U.S. military effort designed to aid South Vietnam in its fight against North Vietnam, a communist country.
The Vietnam War’s length and controversial nature raised various constitutional questions. Appeals to the Supreme Court included cases pertaining to the freedom of speech, the relationship between the free exercise clause and military conscription, freedom of the press, and the constitutionality of the U.S. military effort in Vietnam. In some cases, the Court established new precedents and in others, refused to accept a case, often citing the doctrine of political questions.
The Supreme Court ruled on a number of issues regarding freedom of speech of antiwar activists, such as the group pictured here. It did not, however, rule on the constitutionality of the war itself.
One year later, however, the Court ruled in favor of high school and junior high school students who used symbolism to protest against the Vietnam War in Tinker v. Des Moines Independent Community School District
What was somewhat surprising in the Tinker case was the dissenting opinion of Justice Hugo L. Black. Earlier in his career on the Court, Black was often identified as an
In Cohen v. California
After expanding and diversifying legitimate grounds for conscientious objector status, the Court further clarified, and then limited this expansion in Gillette v. United States
The most significant Court decision about the relationship between the Vietnam War and freedom of speech was New York Times Co. v. United States
Although the Court generally strengthened the protection of First Amendment freedoms in the cases related to the Vietnam War, it repeatedly refused to rule on the war’s constitutionality. Although Congress had never declared war against North Vietnam, it did adopt the Gulf of Tonkin Resolution of 1964, a joint resolution that gave the president broad, discretionary power to conduct war in Southeast Asia. The Court refused to grant writs of certiorari and review the lower court cases of Holtzman v. Schlesinger
Associate Justice William O. Douglas was the most emphatic, determined justice who wanted the Court to grant certiorari and rule on the constitutionality of the Vietnam War. He took the unusual action of writing an opinion criticizing the Court’s denial of certiorari in Massachusetts v. Laird. However, most justices believed that the existence and conduct of the war were political questions,
The constitutional legacy of major Court decisions related to the Vietnam War is that they provided important, influential precedents for future cases, especially for freedom of speech cases that did not pertain to expressions of protest over foreign and defense policy. For example, the Court partially relied on the O’Brien precedent to uphold a public indecency and nudity law in Barnes v. Glen Theatre
Regarding the more specific issues of whether public or congressional acts of opposition to certain U.S. foreign policy decisions are unconstitutional, the Court has generally followed the Vietnam War-era practice of holding such disputes to be nonjusticiable political questions. In Goldwater v. Carter
In The Constitution and American Foreign Policy (St. Paul, Minn.: West Publishing, 1989), Jean E. Smith provides a collection of major Court decisions about the Vietnam War and other foreign policy issues. Frederick L. Borch’s Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (Washington, D.C.: Office of the Judge Advocate General and Center of Military History, United States Army, 2001) is an official government account of how military attorneys performed in foreign actions including the Vietnam War. Samuel Walker’s In Defense of American Liberties (New York: Oxford University Press, 1990) details the role the American Civil Liberties Union played in major Vietnam War-related cases, especially Tinker. The Brethren (New York: Simon & Schuster, 1979), by Bob Woodward and Scott Armstrong, is an excellent, detailed analysis of the Supreme Court, including actions during the Vietnam War. David M. O’Brien’s book Storm Center: The Supreme Court in American Politics (7th ed. New York: W. W. Norton, 2005) examines several key cases related to the Vietnam War. The constitutional law textbooks, Sheldon Goldman’s Constitutional Law: Cases and Essays (New York: HarperCollins, 1991) and Ralph A. Rossum and G. Alan Taer’s American Constitutional Law (New York: St. Martin’s Press, 1991) provide examples of Court cases related to Vietnam War issues. The related topics of justiciability and the doctrines of political questions are examined in Philippa Strum’s The Supreme Court and Political Questions (Tuscaloosa: University of Alabama Press, 1974) and Alexander M. Bickel’s The Least Dangerous Branch (Indianapolis, Ind.: Bobbs-Merrill, 1962). Reporting Vietnam: American Journalism, 1959-1975 (New York: Library of America, 2000), with an introduction by Ward Just, is a collection of important journalistic writings from the war.
Certiorari, writ of
Cohen v. California
Foreign affairs and foreign policy
New York Times Co. v. United States
O’Brien, United States v.
Speech and press, freedom of
Tinker v. Des Moines Independent Community School District
War and civil liberties
War Powers Act of 1973