Constitution Daily

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Was the Vietnam War unconstitutional?

September 20, 2017 by Lyle Denniston


This is the second of several articles that Constitution Daily will publish on the constitutional legacy of the war in Vietnam, with each article focused on a theme that is being explored in episodes this week and next of the PBS documentary, “The Vietnam War,” by Ken Burns and Lynn Novick.  This article is keyed to the broadcast tonight, on the Vietnam conflict as it unfolded in 1966 and 1967.  The remaining Constitution Daily articles will appear next week.

Americans were well aware, even before they had a Constitution with its First Amendment, that they had a right to express their grievances when government power was abused or misused.  Most Americans learn even in grade school about one of the early protests, when a rowdy band of colonists dumped a boatload of tea into Boston harbor in 1773 to show their resentment of British taxation.

In modern America, a march on Washington or some other mass protest in the streets may be the chosen method of exercising the First Amendment right to “petition the government for a redress of grievances.”  More frequently, though, petitioning is done by filing a lawsuit.

That is one of the constitutional legacies of the Vietnam War.  The constitutionality of any other war in U.S. history has not been tested as much in the courts as was the conflict in Southeast Asia in the Sixties and Seventies.  The lawyers’ argument was simple: this nation’s wars can only be started – as a constitutional matter -- with a formal declaration by Congress, and there was no such action before hundreds of thousands of troops were sent to war in South Vietnam and wave after wave of planes were sent on bombing raids over North Vietnam.

And yet, for all of that court activity, the Supreme Court never answered the core constitutional question – thus creating another legacy by its “strange silence,” in the words of Texas Tech law professor Rodric B. Schoen who made a broad study of that whole phenomenon.  The silence, in short, meant that presidential power to start wars would remain largely unchecked.

The Vietnam War was already widely unpopular by early 1966, despite the repeated attempts by President Lyndon Johnson, his aides and the generals to proclaim that U.S. troops were winning.  The unpopularity deepened when the nation watched, enthralled, a series of televised Senate hearings at which the success story was repeatedly challenged.  A highly respected figure, George Kennan, often considered one of Washington’s “wise men,” told the committee that the war effort was based on “illusions of invincibility on our part,” as recounted this week by the PBS documentary broadcast about the war.

While that debate raged on, the reality set in that the war being managed by General William Westmoreland would always require more and more young Americans to be signed up for military duty.  There were, of course, many who volunteered, like the former Marine who served there who told his interviewer for the PBS broadcast that he enlisted because he saw himself then as “a star of my own John Wayne movie.”

But the need for “fresh troops,” as the generals put it, could not be filled by volunteers.  The military draft was the only workable option: young men had to be pulled into the ranks by the tens of thousands, whether they wanted to or not, and officials were steadily raising the draft quotas.  The draft itself had become deeply controversial because of who had to go: it was, in the main, the poor and the middle-class youths, mostly those who had only a high-school education and many who were minorities.

Within the ranks of those who were conscripted, the PBS broadcast recalled, there was a bitter refrain about the college boys who were exempted and stayed home: “If you’ve got the dough, you don’t have to go.”

One technique of resistance to the draft was to claim conscientious objection to war and to military service.  The numbers of those seeking “CO” exemptions shot up into the hundreds of thousands in 1966.

One of those seeking such an exemption was an Olympic gold-winning boxer who had become the heavyweight champion, a Kentuckian named Cassius Clay.  A convert to Islam (which brought him a new name, Muhammad Ali), he claimed that he was a pacifist opposed to war. 

Failing to be get an exemption, he refused an order to be inducted.  His heavyweight championship was taken away, he was prosecuted for draft evasion, convicted and given a five-year prison sentence, along with a $10,000 fine.

After he successfully regained his boxing license through a court challenge, Ali’s lawsuit against his draft evasion conviction had finally worked its way up to the Supreme Court.  In late June 1971, after much internal debate and legal maneuvering, the Justices overturned his conviction, concluding that the rejection of his “CO” claim was flawed because it was not clear what the real reason for it had been.

The ruling in Ali’s favor kept him out of the war, but it did nothing at all to settle the question of whether the undeclared war in Vietnam was unconstitutional.  That was not the issue.

Many of the early test cases on the constitutionality question had involved challenges to the draft by those who had been called for duty.  Those cases did, in fact, raise the constitutional question, but in a slightly indirect way.  Congress, those lawsuits asserted, can only institute a military draft during a war that had actually been formally declared by Congress.  This was one step removed from the ultimate question of the war’s validity and, in any event, those lawsuits failed in court.

But parallel to the legal challenges of those called up by the draft was the rise of an organized legal campaign specifically to test the undeclared war question.  It would become the Constitutional Lawyers’ Committee on Undeclared War.

The committee would grow out of efforts that appear to have begun with a lawsuit filed by a young University of Kansas law professor, Lawrence Velvel.  (Later in life, Velvel – something of a legal gladiator -- would establish a law school in Massachusetts that kept its tuition and fees low so as to serve working-class students and he would wage a years-long, but unsuccessful, antitrust lawsuit against the American Bar Association for refusal to give his school an accreditation because of its salary and fee practices.)

Velvel’s lawsuit may have been the first to challenge the Vietnam War’s constitutionality by someone other than a draftee.  He filed his lawsuit soon after the Supreme Court had refused in  May 1968 to hear the case of Albert H. Holmes, a minister of the Jehovah’s Witnesses faith who was one of those who had contested the war through the claim that the draft was invalid.   (Only one member of the court, Justice William O. Douglas, had voted to hear Holmes’ appeal; Justice Douglas did that repeatedly as the challengers’ cases reached the court.)

The Velvel lawsuit – himself against President Johnson – was based on the claim that, as a citizen, he had been injured by the invalid war because it diverted money needed for domestic programs, had caused economic harm to many citizens running businesses, and had summoned his friends and relatives to serve in Vietnam.

Ultimately, his lawsuit failed, on the rationale that he did not have a legal right to sue because he could not demonstrate as a fact that he had been personally injured by the war effort, and thus his grievance was – at most – only one that he shared with many Americans opposed to the war for many reasons.  (In legal terms, Velvel was found to lack “standing,” a doctrine that flows out of the Constitution’s provision that the federal courts can only decide live cases or controversies, with something real at stake, not abstract disagreements about the law.)

The rejection of the professor’s case on that basis was a harbinger of what would follow, in case after case filed to test the Vietnam War’s constitutionality.  But many of those courts also adopted another rationale: the lawsuits against the war could not proceed because there was no legal standard for judging them or because the question of undeclared war was a “political question” left to be worked out by presidents and Congress.

The Justice Department, in case after case, argued that no such case should be allowed to go forward to a final decision on the constitutional question.  For the Supreme Court to take on such a case, the government argued in one of its briefs in the Supreme Court, the Justices themselves would have to take on the task of ending a war it had found to be invalid.

That brief asserted: “The court might have to set up its own office of military affairs and supervise the vast and intricate process of military disengagement.  It might have to provide officials to carry on diplomatic discussions with the North Vietnamese and other governments.”

After Lawrence Velvel’s citizen lawsuit was rejected in a lower court, the challenging lawyers on the Undeclared War Committee then tried to test the constitutional question by putting together a lawsuit of 13 members of the U.S. House of Representatives, suing on the theory that the Vietnam conflict deprived them of their power to vote on a declaration. 

After that failed, the advocates fashioned a lawsuit to be tried directly and only in the Supreme Court under a special grant of power that the Constitution gives to the Justices to resolve cases that mainly involve states’ legal rights.  They got the Massachusetts legislature to pass a law authorizing a lawsuit filed in the Supreme Court against the civilian head of the Pentagon, Defense Secretary Melvin Laird.  Over three Justices’ dissent, the court simply refused to let Massachusetts sue there.  The case was sent back to a lower court, and it failed there, too.

Over all the years that the Supreme Court was being asked to rule on the war’s constitutionality, a period running from 1967 through 1974, four Justices at one time or other voted for review of a case raising that issue.  But it takes four votes for the court to grant review, and at no time did those four vote as a group to put a case before the full court.

As Texas Tech professor Schoen found in his study of the Vietnam lawsuits, 26 of those had been taken to the Supreme Court and none of them had been decided; all but one of them was simply turned aside without review, and that one was dispatched on a procedural rationale. 

The professor summed up: “In practical effect, the court’s silence approved the government’s war policies but withheld specific judicial approval in a decision favoring the government on the merits.”  His article, published in 1994, 21 years after the Vietnam war ended, concluded that “little has changed” since then, adding: “Constitutional questions avoided by the Supreme Court’s strange silence…remain unanswered by the court to this day.”

And now, nearly a quarter century after he drew those conclusions, that legacy of the Vietnam conflict still stands.  In those years, presidents have repeatedly sent U.S. military forces into conflicts that had all the characteristics of genuine war, and did so without asking Congress beforehand for permission.

In a later article, this series will explore the effort that Congress made in the War Powers Resolution in 1973 to try to force presidents – after they had started hostilities – to report to Congress on what was going on.  Presidents have said that they think even that minimal demand by Congress is an infringement on presidential war power, but have reluctantly agreed to file the required reports.  Doing so has cost them none of the authority that President Johnson claimed when he turned the Vietnam conflict into an actual war.

After a new kind of war arrived for America, in the “war on terror,” the two resolutions enacted by Congress after the 2001 terrorist attacks on the U.S. handed the response once again to the occupant of the White House.  And the Supreme Court has not even been asked to judge whether the Constitution demanded more of Congress. 

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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