UNITED STATES of
America, v. James ST. CLAIR, Defendant
No. 68 Cr. 281
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
291 F. Supp. 122; 1968 U.S.
Dist. LEXIS 9242
August 2, 1968
Morgenthau, U.S. Atty., Southern Dist. of New
York, for the United States; John R. Robinson,
Asst. U.S. Atty., of counsel.
Lubell, New York, New York, for defendant;
Stephen L. Fine, New York, New York, of counsel.
Bonsal, District Judge.
[*123] BONSAL, District Judge.
On March 28,
1968, defendant James St. Clair was charged in a
three-count Grand Jury indictment with violating
the Military Selective Service Act of 1967
(formerly the Universal Military Training and
Service Act, as amended), 50 U.S.C. App. @ 451 et
seq. (the Act). The three counts of the
indictment charge that defendant failed and
refused (1) to submit to registration, (2) to
have his Registration Certificate in his
possession at all times, and (3) to complete the
questionnaire which had been mailed to him by his
Selective Service Local Board.
moves, pursuant to Rule 12(b)(4), F.R.Crim.P.,
for a jury hearing on the facts necessary to show
that the draft system established under the Act
is unnecessary and therefore unconstitutional.
Defendant further moves to dismiss the indictment
on the grounds that:
1) the Act
is unconstitutional in that it subjects [**2]
defendant to involuntary servitude in violation
of his rights under the Thirteenth Amendment;
2) the Act
is unconstitutional in that it makes an invidious
discrimination on the basis of sex in violation
of the defendant's right under the Fifth
Amendment to due process of law; and
States participation in the war in Vietnam
violates international and domestic law.
MOTION FOR A
contends that the evidence he would offer at a
jury hearing would establish that the draft is
unnecessary since it could be replaced by an
allvolunteer military force, and that, being
unnecessary, the draft constitutes an
unconstitutional infringement upon defendant's
personal liberties. In his PAGE 3 291 F.
Supp. 122, *123; 1968 U.S. Dist. LEXIS 9242, **2
defendant refers to the testimony of the
Assistant Secretary of Defense at hearings in
June 1966 before the House Committee on Armed
Services. The Assistant Secretary described a
study of the draft made by the Department of
Defense, in which a major objective was to assess
the possibility of meeting military manpower
requirements on a voluntary basis. While this
study indicated that an all-volunteer army was
"theoretically possible," the Assistant
Secretary testified that [**3] "other
changes and techniques do not appear collectively
to be able to meet the deficit anticipated under
an all-volunteer force." (Committee on Armed
Services, House of Representatives, 89th
Congress, 2d Session, June 22-24, 28-30, 1966,
pp. 9923, 9938-40.) Congress did not establish an
all-volunteer force and -
of Congress to classify and conscript manpower
for military service is 'beyond question.'
Lichter v. United States, supra, 334 U.S. [742,]
at 756, 68 S. Ct. [1294,] 1302, 92 L. Ed. 1694
; Selective Draft Law Cases, supra [245
U.S. 366] . Pursuant to this power,
Congress may establish a system of registration
for individuals liable for training and service,
and may require such individuals within reason to
cooperate in the registration system."
United States v. O'Brien, 391 U.S. 367, 88 S. Ct.
1673, 20 L. Ed. 2d 672 (May 27, 1968).
authority of Congress arises from the
Constitution, which empowers it "to raise
and support Armies * * * to provide and maintain
a Navy," (Article I, Section 8, Clauses 12
and 13), and the courts may not review Congress's
determination as to how its power shall be [*124]
exercised. Bertelsen [**4] v. Cooney, 213 F 2d
275 (5th Cir.), cert. denied, 348 U.S. 856, 75 S.
Ct. 81, 99 L. Ed. 674 (1954); cf. Korte v. United
States, 260 F.2d 633 (9th Cir. 1958), cert.
denied, 358 U.S. 928, 79 S. Ct. 313, 3 L. Ed. 2d
301 (1959); Clark v. United States, 236 F.2d 13
(9th Cir.), cert. denied, 352 U.S. 882, 77 S. Ct.
101, 1 L. Ed. 2d 80 (1956).
not there is a better alternative to the draft
which might render it unnecessary is a matter for
determination by the Congress. This court does
not have power to "conclude that there was a
better method of providing for the needed
national defense than the one chosen by the
national legislature * * * [and] to conclude that
the availability of this better way rendered
unnecessary and therefore unconstitutional, the
method chosen by Congress." United States v.
Butler, 389 F.2d 172, 176 (6th Cir.), cert.
denied, 390 U.S. 1039, 88 S. Ct. 1636, 20 L. Ed.
2d 300 (April 29, 1968).
reasons, defendant is not entitled to a jury
DISMISS THE INDICTMENT
Thirteenth Amendment (Prohibiting Involuntary
contends that the Act subjects him to involuntary
servitude in violation [**5] of his rights under
the Thirteenth Amendment, which provides in
Section 1, "Neither slavery nor involuntary
servitude, except as a punishment for crime * * *
shall exist within the United States, or any
place subject to their jurisdiction."
However, the Thirteenth Amendment does not
restrict the power of Congress to raise and
support armies under Article I, Section 8 of the
Constitution. See Hesse v. Resor, 266 F. Supp. 31
(E.D.Mo.1966); Baldauf v. Nitze, 261 F. Supp. 167
(S.D.Cal.1966); United States v. Smith, 124 F.
Supp. 406 (E.D.Ill.1954), aff'd sub nom. United
States v. Hoepker, 223 F.2d 921 (7th PAGE 4
291 F. Supp. 122, *124; 1968 U.S. Dist. LEXIS
9242, **5 LEXSEE
denied, 350 U.S. 841, 76 S. Ct. 81, 100 L. Ed.
750 (1955); United States v. Tomlinson, 94 F.
Supp. 854 (E.D.Pa.1950.) As pointed out in
Baldauf v. Nitze, supra, 261 F. Supp. at 173:
servitude has never been construed as pertaining
to the military service. That term in the
Thirteenth Amendment includes only those forms of
labor such as peonage."
Cox v. Wood, 247 U.S. 3, 38 S. Ct. 421, 62 L. Ed.
947 (1918); Selective Draft Law Cases, 245 U.S.
366, 62 L. Ed. 349, 38 S. Ct. 159 (1918); United
States v. Brooks, 54 F. Supp. 995 (S.D.N.Y.1944),
[**6] aff'd, 147 F.2d 134 (2d Cir.), cert.
denied, 324 U.S. 878, 65 S. Ct. 1027, 89 L. Ed.
1430 (1945). Accordingly, Congress may provide
for the draft for the national defense whether or
not it has declared war. See United States v.
Hogans, 369 F.2d 359 (2d Cir. 1966); Etcheverry
v. United States, 320 F.2d 873 (9th Cir.), cert.
denied, 375 U.S. 930, 84 S. Ct. 331, 11 L. Ed. 2d
263 (1963); United States v. Henderson, 180 F.2d
711 (7th Cir.), cert. denied, 339 U.S. 963, 70 S.
Ct. 997, 94 L. Ed. 1372 (1950); United States v.
Lambert, 123 F.2d 395 (3d Cir. 1941); United
States v. Herling, 120 F.2d 236 (2d Cir. 1941).
contends that the Act makes an invidious
discrimination based upon sex in violation of his
right to due process of law under the Fifth
Amendment. Defendant argues that men are denied
equal protection of the laws in being compelled
to serve in the Armed Forces when women are not
so compelled. See Bolling v. Sharpe, 347 U.S.
497, 74 S. Ct. 693, 98 L. Ed. 884 (1954).
Defendant points out that Congress has
established women's corps in the various branches
of the Armed Forces and therefore urges that
Congress has treated the sexes equally [**7] with
respect to their ability to serve in the Armed
In the Act
and its predecessors, Congress made a legislative
judgment that men should be subject to
involuntary induction but that women, presumably
because they are "still regarded as the
center of home and family life" (Hoyt v.
State of Florida, 368 U.S. 57, 62, 82 S. Ct. 159,
162, 7 L. Ed. 2d 118 (1961)), [*125] should not.
Women may constitutionally be afforded
"special recognition" (cf. Gruenwald v.
Gardner, 390 F.2d 591, 592 (2d Cir. 1968)),
particularly since women are not excluded from
service in the Armed Forces. Compare Hoyt v.
State of Florida, supra, with White v. Crook, 251
F. Supp. 401 (M.D.Ala.1966).
for involuntary service for men and voluntary
service for women, Congress followed the
teachings of history that if a nation is to
survive, men must provide the first line of
defense while women keep the home fires burning.
Moreover, Congress recognized that in modern
times there are certain duties in the Armed
Forces which may be performed by women
volunteers. For these reasons, the distinction
between men and women with respect to service in
the Armed Forces is not arbitrary, unreasonable
[**8] or capricious. See generally Goesaert v.
Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed.
163 (1948); West Coast Hotel Co. v. Parrish, 300
U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937).
of the war in Vietnam
defendant moves to dismiss the indictment on the
grounds that United States participation in the
war in Vietnam violates domestic and PAGE 5
291 F. Supp. 122, *125; 1968 U.S. Dist. LEXIS
9242, **8 LEXSEE
legality of the war in Vietnam under domestic and
international law has been considered from a
variety of viewpoints (see, e.g., Note, Congress,
The President, and the Power to Commit Forces to
Combat, 81 Harv.L.Rev. 1771 (1968); Wright, Legal
Aspects of the Viet-Nam Situation, 60 Am.J.Int'l
L. 750 (1966); Symposium - Legality of United
States Participation in the Viet Nam Conflict, 75
Yale L.J. 1084 (1966)), the contention that the
war is illegal is not a defense to a prosecution
for violating the Act. United States v. Mitchell,
369 F.2d 323 (2d Cir. 1966), cert. denied, 386
U.S. 972, 87 S. Ct. 1162, 18 L. Ed. 2d 132
(1967). "The courts will not examine the
purposes for which the executive employs the
armed forces in foreign military operations"
(United States v. Hogans, 369 F.2d 359, 360 [**9]
(2d Cir. 1966); United States v. Bolton, 192 F.2d
805 (2d Cir. 1951)), and it is immaterial that
those purposes may be unpopular in many quarters.
motion for a jury hearing and to dismiss the
indictment is denied.
It is so