1970 June 19

Legality of Vietnam War a “Political Question,” Not a Constitutional Issue


Malcolm Berk had been ordered to report to Fort Dix for dispatch to Vietnam. He challenged the order, arguing that there had been no Congressional declaration of war for the Vietnam War as required by the Constitution. In Berk v. Laird, the Second Circuit Court of Appeals, upholding the District Court, ruled on this day that the decision to go to war was a “political question” and not a matter of constitutional law. For other challenges to the constitutionality of the Vietnam War, see Massachusetts v. Laird (April 2, 1970; November 9, 1970).

The Gulf of Tonkin Resolution, which the court used to dismiss the case, was passed by Congress on August 7, 1964. The state of Massachusetts on April 2, 1970 declared the war unconstitutional because of the lack of the Congressional declaration of war, and the ACLU adopted a similar policy on June 3, 1970.

The Vietnam War created a number of civil liberties crises. They include (1) the lack of a Congressional Declaration of War as required by the Constitution (June 3, 1970); (2) threats to freedom of the press in the Pentagon Papers case (June 30, 1971); (3) spying on the anti-war movement by the CIA (August 15, 1967); (4) threats to freedom of expression, for example high school student protests (February 24, 1969); censorship of television programs (February 25, 1968); and directly and indirectly some of the events that led to the Watergate Scandal (May 9, 1969; January 27, 1972).

The Court: “ . . . Congress definitely has acted, in part expressly through the Gulf of Tonkin Resolution and impliedly through appropriations and other acts in support of the project over a period of years . . . .”

Learn more: Peter Irons, War Powers: How the Imperial Presidency Highjacked the Constitution (2005)

Learn more about the anti-Vietnam War movement: Thomas Powers, The War at Home: Vietnam and the American People, 1964–1968 (1973)

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