

    Well, what was — what was the language of his order was?

    Erwin N. Griswold:

    It is not in the appendix.

    I can’t tell you the language.

    The opinion is here but the actual judgment is not here.

    I discovered to my surprise last night, page 264, enter forthwith this decision in this Court’s order granting defendant systems, motion and arrest of judgment.

    And there —

    Warren E. Burger:

    Well, when you — this is the language I had in mind.

    It’s in arrest of judgment.

    He is acknowledging the existence of the judgment which presupposes that it rests and turn upon a verdict and he hasn’t done — he hasn’t expressed or articulated any idea of setting aside that verdict nor does he vacate the judgment he said, he arrests —

    Erwin N. Griswold:

    There has been no judgment.

    Warren E. Burger:

    What is the language you read again?

    Excuse me, I’m looking for it in the appendix but I don’t find it precise —

    Erwin N. Griswold:

    250 — 250 is the only place that I can find it, enter forthwith this decision and this Court’s order, granting defendant Sisson’s motion in arrest of judgment.

    Now that is in arrest of judgment, there had not previously been any judgment and a motion in arrest of judgment, not in arrest of the execution of judgment but in arrest of entering judgment as I interpret it.

    I — if you’re —

    Warren E. Burger:

    Well, that puzzles me a little bit.

    I did not know whether he — from this language was arresting a judgment, the execution of a judgment entered, or arresting the entry of the judgment based on the verdict.

    But in either case the verdict stands, does it not?

    Erwin N. Griswold:

    The verdict is in a historical fact, no doubt about that.

    Warren E. Burger:

    It’s — its —

    Erwin N. Griswold:

    Its legal effect has been undermined by the District Judge’s decision.

    He had decided that it is not a proper basis to found a judgment of the Court of conviction.

    Warren E. Burger:

    But when a sophisticated, highly experienced District Judge makes the choice between a judgments entering judgment notwithstanding a verdict in this posture, and the action which he did take.

    Does that suggest anything to — should that suggest anything to us?

    Erwin N. Griswold:

    It may have suggests — may suggest that he was trying to preserve a situation which would make it possible for us to appeal to this Court.

    Warren E. Burger:

    Not a — that’s among other things, one of the incidental factors which occurred to me but in so doing, he has left a verdict extent without on its face —

    Erwin N. Griswold:

    That — that’s —

    Warren E. Burger:

    — on its face entered.

    Erwin N. Griswold:

    I hate to be arguing against myself here Mr. Chief Justice, but he has left the verdict stand but he’s pulled all the foundation out from under so, its floats in space I guess.

    It is no longer a basis for entering a judgment of conviction.

    May I ask the Mr. Solicitor General.

    This is an appeal isn’t it, a direct appeal?

    Erwin N. Griswold:

    Yes, Mr. Justice.

    It must be from the judgment, must have not?

    We — I thought you said —

    Erwin N. Griswold:

    It is from — it is from a judgment or order in arrest of judgment which is the express —

    Well my point is, I gather we’ve often said that we don’t review opinions here we review judgments.

    Erwin N. Griswold:

    No, Mr. Justice.

    You don’t review opinions but the criminal —

    Thurgood Marshall:

    The statute says, from a decision, does it?

    Erwin N. Griswold:

    The Criminal Appeals Act provides that there is an appeal to this Court from a decision arresting a judgment of conviction.

    I know a decision.

    What’s a decision — what forms of decision take to purposes of appeal?

    Erwin N. Griswold:

    From a decision arresting a judgment of conviction for insufficient —

    Well, I ask again.

    I ask again, what form does a decision take?

    Do we have another jurisdictional question here?

    Will we have any appeal here at all?

    Erwin N. Griswold:

    I don’t think so, Mr. Justice.

    I think the decision is —

    The opinion?

    Erwin N. Griswold:

    Is the opinion and the final order at the end, beginning on page 248 and concluding on page 264 of the appendix.

    Any rate that’s the, not only the only order there is but that’s the order which protects system and from which the Government is.

    And there can be no doubt that while that stands Sisson completely protected and that is the order from which the Government is seeking to give.

    Thurgood Marshall:

    But General, how do we — aren’t we further confused by the fact that it was a motion towards the indictment at the beginning of it, which he denied?

    Erwin N. Griswold:

    There was a motion too Mr. Justice —

    Thurgood Marshall:

    To quash the indictment?

    Erwin N. Griswold:

    Yes.

    Thurgood Marshall:

    Dismissing the —

    Erwin N. Griswold:

    Which was — which was denied —

    Thurgood Marshall:

    Was denied.

    Erwin N. Griswold:

    There were several motions before a trial, all of which were —

    Thurgood Marshall:

    Then one of them was that and yet, after the trial then he dismisses it.

    Erwin N. Griswold:

    In this motion, the arrest of judgment to some extent the grounds are the same as those which were presented in motions made before the trial.

    Now in this case, if the motion had been granted on the fact that the statute was unconstitutional on its face, there would I think would be no doubt that this Court would have jurisdiction of the appeal.

    But in fact, the motion was granted on the ground that in the later the facts appearing at the trial, the statute is unconstitutional as applied to this particular defendant.

    If those facts had appeared in and agreed statement of fact, this Court’s decision in United States against Halseth in 342 U.S. would support the jurisdiction.

    Here the facts appeared in testimony but are accepted by the Government so, that there is a basis for the District Court’s statement that the case in substance arises upon an aggrieved statement of facts.

    We never formally agreed to them but we don’t dispute them.

    Thurgood Marshall:

    How can you dispute them he’s going to lose this case?

    You need to agree to him in order to give him the right to arrest of the judgment?

    Erwin N. Griswold:

    No, we would lose our right to appeal if we —

    Thurgood Marshall:

    That’s right.

    Erwin N. Griswold:

    — dispute them, I agree and we don’t.

    We don’t.

    Erwin N. Griswold:

    In this situation, we have concluded not without difficulty that to construe the Criminal Appeals Act as precluding appeal of the decision below would unwarrantedly exalt form over substance.

    There is no genuine difference between this case and one in which the nature of the appellees conscientious objection would be set forth in the indictment itself or formerly stipulated to on a motion to dismiss.

    We think too that the decision below is one on the construction of Section 12 (a) of the Selective Service Act.

    Less clearly, we think that the Court’s decision with respect to Section 6 (j) comes within the Criminal Appeals Act.

    You have to go through 6 (j) to get to 12 (a) to — in order to make it a construction of the statute.

    Now, there are two other Clauses of the Criminal Appeals Act, one, relating to a judgment setting aside or dismissing any indictment or information; and the other relating to a — the sustaining of a motion in bar and its order postponing the question of jurisdiction in this case.

    The Court requested the parties to direct their attention to this other provisions and we‘ve done so at some length in our brief.

    I may say that there are few problems which reoccur so frequently or present such extreme technical difficulty in the Solicitor General’s office than the proper construction of the Criminal Appeals Act, you had the Jorn case last week which was a problem.

    There are also other provisions —

    Still is?

    Erwin N. Griswold:

    — in the Act relating the one you can appeal the Courts of Appeals.

    We find that if we appeal to a Court of Appeals, they transfer to the Supreme Court.

    So far, we haven’t had much problem with the Supreme Court transferring them back to the Court of Appeals but the clauses are —

    But may I ask Mr. Solicitor General, do you see any similarity in the problem here to that in Jorn?

    Erwin N. Griswold:

    No, Mr. Justice.

    I don’t believe I do.

    In Jorn, as far as the second trial is concerned, the defendant had not been put in jeopardy and the only issue is whether the jeopardy of the first trial is wiped out or not so as to make the appeal available.

    Here —

    Of course, strictly speaking and that was only a second stage not a second trial but a second stage on the same proceeding in Jorn.

    Erwin N. Griswold:

    Well, it was a second trial under the same indictment.

    Under an amended information?

    Erwin N. Griswold:

    An information, yes Your Honor.

    I don’t recall whether the amendment was made following the first trial or during trial.

    After the first stage of the proceeding in that was met.

    Erwin N. Griswold:

    Yes.

    Now the clause relating the motions in bar, it seems to us rather obviously inapplicable since by its terms, it’s available only when the defendant has not been put in jeopardy.

    Here, the appellee has clearly been put in jeopardy.

    Not only was the jury empanelled but a verdict was rendered against him.

    Moreover, the legislative history which is set out at some length in our brief shows great concern on the part of responsible Senators that this new and for its time rather bold statute, should not transgress any constitutional limits, particularly with respect to double jeopardy.

    I just do not see how we can get any helped from the motion in the bar clause.

    Erwin N. Griswold:

    And finally, there is the clause relating to setting aside or dismissing any indictment or information.

    There is no verbal limitation there with respect to jeopardy and a literal reading of the provision might lead to the conclusion that it provides a basis for jurisdiction here.

    In its original form, this clause related to decisions on demur and such decisions would be rendered before or nearly this before jeopardy.

    Seven months following the enactment of the statute, this Court indicated that the provision applied and I quote “To judgments rendered before the moment of jeopardy is reach,” and that’s United States against Macdonald in 207 U.S.

    And this has been the consistent construction of the provision by the Department of Justice over a period of more than 60 years.

    A little more than 20 years ago, a case called Zisblatt came to this Court and Solicitor General Perlman, actually had came through the Court of Appeals and was certified to this Court.

    Solicitor General Perlman moved that the appeal to be dismissed because there jeopardy had attached.

    We have searched through the files to try to find some greater statement of the reasons but have not found that.

    There is no doubt I believe that it was the expectation of the legislators while the bill was going through Congress.

    That the rulings to which the bill related would occur before a jury was sworn except for decision rendered on a motion and arrest of judgment.

    We’re not prepared to dispute this contemporaneous understanding and the interpretation of the Act at which has obtained since 1907.

    It’s true that the statute has been amended particularly when it was codified in 1908 — in 1948 but the reviser’s note at that time makes it plain that the changes then made were editorial only and were not intended to order the scope of review.

    Over the years, the Department of Justice has repeatedly sought to get the statute change, I might say modernized, and such an effort is pending now.

    But there have been no changes and the law today would be seemed to be essentially the same as it enacted in 1907.

    Warren E. Burger:

    (Inaudible), did you say that your — is there objection to it in Congress or just admission of —

    Erwin N. Griswold:

    No, Mr. Justice.

    It’s just hard to get things through Congress even when there is no objection.

    Congressman McCulloch, the raking minority member of the House Judiciary Committee, is interested in this now and we hopes that he will make some progress not only on this, but on the statute dealing with the direct appeals and Interstate Commerce Commission cases and from three judge courts.

    And I can only say that where the statute passed it would greatly simplify the worked of the Solicitor General’s office.

    John M. Harlan II:

    How about us?

    Erwin N. Griswold:

    How about?

    John M. Harlan II:

    Would it simplify our tasks too?

    Erwin N. Griswold:

    You might have more petitions to certiorari to examine or to review at Courts of Appeals.

    I don’t know whether it would or not because the existing effect is that a great many cases are not appealed at all that ought to be appealed.

    Simply because we feel that we cannot appropriately bring such a case to this Court and we would take it to a Court of Appeals.

    And would very likely abide by the decision of the Court of Appeals and such I think Jorn is a clear example.

    I — we were sorry to bring that case here there is no place else we could go.

    May I ask Mr. Solicitor is Justice Sparksman —

    Erwin N. Griswold:

    Yes, Mr. Justice.

    Yes.

    Erwin N. Griswold:

    It says a full support of the department but so it did over the past five or six years there has been an active effort to get it done.

    Is there any documentation (Inaudible), what I mean are they significant to the committee?

    Erwin N. Griswold:

    I don’t believe it’s gotten to a committee.

    We did refer to the fact in our brief in this case that we had efforts pending but I don’t know whether anything is cited now or not.

    No, I don’t have any.

    I — I’m quite sure that there is no committee report.

    I suspect that the only thing that is available is the usual letter from the Deputy Attorney General which ordinarily is not a public document.

    On this basis, our position is that the only basis for jurisdiction here is the arresting a judgment clause even that’s a little shaky as I tried to indicate.

    But for the reasons I’ve given earlier, our submission is that that provision can appropriately be construed to support this Court’s jurisdiction of the appeal.

    And now, I turn to the merits in the Sisson case assuming that I’m validly here.

    As I have already indicated, it involves nonreligious, selective objector.

    Judge Wyzanski held the indictment invalid on both grounds religious and selective.

    We think he was wrong on both grounds.

    If he was wrong on the selective objection ground, he need not have considered the nonreligious character of the objection.

    As I’ve already indicated, we rely on the argument in the Welsh case so, far as the question of the reference to religious training and belief in the statute is concerned.

    And that leaves for consideration here, the question of selective conscientious objection.

    That is the question of the validity of the provision which Congress has included in the statute that exemption will be allowed when the registrant and I quote from Section 6 (j), “His conscientiously opposed to participation in war in any form.”

    There’s no suggestion that the appellee comes within the terms of that statute.

    We have no possible question of statutory construction here with respect to that.

    His objection is to the Vietnam War.

    He asserts that he is not a pacifist, thus, unless the statute is in some way invalid.

    He is not entitled to an exemption quite without regard to whether his objection is based on religious training and belief.

    And it was for that reason that I allocated the religious argument to the Welsh case and the selective argument back to this case.

    It may well be noted in the first place that the appellee has not been indicted for failure to obey and order to go to Vietnam.

    He is being prosecuted for failure to submit to induction in the Armed Forces.

    Thus, the Court undertook to excuse a deliberate violation of the law on the basis of events which may or may not occur in the future.

    Assuming that the question is reached, we think that the District Court look far beyond the limits of the proper exercise of judicial power in undertaking decide on the basis of its balancing of the considerations, whether an individual’s conscientious objection to a particular war, gave him a constitutional right to disobey an Act of Congress.

    In our view, the constitutional grant of power to Congress, to raise and maintain armies is not properly subject to the balancing approach applied in the instant case.

    It is not a power to raise and maintain armies when in the view of a Court it seems that on a whole the arguments in favor of it outweigh the particular objections which could be raised by an individual oppose to it.

    The weighing of considerations, the determination of necessity, of necessity and details is for Congress and not the courts.

    Erwin N. Griswold:

    Congress must of course act constitutionally, but it is not the problems of the courts to decide whether a particular law or a particular foreign policy is good or bad or whether there is or is not any need for specified numbers of man in a particular place at a certain time.

    Judges are not the person’s charge with the responsibility for determining the national need for military manpower.

    So far as the selective conscientious objector is concerned, Congress has made no discrimination between religious and nonreligious motivations.

    Thus, the Establishment Clause has no bearing on the issues here involved.

    Even in its broadest conceivable construction nor can this case properly be brought within the Free Exercise Clause.

    Religious freedom does not require that religious scruples be recognized as justifying disobedience to a valid law.

    This Court had so said quite clearly in Hamilton against the Regents in 293 U.S. where they quoted from the opinion in United States against Macintosh, this is on pages 44 and 45 of our brief, and then there is at the bottom of page 45, a quotation from an opinion of Judge Augustus Hand who I think, I may appropriately say is perhaps my favorite federal judge.

    There is a distinction between a course of reasoning resulting in a conviction under particular war is inexpedient or disastrous and conscientious objection to participation in any war under any circumstances.

    The latter not the former may be the basis of exemption under the Act and it surely never occurred to Judge Hand that there was any legal question lying behind that statement.

    The former is usually a political objection.

    While the latter we think may justly be regarded as a response of the individual to an inward matter.

    Call it, conscience are gone, that is for many persons at the present time the equivalent of what has always been thought a religious impulse.

    Only if the Free Exercise Clause is broadened to encompass a general right of conscience would that provision be useful to the appellee.

    And there are extensive arguments in the briefs of amici curiae to the effect that the First Amendment does command a general right of conscience.

    That goes beyond but the amendment says, beyond anything that this Court has ever decided and it seems to me would be a wholly unwarranted and unjustified.

    If that provision was given such sweeping scope, it would have necessity extend beyond the Selective Service Act to other areas.

    Such as the payments of taxes or to people have conscientious scruples against the racial equality.

    And I have no doubt that there are such people whose conscience seems perfectly clear on that matter unless the Fourteenth Amendment was held to have pro tanto repeal the First Amendment which seems a curious reversal of the operation of those provisions.

    Such a construction of the First Amendment is without precedent.

    It would be wholly destructive of the orderly functioning of Government.

    And it would undermine the essential integrity of the democratic process.

    It is true of course, that we are a constitutional government.

    But we are also a government one of whose great principals is majority rule.

    The acts — asked by the elective representatives of the people are the law.

    They are subject to the Constitution but the elective representatives of the people make the political decisions.

    Warren E. Burger:

    Mr. Solicitor General, may I ask you this?

    Would you see any difference in the posture of the basic claims of this appellant?

    And that of a taxpayer who refuse to pay any taxes so long as the — some of the taxes were being used to maintain a war that he objected to on the same grounds?

    Erwin N. Griswold:

    Well, no Mr. Justice.

    That is essentially the argument I would just trying to make that pressing — pressing the First Amendment to establish a constitutional right of free conscience could not be limited to the Selective Service Act.

    Erwin N. Griswold:

    It could apply to all across the board anything which a person sincerely, conscientiously objects to.

    He would be protected in his objection by the Constitution including as far as I can see that of course would be another issue which would have to argue before this Court decided and the Court might find some way to make a distinction, but I can’t make the distinction now.

    It seems to me, that it would follow that particularly since Flast and Gordon that — not only since Flast and Gordon, Flast and Cohen but if the premise is the Constitution protects people in conscientious nonreligious objections.

    Then it seems to me, that it would follow that a citizen could refuse to pay either any taxes or conceivably some kind of a pro rata allocation of his taxes, insofar as they or perhaps, we would have to set up separate funds and this taxes could go into a fund which couldn’t be used for defense purposes and other people’s taxes would go into the defense fund.

    It seems to me that pressing the general language of the First Amendment that far would be pushing it to a dryly logical extreme.

    And finally, we contend that the provision made by Congress does not violate the Fifth Amendment.

    Congress could rationally distinguish between persons oppose to war in any form and those whose objections extend only to a particular war or situation.

    This is not a question of sincerity or depth of conviction but opposition to a particular war necessarily involved a practical and essentially political judgment.

    It represents the individual’s personal conclusion that the policy adopted by the duly elected representatives of the Government is wrong at a certain time in relation to a particular area of operations.

    Those who oppose participation in combat in any form do not make the same type of immediate political judgment.

    Congress may validly conclude that there is a qualitative difference between persons who is beliefs caused them to opposed participation in all wars.

    And those who wish to reserved the right to choose the wars in which they will fight.

    Except for the court below and Judge Weigel and the District Court in California to which I’ve made reference.

    All of the courts which have considered the matter have held that Congress may validly draw a distinction between those who oppose all wars and those whose objection is only to a particular war.

    The District Court took the position that the magnitude of an individual’s conscientious objection is not presumably lessened because his beliefs relate to a particular war.

    But it’s not the magnitude or the sincerity of the objection which gives rise to the distinction, it is its nature.

    Congress could reasonably conclude in the exercise of its constitutionally granted power to raise and maintain arms.

    That a viable Government cannot allow political dissent to excuse a person from the duties, which it feels it must impose on all persons of the same class.

    Mr. Solicitor, are you arguing that even if assistance claims were religious, the Government could nevertheless deny him an exemption because it doesn’t oppose all wars?

    Erwin N. Griswold:

    Yes, Mr. Justice.

    But you don’t have to reach that point here in this case because I gather you claim his position isn’t religious anyway?

    Erwin N. Griswold:

    No, Mr. Justice.

    The statute as I see it has two conditions in it by reason of religious training and belief which Sisson doesn’t meet by his own assertion is constitutionally opposed to participation in war in any form.

    And Sisson by his own assertion does not meet the second ground.

    I don’t think it makes any difference whether his reason for not meeting the second ground is religious or intellectual and philosophical.

    Now, I would point out that Bond case decided by Judge Weigel —

    But if we, if we said that his position was in religious in any event that’s the end of it —

    Erwin N. Griswold:

    That would be — then you would not need to decide the war in any form at issue.

    Thurgood Marshall:

    Mr. Solicitor, supposed that not this case but there is an establish religion that we will both agree is offensive and they say the war in Vietnam is bad for some reason and were against it.

    We urge all participants not to participate that would be sufficient, would it?

    Erwin N. Griswold:

    Mr. Justice, I would —

    Thurgood Marshall:

    That case there.

    I’m only trying to take here the statute report.

    Erwin N. Griswold:

    This is a — this is a hard case, which fortunately isn’t here.

    Thurgood Marshall:

    Right.

    Erwin N. Griswold:

    But I would take the position that Congress can draw the line and say that it recognizes religious objection only when it is based on opposition to war in any form.

    That is what it has said in the statute.

    I don’t know any reason why it shouldn’t be taken at face value.

    Warren E. Burger:

    What’s the excuse?

    Erwin N. Griswold:

    I recognized that if that case came and in some ways it’s almost presented in the Bond case.

    The Bond case involved a sincere catholic who following certain teachings of the church with respect to just and unjust wars, concluded that this was unjust war and that he could not participate in it and I need not make it plain that I have no question whatever about the sincerity of his beliefs or about the sincerity of Sisson’s beliefs.

    It is our position that this is a judgment, which not only has been made by Congress, but which it was proper for Congress to make.

    We have not only the First Amendment, we have the raise and maintain armies clause and Congress has said that two qualified for a conscientious objection, exemption you must be opposed to war in any form.

    And I would suppose that that would be true, even though Congress repealed the religious training and belief exception which it seems to me they might well do Australian-Great Britain get along without it but that’s a matter for the judgment of Congress.

    Supposed that Congress did eliminate religious training and belief but simply said as the Australians and the English do is opposed to war in any form.

    It seems to me, it would not help the claimant to say, “I’m not opposed to war at any form.

    I am only opposed to this war but I am opposed on religious grounds,” and brought in all kinds of documentation to show that he had sound religious grounds for doing it.

    He not only still would not come within the statute but it would be my submission and I know this is a difficult illusive area.

    But it would be my submission that there’s nothing in the Constitution which can’t properly be regarded as restricting Congress in making that judgment.

    Warren E. Burger:

    What is the exclusionary language in the statute that you referred to in the Bond case, I think that followed the amended language.

    Erwin N. Griswold:

    Well, the —

    Warren E. Burger:

    What shall not to —

    Erwin N. Griswold:

    The statute now says, it’s in the Welsh —

    Warren E. Burger:

    The Welsh case, excuse me.

    Erwin N. Griswold:

    Now, it’s on page 3 of the Sisson brief and this is the way it is now.

    Nothing contained in this title shall be construed to require any person to be subject to combatant training, who by reason of religious training and belief is conscientiously opposed to participation in war in any form as used in this subsection the term religious training and belief does not include essentially political, sociological, or philosophical views or a merely personal moral code.

    Now that in line is not only a thin one at best but in particular cases it can become extraordinarily thin.

    But it seems to me, that there is room for a line there that Congress has drawn the line.

    In this case, there’s no problem about its being close to the line or not.

    It is asserted that he does not base his claim on religious training and relief.

    Erwin N. Griswold:

    And in the Sisson case, we think because on the agreed statement of facts to use Judge Wyzanski’s phrase, “The appellee does not qualify under the statute either by reason of religious training or relief — and belief or by reason to opposition to war in any form.

    We submit that the judgment of the District Court should be reversed and that the case should be remanded to that Court and here Mr. Chief Justice, I come to what I think the was your procedural point with directions to enter judgment on the verdict.

    Warren E. Burger:

    Thank you, Mr. Solicitor.

    Mr. Flym.

    John G. S. Flym:

    May it please the Court.

    I’d like first to address myself to the question whether the decision arresting judgment of conviction was in fact entered by the court below.

    I note parenthetically that the Government’s brief at pages 7 and 8 states, “Appellees motion which the trial judge granted purported to be in and was treated by the District Court as a motion in arrest of judgment.

    Warren E. Burger:

    Would you —

    John G. S. Flym:

    This —

    Warren E. Burger:

    — raise your voice a little bit counsel.

    John G. S. Flym:

    Yes, Your Honor.

    It was submitted in accordance with the times spelled out in Rule 34 or the making of such motions after the jury’s verdict of guilty.

    A ground on which the motion rested but the indictment did not charge an offense similarly fell within the traditional scope of such motions is expressly recognized in Rule 34.

    I have assumed for proposes of my brief an argument before this Court today, that the Government agreed with our position that what the judge in fact granted was a motion in arrest of judgment.

    I think that assumption is supported by the record.

    On the date when the verdict of guilty was rendered by the jury, the judge said, this appears at page 197 of the record.

    He said March 31st as the date for sentencing that is, “Had no motion in arrest of judgment then filed and there was no guarantee at any such motion would be filed by Sisson in this case.

    Sentencing would have occurred on March 31st.

    Warren E. Burger:

    Could that motion had been made one of the rules after the entry of the judgments.

    In other words, it’s about enough to allow a motion an arrest of the execution of the judgment?

    John G. S. Flym:

    I think Rule 34 expressly limits the time within which a motion in arrest of judgment can be made.

    Warren E. Burger:

    Between the —

    John G. S. Flym:

    It will carry the 10 days following the verdict guilty or within such further time as the Court allow us.

    But as of the date of the jury’s verdict, there were 10 days within which the motion could be filed.

    If no such motion was filed on March 31st, the expiration of the 10-day period sentencing was to occur.

    Moreover, the docket in the case is reproduced at the beginning of the record on appeal at pages 3, and 4, and 5 as a matter of fact as an indication spelling out the judgment the decision of the District Court as follows.

    The defendant with his counsel and Government counsel present, the Court reads its opinion granting defendants motion in arrest of judgment pursuing to Rule 34 by the federal rules of criminal procedure.

    Excerpts quoted below, “In the words of Rule 34 the indictment of Sisson does not charge an offense.”

    This Court’s decision arresting a judgment of conviction for inefficiency of the indictment is based upon the invalidity of the statute upon which the indictment is founded within the meaning of those phrases as used in 18 U.S.C. Section 3731.

    Then, the century in the docket continues and concludes Court orders this decision and this Court’s order granting defendants Sisson’s motion in arrest of judgment enter forthwith.

    John G. S. Flym:

    On the question of the scope of the statute in conferring jurisdiction upon this Court on appeal, on direct appeal from judgments of the District Court, granting a motion in arrest of judgment.

    We concur with the position of the Government that indeed this Court does have jurisdiction under the motion in arrest of judgment provision of Section 3731 of the Criminal Appeals Act.

    In addition, it is our position that the Government saw an argument with respect to the other two clauses the plea in bar, as well as leave motion dismissing an indictment.

    Really, really is quite persuasive that the intent of the draftsmen of the Criminal Appeals Act was precisely to confer upon this Court jurisdiction in all cases which were not precluded by the Constitution by reason of the Double Jeopardy Clause.

    Now, I have in mind for instance and I’m simply selecting randomly on page 22 of the Government’s brief.

    There is a quotation from Senator Bacon, which he indicates that, “The Jeopardy Clause was inserted in the motion in bar subdivision out of an abundance of caution.”

    The caution, I suggest to the Court in context were simply that they wanted to be quite clear that they were not purporting to grand jurisdiction in cases which are constitutionally proscribe.

    Now, as a reference to the purpose which the statute was intended to serve on that same page, page 22 of the brief.

    The purpose was simply to meet the problem of having District Court Judge’s dismissing criminal prosecutions.

    In particular there was a case against — Cherry Meat Packers.

    The Court dismissed the proceedings and the Government was powerless to do anything about it.

    And Congress wanted to ensure that that sort of a result simply could not have it.

    It wanted to provide review in this Court to ensure that those sorts of decisions would be reviewed by the Court and I don’t think there’s a shred of evidence which indicates that the Congress intended by providing various loopholes to make it possible by supposedly, well, a district judge bent on circumventing the appeals provision of the Criminal Appeals Act.

    To simply avoid this result namely of providing review in this Court by for instance permitting, well the procedure which was followed in this case.

    That it seems to me that the present cases the prototype of the situation, which the draftsmen of the Criminal Appeals Act could not possibly have intended to result in precluding review by this Court.

    That is simply would be much too easy to circumvent the purpose of the draftsmen of the Act.

    Now on page 23, Senator Nelson expressly says again I’m quoting the quotation, elsewhere said that, “The plain bar section, it was made clear out of the extreme caution that where the defendant has been put in jeopardy, he cannot be reindicted.”

    The emphasis again was on the question whether the defendant having filed whatever motions been filed.

    Having that motion granted by the Court whether he could be reindicted and I don’t think, there’s any question or is there any suggestion by the Government that in circumstances where a defendant files a motion in bar or a motion in arrest of judgment that he could in fact be reindicted if the motion were granted in subsequently that decision were vacated.

    Now, the Government at page 25 quotes Justice Holmes in the case of United States against Macdonald and indeed, Justice Holmes refers to judgments rendered before the moment of jeopardy is reach.

    What is omitted immediately succeeding the quotation that is the text includes a citation to the decision in Kepner against United States at 195 U.S. and in that decision Justice Holmes we quote from him in our brief, they declare that he consider the double jeopardy question to be a very limited one.

    That is he pointed out there are numerous circumstances in which a man can be retried after having once been tried and found guilty by a jury without contravening the double jeopardy safeguard in the Constitution.

    It won’t leave where the point anymore, I would like again to refer to the testimony of Senator Knox which is quoted at pages 26 and 27 of the Government’s brief in which Senator Knox refers to all of the motions that is the merit to the indictment, the motion to quash or set aside the indictment, motion and arrest of judgment and in judgment sustaining defendant’s plea in bar.

    And he refers to all of these motions, as motions the effect of which is to defeat jeopardy.

    I believe that’s accurate in glossing of what is —

    Thurgood Marshall:

    You want us to affirm this judgment?

    John G. S. Flym:

    Yes, Your Honor.

    Thurgood Marshall:

    Where’s that leave your client?

    John G. S. Flym:

    If the judgment is affirmed?

    Thurgood Marshall:

    Uh-huh.

    John G. S. Flym:

    Well, I believe that the conviction is set aside.

    That is the judgment of the Court is —

    Thurgood Marshall:

    Arrested.

    That’s all the judgment said.

    That’s all the opinion said.

    John G. S. Flym:

    Right.

    Thurgood Marshall:

    That he stand.

    John G. S. Flym:

    Well, the judgment is arrested, Your Honor.

    Thurgood Marshall:

    But he’s still there but is arrested.

    John G. S. Flym:

    Right and —

    Thurgood Marshall:

    I am just wondering, how would you report that if somebody says if you have been convicted how you would report that, while arrested?

    John G. S. Flym:

    Well, well —

    Thurgood Marshall:

    I mean you’re so busy giving this Court jurisdiction but I’m just wondering what you are doing with it?

    John G. S. Flym:

    Well, so far as we’re concerned, Your Honor, quite frankly, I’m not prepared to respond to that.

    I haven’t thought of the problem but I will represent that will be satisfied with — when were judgment in this Court saying affirmed, I think, we can deal with the problem once — once that action is taken.

    I would — by way of context, there just isn’t enough time remaining today to deal with all of the issues particularly the First Amendment issues, selective objective question.

    I would like to refer, if I may, to some of the statement made by Solicitor General Griswold because I consider that some of the difficulties in hearing in this case arise from assumptions made by the Solicitor General, which are not dealt with it at all in either of the briefs.

    That is — the assumptions for instance is that when Congress acts that somehow there is a presumption which arises from the action of Congress, which is sufficient to simply overcome whatever claims an individual might make.

    We’re certainly not challenging our system of Government in this case.

    We’re not challenging democracy or majority rule.

    We’re not requesting that this Court imposed its judgments and substitute it for the judgment of the legislature of Congress.

    Warren E. Burger:

    Then you do not accept his extension and application of the — of your position to, for example, the social security payments or unemployment compensation or taxes?

    John G. S. Flym:

    No, Your Honor.

    Warren E. Burger:

    Do you think this is just limited to the war problem?

    John G. S. Flym:

    The issue presented before this Court is limited solely to the question or the man can be deprived of his liberty and compelled to kill conceivably.

    Warren E. Burger:

    Well, how do we know that he is going to be compelled to kill?

    That’s an issue that didn’t get discussed very much but he might wind up working in the embassy in Paris.

    John G. S. Flym:

    That’s true.

    That’s true he might.

    Warren E. Burger:

    Then he does not —

    John G. S. Flym:

    But initially —

    Warren E. Burger:

    — not kill anybody?

    John G. S. Flym:

    Right.

    Initially at the very least, we’re only certain that he was to be deprived of his liberty.

    I would submit that that’s efficient for purposes of distinguishing this case from a tax case.

    Warren E. Burger:

    Well —

    John G. S. Flym:

    It is —

    Warren E. Burger:

    Well, wait a minute let me see.

    You haven’t been concerned as I understood you the thrust of your case with his being deprived of his liberty but being made to fight a war.

    Now, assume he was sent to Paris to work in the embassy, do you have a case?

    John G. S. Flym:

    I think so, Your Honor.

    Warren E. Burger:

    Do you have a complaint?

    Do you have a compliant?

    John G. S. Flym:

    I think at this point, we do.

    That is, with — it is somewhat difficult to speculate about where he might have been sent, that is we have statistics showing that he had two out of three chances of being sent to Vietnam at least.

    But what happened was that he refused to submit to induction and he refused to submit to obey an order which was issued to him.

    And the Government asserts in various places that whether this conduct is criminal or not depends on the validity of the order.

    Now, we assert that the order as such, which precedes any assignment of the conscript to any field of duty whether to Paris or Vietnam, or any other locations.

    We assert that that order was in it of itself invalid for variety of reasons.

    I would in the time remaining this afternoon, simply like to address myself to two points.

    One will be in passing.

    I’ll refer to recent book written by a man named Raoul Berger entitled “Congress against the Supreme Court” in which the point is made I think quite convincingly.

    The judicial review in this Court is not a matter of user patient by this Court but was something intended very definitely by the framers of the Constitution, precisely to provide a safeguard against the encroachment of individual liberty by Congress.

    I would only like to refer to two quotations; one is from page 31 of this book its a 1969 book by Jefferson.

    Jefferson in 1781 stated, “That 173 despots would surely be as oppressive as one and elective despotism was not the Government we fought for.”

    Similarly, Madison in dealing with the purpose of the Bill of Rights stated, “These Amendments are incorporated into the Constitution, independent, tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.

    It will be and impenetrable ball work against every assumption of power in the legislative or executive.

    Now, the notion that the Federal Congress might arrogate to itself, powers and infringing individual liberty was something of which the framers was — were very, very conscious.

    Well —

    John G. S. Flym:

    They were concerned principally about Congress, the Federal Congress.

    John G. S. Flym:

    They were not particularly concern about state legislatures.

    They have faith in their state legislators.

    They knew but they knew nothing whatsoever about this new organ.

    This Federal Legislature that was to sit at times 1,000 miles away from some parts of this vast land.

    And the people were afraid that precisely the Federal Government would reach out and deprive them of fundamental liberties.

    For this purpose, this Court was vested with judicial review with the power of deciding where the Congress has exceeded the limits of its power, of the limited delegated powers conferred by the Constitution.

    This doctrine was asserted repeatedly throughout the time of the ratification of framing of the Constitution that is set on the verdict book.

    It was reiterated by this Court in Luther against Borden in the middle of 19th century.

    The only other point, I wish to make is the repeated insistence by the Solicitor General to history that on the basis of the history surrounding the adoption of the Bill of Rights.

    There is no basis for this Court concluding that religion is coextensive with the rights of conscience.

    I submit and I do it diffidently I was one of the students and this is a great man, vast knowledge of taxation certainly but I respectfully suggest that his knowledge — the scope of the religion protection is not accurate, it’s simply is not accurate.

    I refer for instance to the part of our brief at pages 97 through 102.

    In particular, I have reference to ratification statements, free ratification statements, that is before the Bill of Rights was in existence, that is I posit it to this Court the situation where there is no Bill of Rights where there is not First Amendment to be construed.

    And I ask this Court whether in that circumstance this Court could reach the conclusion that religion does not extend to the right of conscience or that the Constitution was intended to deprive individuals of the protection of religion, the free exercise of religion.

    I refer in particular to declarations of rights made by the conventions of New York, Rhode Island, North Carolina, and Virginia.

    These declarations assert the existence of certain inalienable rights and make it very clear that the Constitution was being ratified only with the expressed understanding that these rights were not infringed by the Constitution.

    That was prior to the adoption of the Bill of Rights.

    One of these rights was, “That the people have an equal and natural and an alienable right freely and peaceably to exercise their religion according to the dictates of their conscience and that no religious sect or society ought to be favored or established by law in preference of others.”

    Warren E. Burger:

    How does that get into this case?

    John G. S. Flym:

    It gets into this case in this way Your Honor.

    The argument of the Government relies on the proposition that somehow the word religion has grown beyond its intended scope.

    Warren E. Burger:

    Would you claim religious exemption here?

    Are you now arguing for religious exemption?

    John G. S. Flym:

    On a constitutional basis, we always have.

    That is it isn’t — isn’t an inaccurate statement to describe Sisson as a selective nonreligious objector.

    He is a selective nonreligious conscientious objector and the very necessity for making that distinction between the religious objector or rather nonreligious objecting — nonreligious conscientious objector is the fact that the Act, as the Solicitor General so eagerly defended it, makes that distinction.

    It does not extend the scope of the exemption in the Act to the full measure of protection and afforded to religion under the First Amendment.

    Warren E. Burger:

    We’ll postpone till morning.