William O. Douglas

“ There is nothing in the Act or regulations which precludes assigning the conscientious objector to civilian work in a theater of war, where his personal safety is imperiled. If he does not perform the assigned work 'satisfactorily,' he faces prosecution (32 CFR § 1660.31 (c) ) .↑ The House bill required classification of all free, white males 18 to 45 into groups of 25 men. Each group would have to provide one recruit. Under Monroe's version, if this was not done, the recruit would be chosen by draft, but the drafted man could provide a substitute. ”

“ In the absence of a declaration of war, he argues, a draft is not authorized and is equivalent to involuntary servitude. The Court of Appeals held that Congress' power to conscript men into the Armed Forces was not so limited, and the Government, opposing certiorari, states that ' [e] ven assuming that the present time is one of 'peace,' it has long been settled that the power to raise armies by conscription is not limited to periods of war or national emergency,' citing United States v. ”

“ If an executive war is unconstitutional, he says, but the Court refuses to invalidate it, then the President's 'conduct strengthens the moral case for disobeying executive orders which stem from his departure from constitutional demands.' Id., at 19. ”

“ He noted that the draft power claimed for Congress by Madison and Monroe was not limited to time of war or invasion and would permit a draft of men for any type of military service, at home or abroad, at the discretion of the Government. ”

“ It is a valid exercise of the war power. It is calculated to function-it functions today-in times of peril.' Id., at 9, 73 S.Ct., at 996, decided June 8, 1953. (Emphasis added.) In that case the declaration of war against Japan in 1941 still had effect at the time of petitioners' induction, although there had been no declaration of war accompanying the Korean conflict. [6]
The Court has held that 'War does not cease with a cease-fire order. ”

“ Under § 6 (j) , as it read during all dates relevant to this case, a conscientious objector who, like petitioner, is also opposed to noncombatant military service, may in lieu of induction 'be ordered by his local board * * * to perform * * * such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate. ”

“ Mr. Justice Cardozo's question about peacetime draft seems, therefore, to be an open one still. While some decisions suggest that war powers may be exercised in an 'emergency' prior to declaration of war, e. g., Silesian-American Corp. v. Clark, 332 U.S. 469, 476, 68 S.Ct. 179, 92 L.Ed. 81, there are other decisions directly linking the power of conscription to Congress' power under Art. I, § 8, cl. 11, to 'declare war.' [8] For example, in United States v. ”

“ Except in unusual cases, the Local Board will not permit the conscientious objector to fulfill his work obligation in his home town (32 CFR § 1660.21 (a) ) . The conscientious objector may indeed be ordered to do civilian work overseas (32 CFR § 1660.31 (b) ) . ”