![handle is hein.crs/goveqaz0001 and id is 1 raw text is: The Army Clause, Part 4: Role in Individual
Rights Cases
July 22, 2024
This Legal Sidebar post is the fourth in a five-part series that discusses the Constitution's Armv Clause,
which authorizes the federal government to raise and support armies while also allowing for
congressional control through the appropriations process. Because the Army Clause provides Congress
with an essential element of the United States' suite of war powers, understanding the Army Clause may
assist Congress in its legislative activities.
This Sidebar post analyzes the relationship between the Army Clause and individual rights guaranteed
under the Constitution. Other Sidebars in this series discuss the clause's historical backdrop; drafting and
ratification history; relationship with appropriations, conscription, and war materials; and connection with
principles of federalism. Additional information on this and related topics is available at the Constitution
Annotated.
Congressional power under the Army Clause has sometimes come into tension with individual rights
afforded under the Constitution. For instance, Congress has provided accommodations for individuals
with religious objections from being subject to armed forces' combatant training and service through a
statute exempting those conscientiously opposed to participation in war in any form from the draft.
Although the conscientious objector statute states that it only applies to objections derived from religious
training and belief' and not those based upon political, sociological, or philosophical views, the
Supreme Court has interpreted the exemption to apply to both theistic and nontheistic opposition.
In the context of freedom of speech and expression, the Supreme Court addressed an antiwar protestor's
First Amendment challenge to his conviction for violating a federal statute that prohibited the knowing
destruction of draft cards in the 1968 case United States v. O 'Brien. Observing that Congress's power to
classify and conscript manpower for military service is 'beyond question[,]' the Court in O'Brien
concluded that the government's interest in insuring the continuing availability of draft cards was
sufficiently substantial to overcome the First Amendment objections of the protestor who burned his draft
card during an antiwar demonstration, and that the statute was narrowly tailored to meet that interest.
In Rostker v. Goldberg, decided in 1981, the Supreme Court rejected a suit contending the requirement
that males but not females register for potential military service violated the Constitution's Equal
Protection principles. The Court reasoned that the judicial branch should defer to Congress's choices on
which portions of the population should be subject to military service because [n]ot only is the scope of
Congressional Research Service
https://crsreports.congress.gov
LSB11207
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/goveqaz0001&div=1&collection=&method=preview&ext=.png&size=3)
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