Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
Washington, DC-area Freepers interested in Lincoln and/or the War Between the States should take note of a seminar held later today on the Fairfax campus of George Mason University:
The conventional wisdom in America is that Abraham Lincoln was a great emancipator who preserved American liberties. In recent years, new research has portrayed a less-flattering Lincoln that often behaved as a self-seeking politician who catered to special interest groups. So which is the real Lincoln?
On Wednesday, April 16, Thomas DiLorenzo, a former George Mason University professor of Economics, will host a seminar on that very topic. It will highlight his controversial but influential new book, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War. In the Real Lincoln, DiLorenzo exposes the conventional wisdom of Lincoln as based on fallacies and myths propagated by our political leaders and public education system.
The seminar, which will be held in Rooms 3&4 of the GMU Student Union II, will start at 5:00 PM. Copies of the book will be available for sale during a brief autograph session after the seminar.
The powers not given to the Federal government are reserved to the States, or to the People.
The Supreme Court ruled in the Prize Cases that the whole executive power rests with the president. And earlier the Court had ruled:
"Among the enumerated powers, we do not find that of establishing a bank or of creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares that the powers "not delegated to the United States, nor prohibited to the states are reserved to the states or to the people," thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair reading of the whole instument."
Your little tenth amendment one-note band is just sour grapes.
President Lincoln's actions were approved by the Congress, the Courts and the people.
Walt
Ex post facto.
Lincoln was taken to task at the time by a meeting organized to protest Lincoln's suspension of the Writ. He responded in June, 1863:
"Ours is a case of Rebellion -- so called by the resolutions before me -- in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the Constitution that "The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public safety may require it," is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary Courts of justice are inadequate to "Cases of Rebellion" -- attests their purpose that, in such cases, men may be held in custody whom the Courts, acting on ordinary rules, would discharge. Habeas Corpus does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the Constitution on purpose that men may be arrested and held, who can not be proved to be guilty of defined crime, "when, in cases of Rebellion or Invasion, the public Safety may require it." This is precisely our present case, a case of Rebellion, wherein the public safety does require the suspension. Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime; while the latter is directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail, in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive, and less for the vindictive, than the former-- In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood.If not hindered, he is sure to help the enemy. Much more, if he talks ambiguously -- talks for his country with "buts" and "ifs" and "ands". Of how little value the constitutional provision I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples.
General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, 2 General William B. Preston, General Simon B. Buckner, and Comodore Franklin Buchanan,3 now occupying the very highest places in the rebel war service, were all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on Habeas Corpus, were the writ allowed to operate. In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.
By the third resolution the meeting indicated their opinion that military arrests may be constitutional in localities where rebellion actually; exists; but that such arrests are unconstitutional in localities where rebellion, or insurrection, does not actually exist. They insist that such arrests shall not be made "outside of the lines of necessary military occupation, and the scenes of insurrection." In asmuch, however, as the constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them -- as well in places to which they may prevent the rebellion extending, as in those where it may be already prevailing -- as well where they may restrain mischievious interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be -- as well where they may restrain the enticing men out of the army, as when they would prevent mutiny in the army -- equally constitutional at all places where they will conduce to the public safety, as against the dangers of Rebellion or Invasion. Take the particular case mentioned by the meeting. They assert in substance that Mr. Vallandigham was by a Military Commander, seized and tried "for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of that general." Now, if there be no mistake about this -- if this assertion is the truth and the whole truth -- if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the Military Constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mistake of fact, which I would be glad to correct, on reasonably satisfactory evidence.
I understand the meeting,whose resolutions I am considering, to be in favor of suppressing the rebellion by military force -- by armies. Long experience has shown that armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the Constitution, sanction this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.
If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of Rebellion or Invasion, the public safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them; -- in other words, that the constitution is not, in it's application, in all respects the same, in cases of Rebellion or Invasion, involving the public safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.
Nor am I able to appreciate the danger, apprehended by the meeting, that the American People will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas Corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them through the remainder of his healthful life.
In giving the resolutions that earnest consideration which you request of me, I cannot overlook the fact that the meeting speak as "Democrats"; nor can I, with full respect for their known intelligence, and the fairly presumed deliberation with which they prepared their resolutions, be permitted to suppose that this occurred by accident, or in any way other than that they preferred to designate themselves "Democrats" rather than "American Citizens." In this time of national peril I would have preferred to meet you upon a level one step higher than any party platform; because I am sure that from such more elevated position, we could do better battle for the country we all love, than we possibly can from those lower ones where, from the force of habit, the prejudices of the past, and selfish hopes of the future, we are sure to expend much of our ingenuity and strength in finding fault with, and aiming blows at each other. But since you have denied me this, I will yet be thankful, for the country's sake, that not all democrats have done so. He, on whose discretionary judgment Mr. Vallandigham was arrested and tried,4 is a democrat, having no old party affinity with me; and the judge who rejected the constitutional view -- expressed in these resolutions, by refusing to discharge Mr. V. on Habeas Corpus,5 is a democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those democrats who are nobly exposing their lives and shedding their blood on the battle field, I have learned that many approve the course taken with Mr. Vallandigham while I have not heard of a single one condemning it. I can not assert that there are none such.
And the name of President Jackson recalls a bit of pertinent history. After the battle of New Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, General Jackson still maintained martial, or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louaillier, published a denunciatory newspaper article-- General Jackson arrested him-- A lawyer by the name of Morel procured the U. S. Judge Hall to order a writ of Habeas Corpus to release Mr. Louaillier. General Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick." General Jackson arrested him. When the officer undertook to serve the writ of Habeas Corpus, General Jackson took it from him, and sent him away with a copy.
Holding the judge in custody a few days, the general sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and others were fully liberated. A few days more, and the judge called General Jackson into Court and fined him a thousand dollars, for having arrested him and the others named. The general paid the fine, and there the matter rested for nearly thirty years, when Congress refunded principal and interest.
The late Senator Douglas, then in the House of Representatives, took a leading part in the debates, in which the constitutional question was much discussed. I am not prepared to say whom the Journals would show to have voted for the measure."
There was clearly enough grounds for the president to exercise his powers under the Constitution in accordance with his interpretation, and the subsequent ruling by the Court in the Milligan case has no bearing on the rightness of his actions prior to that ruling.
It's just a sour grapes attack on his memory.
Walt
I have only said it was unlawful.
It wasn't unlawful when he did it.
Walt
Yes it was. The Constitution says so. It was also unlawful when he simply ignored a court ruling that told him it was unlawful.
If you want to look at historical precedents though, I direct your attention to Thomas Jefferson in 1807. A possibility of suspending the writ came up with circumstances pertaining to the Aaron Burr affair, but Jefferson knew he could not suspend it unilaterally. So instead he asked Congress to consider the matter, which they then debated at length.
And an Ex Post Facto sanctioning of either Jackson or Lincoln is unconstitutional, by the way.
Yeah, the day of his true legacy - Tax day. He was shot on April 14 though, also known as Sic Semper Tyrannus day.
Yes it was. The Constitution says so.
Then we don't need a Supreme Court, or anyt courts at all, do we?
The Constitution says not one word about what the president may or may not do in regard to the Writ.
Walt
And yet Congress indicated that his action was necessary and proper.
There were no telegraphs in 1815. The Brits were at the gates, so to speak. By the logic Taney later applied, it would have taken an act of Congress specifically naming the persons to be detained under the suspension of the Writ.
That would have taken months that General Jackson didn't have. President Lincoln was also faced with a dire situation not admitting of delay.
The fact that you deny President Lincoln (and General Jackson) the right to apply necessary and proper courses of action really means very little.
It's all "Mean old Lincoln kicked our butts!" from the neo-rebs.
Walt
An ex post facto law is unconstitutional, Wlat. Try again.
There were no telegraphs in 1815.
So what. The Constitution does not care whether people communicate by telephone, telegraph, or tying a little piece of paper to the leg of a trained pigeon.
By the logic Taney later applied, it would have taken an act of Congress specifically naming the persons to be detained under the suspension of the Writ.
It appears, based on the ruling, that a law suspending habeas corpus would have sufficed.
Actually it says several by way of an inescapable conclusion of logic:
Article I, Section 9 outlines the only means by which habeas corpus may be suspended.
Article I, Section I says the powers in that article belong to Congress.
Article I, Section 9 is in Article I, therefore Article I, Section 9 belongs to Congress.
And since Article I, Section 9 is the only means by which habeas corpus may be suspended, its belonging to Congress also entails that only Congress may suspend it. This fact necessarily excludes any presidential claim to do the same. You have been shown this logical procession many times, Wlat, but not once have you ever addressed it. Nor do I suspect this one will be any different.
As you well know, it doesn't say that.
Walt
Yes it does, Walt:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"
The term "unless" refers to the only circumstances by which habeas corpus may be suspended, while the first part of the clause says that, excepting those terms, it may not be suspended. Even your false god admitted that much.
I think you're thinking of John Merryman. Milligan was arrested and tried in Indiana and by that time Taney had been dead for two years.
The court obviously disagreed with Lincoln's unique and convenient interpretation. Lincoln exceeded the powers granted by the Constitution.
The Supreme Court has never considered President Lincoln's actions so we don't know what they think of them.
Quote President Lincoln to that effect.
Let me help:
"The resolutions promise to support me in every constitutional and lawful measure to suppress the rebellion; and I have not knowingly employed, nor shall knowingly employ, any other."
You just got caught in a big whopper. You don't seem rational.
Walt
Happily.
"The provision of the Constitution that "The privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,'' is equivalent to a provision---is a provision---that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made." - The Lincoln, July 4, 1861
"The decades leading up to the Civil War provided ample crises to keep the sea of liberty choppy. More than once they threatened to swamp the ship of state altogether. The nullification crisis of 1832, the 1836 congressional gag rules on slavery-related debate, the 1856-57 agony of bleeding Kansas, and John Brown’s 1859 raid on Harpers Ferry—all severely tested the government in a rising crescendo before the greatest test of all exploded with the first shell over Fort Sumter in 1861.
With that shell burst, Lincoln found himself navigating waters for which the Constitution provided few charts; many believed it would not survive a civil war without being altered fundamentally. Between April 1861 and the convening of a special session of Congress on July 4, Lincoln moved decisively to establish the authority he needed to bring the rebellion to heel. He proclaimed a blockade of Southern ports, federalized state militias, and called for volunteers. When secessionist sympathizers in Baltimore rioted, burning bridges to prevent the passage of troops to the defense of Washington, and the Maryland legislature convened a special session to vote on secession, Lincoln suspended habeas corpus and sent troops to occupy the city. Maryland stayed in the Union, but Lincoln had had to read deeply into the Constitution to infer the powers he needed.
Not until March 1863 did Congress act to suspend habeas corpus retroactively to the beginning of the war, although early on it did take other measures aimed at the rebellion and its sympathizers: the Conspiracies Act (July 31, 1861), the First Confiscation Act (August 6, 1861), and the Treason Act (July 17, 1862). Prosecutions resulting from these laws were few. March 1863 saw the passage of the first Conscription Act to ensure the flow of manpower to the army. When resentment against conscription boiled over into the bloody New York City Draft Riots in July 1863, troops fresh from the slaughter at Gettysburg were rushed to the city to restore order. Perhaps the most far-reaching, constitutionally questionable of Lincoln’s war acts was emancipation. Often Lincoln believed himself to be on uncertain ground but hoped that “measures otherwise unconstitutional” might be tolerated because of their importance to the war effort.
Suspension of habeas corpus sparked conflict with the rabidly pro-South chief justice of the Supreme Court, Roger Taney, who believed he could best serve Southern interests from his court seat, even though the majority of justices backed the president. In the case of habeas corpus, he insisted that the writ was virtually sacrosanct, to be suspended only as a last resort in dire necessity. Lincoln queried in response, “Are all laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Until his death in 1864, Taney battled the administration in an effort to hamstring the government.
One of the biggest areas of controversy involved the military courts that appeared around the North. There were more than thirteen thousand Northern civilian arrests for “disloyal activities” during the Civil War, ranging from opposition newspaper editors, Democratic politicians, and other critics of the war effort to—in a throwback to Luther Baldwin and the 1798 Sedition Act—a man who was arrested for calling Lincoln a “damned fool.” Most detentions were kept short-lived by the administering of an oath of allegiance, but there were those who languished under Kafkaesque conditions in military prisons.
The most famous civilian arrest was that of Clement L. Vallandigham, a Copperhead and ex-congressman violently opposed to the war. Arrested in May 1863 for his anti-war public speeches and Southern sympathies, he was sentenced by military tribunal to imprisonment for the war’s duration. Lincoln changed his sentence and banished him to the South, but the following year Vallandigham made his way back to Ohio and appealed his conviction to the Supreme Court. The court refused to interfere, but the question of what limits if any existed on wartime dissent was hotly contested for the duration of the war. “[T]he safety of the nation is the supreme law,” claimed the New York Times; the Empire State’s Democratic Governor Horatio Seymour countered, “War does not extinguish liberty.”
If the war years were terra incognita, Reconstruction was worse. As soon as Southern territory came under Federal military occupation, new questions arose as to the status of the rebellious states, of the Constitution, and of the freed slaves. The judge advocate’s office administered these territories and needed guidelines. Books such as William Whiting’s War Powers under the Constitution of the United States (1863) were written to provide them. By the middle of 1863, it was clear that civilian government would guide the military both in its handling of the occupied states and on any questions relating to civil disobedience or anti-war activities in the North. The return of the defeated South to full participation in the Union was even more complex, nor was it simplified any by continued Southern intransigence. And President Andrew Johnson’s failure to address rights issues in the restored South led to direct conflict between the military and the executive. The Thirteenth and Fourteenth Amendments (1868 and ’70) were passed in response to the Black Codes enacted in the South. Suspension of habeas corpus, the continued use of military tribunals, and, in some extreme cases, military force, kept the pot of Reconstruction boiling.
For the most part, once the war ended, a spate of revisionism set in. The government, it seemed in hindsight, had overreacted to the threat of civil unrest during the war. This was made particularly clear in the case of the anti-war activist Lambden P. Milligan. He had been sentenced to death by military tribunal in 1863, but upon his appealing the decision, Lincoln delayed the execution. After the president’s assassination, Andrew Johnson approved it. The case reached the Supreme Court in 1866, and in its landmark ex parte Milligan ruling, the court determined that military tribunals were illegal where the civil courts were open and functioning.
Early in the twentieth century, the war that was supposed to make the world safe for democracy did not—at least, not at first. Instead, it launched an era of intense repression of civil liberties. In the nineteen months that the United States actually participated in World War I, Congress gave President Woodrow Wilson widespread control over prices, rents, agriculture, manufacturing, and transportation. These powers were aimed at keeping up the pace of production needed to assure victory. But there was also a series of acts aimed at keeping dissension under wraps. The Selective Service Act not only established the draft but also authorized the arrest of anyone obstructing it. The Espionage Act targeted spies and anyone who discouraged enlistment and recruitment, fomented disobedience, or spread false information to benefit the enemy. “Undesirable” activity and “uttering, printing, writing or publishing any disloyal, profane, scurrilous or abusive language” was banned under the Sedition Act, and the Immigration Act authorized the expulsion of alien anarchists. Wilson also sought broader powers to censor the press. He did not get them, but Congress did provide for de facto censorship by granting the postmaster general extensive power to decide which publications could and could not use the U.S. Postal Service (Trading With the Enemy Act). Periodicals critical of the war tended not to get approved.
Thousands were arrested, more than a thousand convicted. Federal agents crushed the left-wing International Workers of the World trade union in a series of nationwide raids. Under the Espionage Act, Socialist Party of America founder Eugene V. Debs got a ten-year prison sentence for giving an anti-war speech. Speaking German in public and over the telephone was banned in some places, because, as the governor of Iowa said, the First Amendment did not guarantee “the right to use a language other than the language of the country.” Even the more liberal voices of the Supreme Court found that civil liberties took a back seat to national security. Charles T. Schenk was convicted for distributing anti-draft leaflets, and in hearing his appeal Oliver Wendell Holmes Jr. formulated the standard of “clear and present danger.” “When a nation is at war,” he wrote in Schenk v United States, “many things that might be said in a time of peace are such a hindrance to its effort that this utterance will not be endured as long as men fight and no Court could regard this as protected by any constitutional right.”
Organizations were founded in response to what was perceived as a broad assault on civil liberties. The National Civil Liberties Bureau (later, the American Civil Liberties Union) was founded in October 1917 to combat repression and defend the “war’s heretics.” Its broad following included supporters of the war, like one pro-war lawyer who explained, “My law-abiding neck gets very warm under its law-abiding collar these days at the astounding violation of fundamental laws which are being put over.” And in 1919, the New School for Social Research was founded in New York as a place where “free thought and intellectual integrity” could flourish in spite of the repressive atmosphere.
The war’s abuses did not end with the hostilities. The postwar cancellation of defense contracts put thousands out of work, while thousands more were being discharged from the armed forces. During 1919 there were more than four thousand strikes and lockouts. States responded by passing laws against “radicals,” a catchall phrase that in its vagueness included Communists, Socialists, immigrants, anarchists, and union members. Soviet Russia complicated matters further with its March 1919 announcement of the creation of the Comintern for the express purpose of exporting Socialist revolution to the world. A month later several dozen bombs were intercepted by the postal service; in June, eight more exploded virtually simultaneously in eight different cities.
To combat this threat, in July Attorney General A. Mitchell Palmer created the Justice Department’s General Intelligence Division, headed by J. Edgar Hoover. Telephone wiretaps began nationwide in autumn, raids in November. A series of coordinated raids in January 1920, many without warrants, netted some six thousand people nationwide. Of those arrested, many were held incommunicado for extended periods in abusive conditions, some were forced to sign false confessions, and hundreds were deported. Even so, thirty-eight people were killed when another bomb exploded on Wall Street in September 1920.
The electoral process was not exempt. In New York, five elected assemblymen were expelled from the state assembly for being Socialists. There was severe criticism, both in the press and from the public, of the action of the legislature, but the assemblymen did not get their seats back.
Palmer hoped to ride his raids right into the White House in 1920. To maintain a high profile, he predicted massive nationwide violence by radicals in May, but it did not happen. His credibility collapsed, and the raids ended. Reaction against them had begun to set in earlier. As had happened after the Civil War, federal judges, freed from the dangers of World War I, re-examined some of their wartime opinions. Less than six months after his opinion in Schenk v United States, for example, Justice Holmes virtually reversed himself in another First Amendment case. Ruled one judge, “A mob is a mob, whether made up of government officials acting under instructions from the Department of Justice or of criminals, loafers, and the vicious classes.”
The repressive tide had finally turned, and ushered into its place was a new era of respect for the Bill of Rights. During the crisis years before World War II, conscious efforts were made to avoid repeating the excesses of the Wilson years. President Franklin D. Roosevelt instructed Federal Bureau of Investigation Director J. Edgar Hoover to begin compiling dossiers on potential foreign agents, but he also promised to protect free speech. The Supreme Court recognized government’s right to self-protection, but also sent strong messages that persecution of dissent would not be tolerated. The Department of Justice created a Civil Liberties Unit in 1939. In his 1941 State of the Union Address, Roosevelt defined the four freedoms, which were broadly adopted as a shining statement of America’s mission. And in April, before America’s entry into the war, the administration produced a major celebration for the 150th anniversary of the Bill of Rights. Only Congress seemed somewhat out of step. The House of Representatives created its Un-American Activities Committee in 1938, which proceeded to find evidence of subversion everywhere.
When the war came, FDR and his administration fared well on civil liberties overall, even working to embrace citizens of Italian and German descent. But there is one great stain on the record, and that blot has been called the greatest single violation of civil liberties in American history.
The population of Japanese-Americans in America in 1941 was well over a hundred thousand, nearly two-thirds of them citizens, most living on the West Coast. After Pearl Harbor, there was no immediate backlash against them. The head of the Western Defense Command, General John C. DeWitt, labeled talk of evacuating them from the area “damned nonsense.” But within six weeks, he had changed his tune. Proclaiming, “A Jap is a Jap,” he advocated the evacuation he had earlier derided. Columnist Walter Lippmann, writing about the West Coast Japanese, declared: “Nobody’s constitutional rights include the right to reside and do business on a battlefield. There’s plenty of room elsewhere for him to exercise his rights.” On February 19, 1942, President Roosevelt issued Executive Order 9066, designating parts of the country as military areas and subject to residential and travel restrictions. Congress enacted much of EO9066 into law a month later. During that spring and summer, nearly 120,000 persons of Japanese origin or ancestry reported to relocation centers for deportation to internment camps.
The Supreme Court upheld the relocation orders, in spite of what one justice called their “melancholy resemblance” to the plight of Jews in Nazi Europe. But echoing previous benches in previous wars, the high court said that in wartime military judgment was paramount, that civilian concerns took a distant back seat. The only option left to Japanese-Americans, even according to one dissenting justice, was “submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.” (By contrast, on Columbus Day 1942, a cheering crowd in New York City greeted the news that the Roosevelt administration had decided to drop the “enemy alien” classification on six hundred thousand Italian citizens then living in the United States.) Wrote the director of one internment camp when he filed his final report in 1946, “It was finis of a section of a chapter of history which, pray God, America neither may be called upon nor see fit to repeat.”
Inflated security concerns caused untold hardship among thousands of innocent civilians, but the atmosphere was complicated by real threats, cases that fell properly within the sphere of military justice. In 1942, eight German saboteurs landed from submarines in New York and Florida. All eight were quickly apprehended and tried by military tribunal, and six were sentenced to death. A motion for habeas corpus was denied. In the opinion of the court, the president had sufficient authority under the Constitution’s war powers to convene military tribunals; from the Revolution on, such tribunals had been used to summarily try enemy personnel. “Time out of mind it is within the power of Commander-in-Chief to hang a spy,” wrote Justice Hugo Black in denying habeas corpus to one of the saboteurs.
In 1946, captured Japanese General Tomoyuki Yamashita appealed his conviction for war crimes by military tribunal on the basis that he was denied his Fifth Amendment right to due process. This appeal, too, was denied. According to the court, Yamashita had no constitutional rights. But the war was now over, and once again, re-evaluation of wartime stands was in vogue. Two justices dissented, claiming that the Constitution followed the flag: “The grave issue raised by this case is whether a military commission…may disregard the procedural rights of an accused person as guaranteed by the Constitution. The answer is plain. The Fifth Amendment guarantee of due process applies to ‘any person’ who is accused of a crime by the Federal Government or any of its agencies.”
The legality of martial law was re-examined in a case dealing with the Hawaiian Islands. Following the start of the war, the military placed the islands under martial law. During the war years, there were no questions about the appropriateness of or the authority for its action. But barely was the war over when the validity of martial law was tested in court, and, in a decision based on ex parte Milligan, was shot down.
Hot war became cold war, brought on by a second “Red Scare.” The House Un-American Activities Committee became permanent in 1948, and the Senate spawned a blight by which the entire era came to be known: McCarthyism. Smear tactics and innuendo dropped a curtain of fear across the United States. Loyalty oaths and blacklists proliferated, and though this latest Red Scare ended with Joseph McCarthy being censured by his Senate colleagues in 1954, its impact on political and intellectual freedom reverberated into the ’60s. Yet, backlash against the McCarthy years helped fuel the fires of the civil rights and anti-war movements and gave momentum to the chaotic sixties. Once again, the pendulum had swung back.
So far, the pendulum always has swung back, and that is important to recognize when considering the current crisis and response to it. Every American generation since the Revolution has had to wrestle with complex questions about how best to defend liberty. Some believe along with Justice Robert Jackson that the Constitution is not a suicide pact, that sometimes “the laws are not adequate to their own preservation.” [which is pretty much what President Lincoln said] Others argue along with Benjamin Franklin that there are no “acceptable” limits on liberty: “They that can give up essential liberties to obtain a little temporary safety deserve neither liberty nor safety.” And writer Tunis Wortman said at the passage of the Sedition Act of 1798, “Finding criminality in the tendency of words is an effort to erect public tranquility…upon the ruins of civil liberty.” Edmund Randolph argued that parchment guarantees offered no real protection from the abuse of authority.
Though those parchment guarantees may have bent, they have never yet broken. The obviously partisan and repressive spirit of the Alien and Sedition Acts in 1798 resulted in few prosecutions and swept a new president into office on the slogan of “Jefferson and Liberty.” The military tribunals of Abraham Lincoln during the Civil War put not a single person to death. Most of the tribunals’ defendants swore a loyalty oath to the Union and quickly went free. Once the war ended, a series of hindsight legal decisions on the one hand and a flurry of (short-lived) civil liberty–oriented legislation on the other gave strength to Lincoln’s call for a “new birth of freedom.” Similarly, the repressive actions of the Wilson administration during World War I led to a new recognition of the fundamental importance of the Bill of Rights. Time and again, during the Burr secessionist crisis, the War of 1812, the Civil War, and World War II, the imposition of martial law in regions where civil courts were functioning was determined to be illegal. After the McCarthy era, the United States entered a period of civil rights and personal liberties unprecedented in history. Time and again, the Constitution has been tested by crisis, and time and again it has proven its resilience. Legitimate concern about the impact 9/11 has had or will have on our basic liberties is appropriate and important, but it is equally important to view these events and actions through the informing lens of history. The record is not spotless, but it is impressive.
The Romans had a phrase for it: “inter arma silent leges”—“in times of war, the laws are silent,” as Thomas Jefferson wrote at the time of the Burr conspiracy. But if the laws have been silent inter arma, so far they have always come back in full strength when the crisis has passed."
Nowhere in this text does President Lincoln even hint that only Congress could suspend the Writ. In June, 1863 he said he had not employed anything outside constitutional bounds.
Walt
An ex post facto law is unconstitutional, Wlat. Try again.
It was certainly within the purview of the Congress to applaud General Jackson and refund penalty and interest to him. And it is a strong indication on how they viewed the issue. You are applying hindsight and malice in your interpretation.
Walt
You are debating straw men of your own creation, Wlat.
I said: "The term "unless" refers to the only circumstances by which habeas corpus may be suspended, while the first part of the clause says that, excepting those terms, it may not be suspended. Even your false god admitted that much."
I did not say, however: "Your false god admitted that habeas corpus suspension applied only to congress"
In other words, The Lincoln admitted, in that quote, that the suspension of habeas corpus had to occur by way of Article I, Section 9. He then claimed that he could do so under that same article, despite the fact that constitutionally he could not.
No. Congress is banned from passing Ex Post Facto laws by the Constitution. Try again.
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