United States v. O'Brien/Dissent Douglas
MR. JUSTICE DOUGLAS, dissenting.
The Court states that the constitutional power of Congress to raise and support armies is "broad and sweeping", and that Congress' power "to classify and conscript manpower for military service is ‘beyond question.'" This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war.  That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States, post, p. 936, the nature of the legal issue, and it will be seen from my dissenting opinion in that case that this Court has never ruled on [p390] the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, post, p. 956, in which the Court today denies certiorari. 
The rule that this Court will not consider issues not raised by the parties is not inflexible, and yields in "exceptional cases" (Duignan v. United States, 274 U.S. 195, 200) to the need correctly to decide the case before the court. E.g., Erie R. Co. v. Tompkins, 304 U.S. 64; Terminiello v. Chicago, 337 U.S. 1.
In such a case, it is not unusual to ask for reargument (Sherman v. United States, 356 U.S. 369, 379, n. 2, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U.S. 217, the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner's case. 362 U.S. at 219, n., par. 1; 359 U.S. 940. In Lustig v United States, 338 U.S. 74, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U.S. 383; Byars v. United States, 273 U.S. 28). The Court ordered reargument on the question raised in a then pending case, Wolf v. Colorado, 338 U.S. 25: applicability of the Fourth Amendment to the States. U.S.Sup.Ct. Journal, October Term, 1947, p. 298. In Donaldson v. Read Magazine, 333 U.S. 178, the only issue presented, [p391] according to both parties, was whether the record contained sufficient evidence of fraud to uphold an order of the Postmaster General. Reargument was ordered on the constitutional issue of abridgment of First Amendment freedoms. 333 U.S. at 181-182; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U.S. 95, 96, reargument was ordered on the question of unconstitutional vagueness of a criminal statute, an issue not raised by the parties but suggested at oral argument by Justice Jackson. Journal, October Term, 1947, p. 87.
These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States.
^ . Neither of the decisions cited by the majority for the proposition that Congress' power to conscript men into the armed services is "‘beyond question'" concerns peacetime conscription. As I have shown in my dissenting opinion in Holmes v. United States, post, p. 936, the Selective Draft Law Cases, 245 U.S. 366, decided in 1918, upheld the constitutionality of a conscription act passed by Congress more than a month after war had been declared on the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U.S. 742, concerned the constitutionality of the Renegotiation Act, another wartime measure, enacted by Congress over the period of 1942-1945 (id. at 745, n. 1) and applied in that case to excessive war profits made in 1942-1943 (id. at 753). War had been declared, of course, in 1941 (55 Stat. 795). The Court referred to Congress' power to raise armies in discussing the "background" (334 U.S. at 753) of the Renegotiation Act, which it upheld as a valid exercise of the War Power.
^ . Today the Court also denies stays in Shiffman v. Selective Service Board No. 5, and Zigmond v. Selective Service Board No. 16, post, p. 930, where punitive delinquency regulations are invoked against registrants, decisions that present a related question.