MCARTHUR ET AL.
v.
CLIFFORD, SECRETARY OF DEFENSE, ET AL.

U.S. | 1968-12-16
No. 613
393 U.S. 1002 Supreme Court of the United States (1968) Negative Treatment
Cited by 6 cases
Topics
Constitutional Law Separation Of Powers

Explore caselaw by topic → Browse Constitutional Law cases and more on FLexlaw

Dissent
Mr. Justice Douglas,

Mr. Justice Douglas,

dissenting.

I dissent from a denial of certiorari in this ease. An important unresolved constitutional issue of immediate importance to many Americans is involved. It is whether men may be sent abroad to fight in a war which has not been declared by Congress. This is a point on which I wrote rather elaborate dissents in Holmes v. United States, 391 U. S. 936, and Hart v. United States, 391 U. S. 956. This certainly is a substantial question and one which has never been resolved by this Court.

The question of the power of the President to conduct a war without a declaration of war was raised in the Prize Cases, 2 Black 635, during the Civil War. That was an internal insurrection which would perhaps be analogous here if the Vietnamese were invading the United States.

It was a five-to-four decision, upholding Presidential power. Would it have been the same if Lincoln had had an expeditionary force fighting a “war” overseas?

There should not be the slightest doubt that whenever the Chief Executive of the country takes any citizen by the neck and either puts him in prison or subjects him to some ordeal or sends him overseas to fight in a war, the question is a justiciable one. To call issues of that kind “political” would be to abdicate the judicial function which the Court honored in the midst of the Civil War in the Prize Cases.

The spectre of executive war-making is an ominous threat to our republican institutions. What can be done in Vietnam can be done in many areas of this troubled world without debate or responsible public decision.

I would put the case down for argument and resolve this important constitutional problem.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Sarnoff v. Shultz, 409 U.S. 929 (U.S. 1972)
    …. * I have previously filed dissents in various cases tendering this question, the Court having consistently refused to entertain them. See, e. g., Holmes v. United States, 391 U. S. 936; Hart v. United States, 391 U. S. 956; McArthur v. Clifford, 393 U. S. 1002.…
  • Mottola v. Nixon, 464 F.2d 178 (9th Cir. 1972)
    …ce Douglas dissented to the Court’s denial of the writ of certiorari in: Massachusetts v. Laird, 400 U.S. 886, 91 S.Ct. 128, 27 L.Ed.2d 130 (1970) [*183] (challenge to the participation of the United States in the Vietnam war); McArthur v. Clifford, 393 U.S. 1002, 89 S. Ct. 487, 21 L.Ed.2d 466 (1968) (challenge to the legality of an undeclared war); Hart v. United States, 391 U.S. 956, 88 S.Ct. 1851, 20 L.Ed.2d 871 (1968) (defense of illegality of draft in peacetime to convictions for failure to report for c…
  • Holtzman v. Schlesinger, 414 U.S. 1316 (U.S. 1973)
    …at I think any judge would do in a capital case — vacate the stay entered by the Court of Appeals. It is so ordered. † Sarnoff v. Shultz, 409 U. S. 929; DaCosta v. Laird, 405 U. S. 979; Massachusetts v. Laird, 400 U. S. 886; McArthur v. Clifford, 393 U. S. 1002; Hart v. United States, 391 U. S. 956; Holmes v. United States, 391 U. S. 936; Mora v. McNamara, 389 U. S. 934, 935; Mitchell v. United States, 386 U. S. 972.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw