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33 Washburn L.J. 275 (1993-1994)
A Strange Silence: Vietnam and the Supreme Court

handle is hein.journals/wasbur33 and id is 297 raw text is: A Strange Silence: Vietnam and the Supreme Court Rodric B. Schoen* I. INTRODUCTION Unlike American military operations in Grenada, Panama, and the Persian Gulf, the Vietnam War was neither short nor popular. The Vietnam War continued from the latter part of 1964 into 1973,1 and during these years the lower federal courts were obliged to con- sider many suits claiming that the war was unconstitutional. Although every federal court that considered the question held in favor of the Government for one reason or another, the Supreme Court-despite many opportunities-never reviewed any case presenting the ques- tion. The Vietnam War and its attendant domestic strife finally ended without a single Supreme Court decision on whether the war was con- stitutional, or whether the question of constitutionality presented a nonjusticiable controversy. In sum, the Court never said anything at all concerning the Vietnam War. True, the Court did decide important cases generated by the war. Most lawyers are familiar with the O'Brien, Tinker and Pentagon Pa- pers cases,2 to mention only significant First Amendment decisions whose facts concerned the war. But the Court declined review of every case presenting claims that the war and conscription in aid of the war were unconstitutional. Denied the privilege of discretionary review, the lower federal courts could not avoid decisions on claims that the war was unconstitutional, but whether these lower court deci- sions were right was never addressed by the Supreme Court. Was the war unconstitutional or unlawful? Was conscription dur- ing the war unconstitutional or unlawful because it facilitated an un- constitutional war, or because Congress had not declared war? Are the preceding questions nonjusticiable? The Court never answered these questions, nor will these questions be explored here. Rather, the Court's strange silence on these questions is the subject of this * Charles B. Thornton Professor of Law, Texas Tech University; B.A., University of Colo- rado; J.D., University of New Mexico. 1. For purposes of this article, the Vietnam War began in August 1964, when North Vietnamese patrol boats attacked an American warship in the Gulf of Tonkin and President Johnson ordered retaliatory bombing of military targets in North Vietnam. MICHAEL MACLEAR, THE TEN THOUSAND DAY WAR 111-12 (1981). Congress then approved the Tonkin Gulf Reso- lution, which authorized the President to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression. Southeast Asia Reso- lution, H.R.J. Res. 1145, 88th Cong., 2d Sess., 78 Stat. 384 (1964). The first American combat personnel were deployed in South Vietnam in March 1965. MACLEAR, supra at 128. The last American combat personnel were withdrawn from South Vietnam on March 29, 1973. Id. at 312. 2. United States v. O'Brien, 391 U.S. 367 (1968); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969); New York Times Co. v. United States (Pentagon Papers Case), 403 U.S. 713 (1971).

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