In time of war, rights guaranteed by the Constitution

Findlaw ^ | 2/15/03 | Justice Van Devanter [1920]

[tpaine]

Justice Van Devanter [1920]:

For sixty years Ex parte Milligan, 4 Wall. 2, 120, 125 (18 L. Ed. 281 ), has been regarded as a splendid exemplification of the protection which this court must extend in time of war to rights guaranteed by the Constitution, and also as decisive of its power to ascertain whether actual military necessity justifies interference with such rights.

The doctrines then clearly-I may add, courageously-announced, conflict with the novel and hurtful theory now promulgated. A few pertinent quotations from the opinion will accentuate the gravity of the present ruling:

'Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided.

Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law.

The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.

No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. ...

'This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.

If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen.

For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the judiciary disturb, except the one concerning the writ of habeas corpus.

Moreover, well settled rights of the individual in harmless property and powers carefully reserved to the states, ought not to be abridged or destroyed by mere argumentation based upon supposed analogies. The Constitution should be interpreted in view of the spirit which pervades it and always with a steadfast purpose to give complete effect to every part according to the true intendment-none should suffer emasculation by any strained or unnatural construction. And these solemn words we may neither forget nor ignore:

'Nor shall any person ... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.'

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.'

[MrLeRoy]

"Since Congress has power to increase war efficiency by prohibiting the liquor traffic, no reason appears why it should be denied the power to make its prohibition effective".
--Mr. Justice NRANDEIS delivered the opinion of the Court.

A nice find, tpaine, but one that nevertheless supports my contention that Congress did not need the 18th amendment to prohibit alcohol.

False, since Prohibition did nothing to "increase war efficiency."

[MrLeRoy]

those unrefuted findings

I.e., once Congress declares something to be a "fact," the burden is on anyone who disagrees to disprove it. What a bootlicking philosophy.

[Roscoe]

once Congress declares something to be a "fact," the burden is on anyone who disagrees to disprove it.

A burden you guys have abysmally failed to meet.

[MrLeRoy]

once Congress declares something to be a "fact," the burden is on anyone who disagrees to disprove it.

A burden

So you do hold that bootlicking philosophy. Sad.

[Roscoe]

You're perfectly free to go into court and spew ill-informed and unsupported opinions if ya want. I won't mind at all.