The Army Clause, Part 4: Role in Individual Rights Cases

The Army Clause, Part 4: Role in Individual Rights Cases

Legal Sidebari

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 Army 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
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Congress’[s] constitutional power in this area broad, but the lack of competence on the part of the courts
is marked.”
In another case implicating congressional power to raise armies through conscription, the Supreme Court
addressed a provision in the Military Selective Service Act that denied certain federal financial assistance
for higher education to students who failed to register for the draft. In Selective Service System v.
Minnesota Public Interest Research Group, a 1984 case, a group of students contended that the law
violated their Fifth Amendment right against self-incrimination and was an unconstitutional bill of
attainder. The Supreme Court rejected the Fifth Amendment argument based upon the reasoning that the
students were “under no compulsion to seek financial aid” and could have avoided self-incrimination
issues by declining to apply for aid that required certification about draft registration. The Court likewise
rejected the bill of attainder claim on the grounds that bills of attainder punish individuals without a
judicial trial, but the purpose of the Military Selective Service Act provision was to encourage registration
for the draft, not punish nonregistrants.
The Supreme Court addressed another federal funding restriction in a 2006 case, Rumsfeld v. Forum for
Academic and Institutional Rights, Inc. Rumsfeld concerned a federal law that denies certain funding to
higher education institutions that do not provide military recruiters the same access to recruitment events
as other potential employers. An association of law schools and faculties challenged the law, arguing that
the funding restriction violated its members’ First Amendment freedoms of speech and association
because some members wished to bar on-campus military recruiters due to objections over the
government’s now-repealed “don’t ask, don’t tell” policy on homosexual servicemembers in the military.
Observing that judicial deference is at a high point when Congress enacts legislation using its Army
Clause authority, the Rumsfeld Court held that Congress could require law schools to provide equal access
to military recruiters without infringing on First Amendment freedoms.
Click here to continue to Part 5.

Author Information

Steve P. Mulligan

Attorney-Adviser

Disclaimer
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