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UNITED STATES v. COOK

March 31, 1970

UNITED STATES of America
v.
Carmen Stephen COOK


Rosenberg, District Judge.


The opinion of the court was delivered by: ROSENBERG

The motion of the defendant, Carmen Stephen Cook, is here before me seeking the dismissal of the indictment which charges him with failure to report for and submit to induction in violation of § 12(a) of the Military Selective Service Act (the Act), 50 U.S.C. App. § 462(a). *fn1"

 The indictment charges that on or about August 26, 1968, the defendant, a registrant with Local Board No. 87 at New Castle, Pennsylvania, did wilfully and knowingly fail to report for and submit to induction into the armed forces of the United States. Counsel for the defendant and the Assistant United States Attorney stipulated that the issues in this case be submitted to the Court on briefs and the right to present oral arguments be waived.

 The defendant raises two arguments in support of his motion: First, that the Ninth Amendment to the Constitution guarantees his right to his own life; and second, that the induction statute is unconstitutional in that it lacks uniformity because it provides for the induction of a limited age group of males and does not provide for the induction of women into the Armed Services on the same basis as it provides for induction of men into the Services.

 It is provided in the Ninth Amendment that, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

 The defendant asserts that the "right to ones own life" is the most fundamental of all rights guaranteed by this amendment. Our courts have had little occasion to interpret the provisions of this amendment. See Bennett B. Patterson (1955), The Forgotten Ninth Amendment. However, in his concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), Mr. Justice Goldberg focused considerable attention on the provisions of this amendment and concluded that "* * * as the Ninth Amendment expressly recognizes, there are fundamental personal rights * * * which are protected from abridgment by the Government though not specifically mentioned in the Constitution." 381 U.S. at 496, 85 S. Ct. at 1688. The purpose of the Ninth Amendment is therefore to guarantee to individuals those rights inherent to citizenship in a democracy which are not specifically enumerated in the Bill of Rights.

 However, the people granted to Congress many powers which permit it to abridge the rights of individuals.

 
"To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war." United States v. Macintosh, 283 U.S. 605, 622, 51 S. Ct. 570, 574, 75 L. Ed. 1302 (1931).

 There does exist,

 
"* * * a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, - especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S. Ct. 358, 362, 49 L. Ed. 643 (1905).

 While the right to live and work is recognized, an individual "* * * may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense." 197 U.S. at 29, 25 S. Ct. at 362.

 Although Congress may impose many limitations upon individual liberties in the just exercise of its "war power", this power is not without limitation. United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967). However, these limitations do not include a prohibition upon the right of Congress to create military forces through a conscriptive system. United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), rehearing denied 393 U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968); United States v. Robel, supra; Lichter v. United States, 334 U.S. 742, 68 S. Ct. 1294, 92 L. Ed. 1694 (1948); Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942).

 For these reasons, the contention of the defendant that the Act violates his rights as guaranteed by the Ninth Amendment, is without merit.

 The second ground for dismissal of the indictment upon which the defendant relies is that the Military Service Act of 1967 is unconstitutional because it deprives the defendant of his liberty without "equal protection of the law." The concept of "equal protection" has its origin in the Fourteenth Amendment, *fn2" and is not applicable to the federal government. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Simpson v. United States, 342 F.2d 643, C.A. 7, 1965. ...


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