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William H. Rehnquist: 100th Anniversary Celebration of the Norfolk and
Portsmouth Bar Association
Thank you, Judge Doumar, for your kind introduction. I am very
pleased to be here today to help celebrate the 100th anniversary of
the founding of the Norfolk and Portsmouth Bar Association.
I am going to speak this afternoon about civil liberty in time of
war, focusing first on the Civil War and then on World War II. I have
chosen this subject in part because of the importance of the Civil War
in this historic area.
Even those of you who did not major in history probably know that
Abraham Lincoln was elected President in November of 1860, and was
inaugurated as President on March 4, 1861. Between the time of his
election and his inauguration, the seven states of the deep south --
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and
Texas -- had seceded from the Union and elected Jefferson Davis as
their President. For the first six weeks of Lincoln's administration,
the cabinet debated what to do about the Union garrison at Fort
Sumter, on an island in the harbor of Charleston, South Carolina. In
mid-April, the Confederate shore batteries opened up on the fort, and
the garrison surrendered the next day. Lincoln called for 75,000
volunteers to put down the rebellion, and the four states of the upper
south -- Virginia, North Carolina, Tennessee, and Arkansas -- seceded
and joined the original seven states of the Confederacy. The Civil War
had begun.
As most of you already know, some of the more well-known Civil War
events occurred in this area. Indeed, the Norfolk Navy Shipyard played
an interesting role during the Civil War. The U. S. government had
established the Norfolk Navy Shipyard in 1801. Its predecessor on the
same site was a private shipyard built in 1767 by a wealthy Scottish
merchant named Andrew Sprowle.
On April 20, 1861, Federal troops evacuated the Norfolk Navy Yard,
and the Confederacy fell heir to the enormous amount of guns, and
equipment that had been stored there. Before they evacuated the Navy
Yard, however, Federal troops had deliberately sunk the USS
"Merrimack" in hopes of preventing the Confederate troops from making
use of it. The "Merrimack" had been a brand new steam frigate with the
capacity to carry 40 guns and worth over one million two hundred
thousand dollars (in 1861 dollars) fully equipped. Under the control
of the Confederacy, the Norfolk Navy Yard salvaged and rebuilt the
Confederate ironclad "Virginia" from the hull of the scuttled USS
"Merrimack".
Accounts from the time state that the refurbished "Virginia", also
still referred to by many as the "Merrimack", bore some resemblance to
a huge terrapin, with a large round chimney about the middle of its
back. The ship had a maximum speed of around five knots or five miles
per hour, and it was not suitable to sail in either high winds or
heavy seas. It also took over 30 minutes to turn the vessel. Thus the
sole purpose of the ironclad "Virginia" was to guard the Norfolk
harbor. The reconstruction of the "Virginia" by Confederate workers
was completed on March 5, 1862.
The Confederacy generally intended to use the ironclad "Virginia"
to guard the water route to Richmond from the coast via the James
River. The vessel's first voyage away from the Norfolk Navy Yard
occurred on March 8, 1862. On that day, the "Virginia" sank the
federal ship "Cumberland" and burned the Union ship "Congress" off
Hampton Roads (which today is considered part of the
Norfolk/Portsmouth/Hampton Roads metropolitan area). On March 9, 1862,
the "Virginia" sailed out to complete the destruction of the federal
ship "Minnesota", which had run aground after the previous day's
encounter with the "Virginia". On this voyage, the "Virginia" met the
USS "Monitor", also an experimental ironclad with a revolving turret
amidship. The ensuing five-hour battle was the first naval engagement
in history between ironclad vessels. Although the engagement resulted
in a draw, the "Virginia" was nonetheless driven back to Norfolk for
repairs. The James River remained closed, however, keeping the federal
fleet in Hampton Roads and away from Richmond. In early May of 1862,
Confederate soldiers burned the "Virginia" in order to keep her from
falling back into the hands of Federal troops. The City of Norfolk and
the Navy Yard were then recaptured by Federal troops on May 10 of
1862.
Let us now shift our focus to a city located on the northern border
of the Commonwealth of Virginia. When the Civil War broke out,
Washington, D.C. went from being an interior capital to a capital on
the very frontier of the Union, exposed to possible raids and even
investment and capture by the Confederate forces. President Lincoln,
fully aware of this danger, was most anxious that the 75,000
volunteers for whom he had called would arrive in Washington and
defend the city against a possible Confederate attack. Many would come
from the northeast -- Boston, New York, and Philadelphia. But all of
the rail connections from the northeast into Washington ran through
the city of Baltimore, 40 miles to the northeast. Herein lay a
problem; there were numerous Confederate sympathizers in Baltimore and
the city itself, at that time, had a reputation for unruliness -- it
was known as "Mob City." To complicate matters further, it was
necessary for passengers enroute from the northeast to Washington to
change stations in Baltimore.
Shortly after troops from the northeast began arriving in Baltimore
on their way to Washington, a riot broke out while soldiers were in
transit from one station to another. Some of the troops were riding in
railroad cars drawn by horses through the downtown streets of the
city, while others were marching in military formation through those
same streets. A hostile crowd pelted the troops with stones. The
troops in turn fired shots into the crowd. Several soldiers and
several bystanders were killed.
That night, the chief of police of Baltimore, who was an avowed
Confederate sympathizer, and the Mayor of Baltimore, who was a less
open one, spearheaded a group of Confederate sympathizers who took
matters into their own hands. They blew up the railroad bridges
leading into Baltimore from the north. As a result troops bound for
Washington to be sent on a circuitous journey by ship from a point on
the Chesapeake Bay above Baltimore to Annapolis, from which they
traveled to Washington by land.
In response to the situation in Baltimore, Lincoln, at the behest
of his Secretary of State, William H. Seward, took the first step to
curtail civil liberty -- he authorized General Winfield Scott,
commander-in-chief of the Army, to suspend the writ of habeas corpus
at any point he deemed necessary along the rail line from Philadelphia
to Washington. Scott took full advantage of this authority, and
several weeks later, federal troops arrested a man named Merryman,
whom authorities suspected of being a major actor in the dynamiting of
the railroad bridges. He was he confined in Fort McHenry, and
immediately sued out a writ of habeas corpus.
The writ of habeas corpus is something that comes to us from
English common law, and was the means by which one who was arrested or
confined by governmental authority could ask a court to require the
person holding him in custody to show cause why he was being held. The
court would then decide whether there was sufficient reason to hold
the person, and if there was not would order him set free. It has been
rightly regarded as a safeguard against executive tyranny, and an
essential safeguard to individual liberty. The United States
Constitution provides that the writ of habeas corpus shall not be
suspended, except when in time of war or rebellion the public safety
shall require it.
The day after Merryman sought the writ, Chief Justice Roger Taney,
who was sitting as a circuit judge in Baltimore, ordered the
government to show cause why Merryman should not be released. A
representative of the commandant of Fort McHenry appeared in court for
the government to advise Taney that the writ of habeas corpus had been
suspended, and asked for time to consult with the government in
Washington. Taney refused, and issued an arrest warrant for the
commandant. The next day, the marshal reported that in his effort to
serve the writ he had been denied admission to the fort. Taney then
issued an opinion in the case declaring that the President alone did
not have the authority to suspend the writ of habeas corpus -- only
Congress could do that -- and holding that Merryman's confinement was
illegal. The Chief Justice, knowing that he could not enforce his
order, sent a copy of it to Lincoln.
Lincoln ignored the order, but in his address to the special
session of Congress which he had called to meet on July 4, 1861, he
adverted to it in these words:
"Must [the laws] be allowed to finally fail of execution even had
it been perfectly clear that by the use of the means necessary to
their execution some single law, made in such extreme tenderness of
the citizen's liberty that practically it relieves more of the
guilty than of the innocent, should to a very limited extent be
violated? To state the question more directly, are all the laws
but one to go unexecuted, and the government itself go to pieces
less that one be violated?"
Lincoln, with his usual incisiveness, put his finger on the debate
that inevitably surrounds issues of civil liberties in wartime. If the
country itself is in mortal danger, must we enforce every provision
safeguarding individual liberties even though to do so will endanger
the very government which is created by the Constitution? The question
of whether only Congress may suspend it has never been authoritatively
answered to this day, but the Lincoln administration proceeded to
arrest and detain persons suspected of disloyal activities, including
the mayor of Baltimore and the chief of police.
Newspaper publishers did not escape the government's watchful eye
during the Civil War either -- particularly the New York press, which
had a disproportionate impact on the rest of the country. Newspapers
in smaller cities frequently simply reprinted stories which had run
earlier in the metropolitan press. In August 1861, a grand jury
sitting in New York was outraged by an article in the New York
Journal of Commerce -- a paper which opposed the war -- that
listed over one hundred Northern newspapers opposed to "the present
unholy war." Without hearing any evidence or receiving any legal
instructions from the judge, the grand jury made a "presentment" as to
five anti-war New York newspapers -- a written notice taken by a grand
jury of what it believes to be an indictable offense.
On this thin reed, the administration proceeded to act. Postmaster
General Montgomery Blair directed the Postmaster in New York to
exclude from the mails the five newspapers named by the grand jury.
Gerald Hallock, the part owner and editor of the Journal of
Commerce, was obliged to negotiate with the Post Office Department
to see what the paper would have to do to regain its right to use of
the mails. The Post Office Department told him that he must sell his
ownership in the newspaper. Hallock reluctantly agreed, and retired,
thereby depriving the paper of its principal editorialist opposing the
war.
The New York News, owned by Benjamin Wood, brother of New
York Mayor Fernando Wood, decided to fight the ban against his paper.
He sought to send its edition south and west by private express, and
hired newsboys to deliver the paper locally. The government ordered
U.S. Marshals to seize all copies of the paper. In fact one newsboy in
Connecticut was arrested for having hawked it. Eventually, Wood, too,
gave up. The other New York newspapers did not rally to the cause of
the anti-war newspapers, shouting "First Amendment," as they surely
would today. Quite the contrary, they gloated. James Gordon Bennett's
Herald was "gratified" to report the death of the News,
and the Times observed that Ben Wood should be thankful he
could "walk in the streets."
Even clergy were subject to detention for perceived disloyalty.
Perhaps the most egregious example was that of the Reverend J. R.
Stewart, the Episcopal rector at St. Paul's Church in Alexandria,
Virginia, who was undoubtedly a southern sympathizer. For two Sundays
in a row, he had omitted the customary Episcopal prayer for the
President of the United States in the course of the service. On the
second of these occasions, he was arrested in the pulpit of the
church, and briefly detained until cooler heads prevailed.
As the Civil War drew to a close in 1864, there was considerable
disaffection and war-weariness in what were called the states of the
old northwest -- Ohio, Indiana, and Illinois. There was evidence of a
conspiracy on the part of members of secret societies, such as the
Knights of the Golden Circle and the Sons of Liberty, to assassinate
the Governor of Indiana, free Confederate prisoners held near Chicago,
and seize the federal arsenal at Rock Island, Illinois. These plans
were thwarted when, in the summer of 1864, a cache of arms and
incriminating correspondence was found in the Indianapolis home of the
state commander of the "Sons of Liberty." Edwin Stanton, Lincoln's
Secretary of War, decided that the suspects in this conspiracy should
be tried, not in a regular civil court by a jury, but by a military
commission, composed of senior army officers.
In so doing, he went a good deal further than simply suspending the
writ of habeas corpus. Trial before such a commission would raise
serious questions, for example, about denial of the right to jury
trial guaranteed by the Bill of Rights. The suspects were duly tried
before such a commission in Indianapolis, and several were sentenced
to be hanged. They appealed to the Supreme Court, which in a case
called Ex Parte Milligan decided in 1866 -- more than a year
after the Civil War was over, by a vote of 5 to 4 that civilians not
in the military -- and that is who these defendants were -- could not
be tried by a military commission so long as the civil courts were
open for business.
Here we have an illustration of an old maxim of Roman law --
Inter Arma Silent Leges -- which loosely translated means that in
time of war the laws are silent. All during the Civil War the courts
were unable or unwilling to ride herd on the Lincoln administration's
policies which seriously interfered with civil liberty. Only after the
end of the war was a decision handed down which upheld that liberty.
Let us now move forward to World War II. I am one of the few in
this room old enough to remember back to the Japanese attack on Pearl
Harbor on December 7, 1941. Since it began for the United States by
Japan's attack on Pearl Harbor, and Hitler's declaration of war, there
was strong support for the war effort across the political spectrum in
this country. It was "the good war," as Studs Terkel calls it in his
book. Fourteen million people were in the armed services; on the home
front there were sacrifices, and slogans such as "Buy Bonds" and "A
Slip of the Lip May Sink a Ship." Even restaurants got into the act,
with the slogan "Food Will Win the War." On this sign at one
restaurant, a customer scrawled "Yes, but how can we get the enemy to
eat here"?
In June of 1942, six months after Pearl Harbor, Richard Quirin and
seven other members of the German armed forces were secretly landed in
the United States. They had been trained in the use of explosives and
secret writing at a sabotage school near Berlin. Four of them were
transported by German submarine to Amagansett Beach on Long Island,
New York. They landed under cover of darkness in June 1942, carrying a
supply of explosive and incendiary devices. At the moment of the
landing they wore German uniforms, but immediately afterwards they
buried their uniforms on the beach and went in civilian dress to New
York city. The remaining four who had been trained at the sabotage
school were taken by another German submarine to Ponte Vedra Beach,
Florida. They went through the same procedures as those who landed on
Long Island, and proceeded to Jacksonville in civilian dress. All were
ultimately arrested by the FBI in New York or Chicago; all had been
instructed to destroy war industries in the United States.
President Franklin Roosevelt appointed a military commission to try
Quirin and his cohorts for offenses against the laws of war and the
Articles of War enacted by Congress, and he directed that the
defendants have no access to civil courts. While they were being tried
by the military commission, which sentenced all of them to death, they
petitioned the Supreme Court of the United States for review of the
procedures under which they were being tried. The Supreme court
convened in a special term on July 29, 1942, to hear arguments in
their case.
One of the principal arguments made by able counsel for the
petitioners was that the civil courts throughout the United States
were open at the time, there had been no invasion of any part of the
country, and therefore under the Milligan case there could be
no resort to trial by a military commission. Counsel noted that one of
the petitioners, Herbert Haupt, had been born in the United States and
was a United States citizen. At the conclusion of the arguments in the
case, and after deliberation, the Court on July 31st announced its
disposition of the case upholding the government's position, but its
full opinion did not come down until October 1942. In that opinion the
Court sharply cut back on the dicta in the Milligan
case, saying that even though the civil courts were open, and even
though it was assumed that one of the German soldiers was a United
States citizen, these defendants could nonetheless properly be tried
and sentenced to death by a court martial.
It is worth noting that this decision was made in the dark days of
the summer of 1942, when the fortunes of war of the United States were
just beginning to recover from their lowest ebb. The United States
Navy had suffered serious damage to its fleet at Pearl Harbor, and
Japanese troops invading the Philippines had pushed the United States
troops back onto the Bataan Peninsula, resulting in the grisly Bataan
death march. In North Africa, German forces had recaptured Tobruck and
were within striking distance of Cairo, threatening the entire Mid
East. Civil liberties were not high on anyone's agenda, including that
of judges.
Hawaii was placed under martial law within days after the attack on
Pearl Harbor, and remained under that regime until it was lifted in
the Autumn of 1944. Such a regime would seem to have been quite
justified in the period immediately after the bombing of Pearl Harbor,
when actual invasion of the islands by Japanese forces was feared. But
after the battle of Midway in June 1942, that possibility was all but
eliminated. Yet martial law remained in effect until the Autumn of
1944, when it was lifted by presidential proclamation.
One of the principal incidents of this martial law was that the
civil courts in Hawaii were closed the day after Pearl Harbor, and
only gradually permitted to resume some of their previous functions.
They were closed not because of any external necessity, but because
the military governor of Hawaii ordered them closed. Provost courts,
composed of officers appointed by the military governor, tried
criminal cases. Lloyd Duncan, a civilian shipfitter, was charged with
assaulting two military guards at the Pearl Harbor Navy yard, where he
worked. He was tried by a provost court and sentenced to six months in
jail. Harry White, a stockbroker, was charged with having embezzled
funds from a client -- surely an offense as far removed from
considerations of public order or security as one can imagine. He was
tried by a provost court and sentenced to four years in prison. Both
of the defendants challenged their convictions by habeas corpus in the
federal courts. When their cases finally reached the Supreme Court, a
majority of the Court in the case of Duncan v. Kahanamoku
held that extension of martial law so long after the threat of
invasion had ceased was illegal. Chief Justice Stone commented in a
concurring opinion that if the bars and restaurants could be reopened
within two months after Pearl Harbor, it was hard to see why the
courts should not have been able to reopen a full year later.
The good news for civil liberty in the Duncan decision was
that the martial law regime was held to be illegal; the bad news was
that the Supreme Court handed down its ruling in February 1946, six
months after Japan surrendered, and a year and a half after martial
law had been lifted by the President.
One of the most controversial actions of the government during
World War II was the forced relocation of both Japanese aliens and
American citizens of Japanese ancestry away from the west coast. The
Supreme Court reluctantly upheld this program during the war, but the
judgment of history has been that a serious injustice was done these
people, because there was no effort to separate the loyal from the
disloyal. As often happens, the latter-day judgments, in my view,
swing the pendulum too far the other way. With respect to the forced
relocation of Japanese-American who were born in the United States of
Japanese nationals -- and were therefore United States citizens --
even given the exigencies of wartime it is difficult to defend their
mass forced relocation under present constitutional doctrine. But the
relocation of the Japanese nationals residing in the United States --
typically the parents of those born in this country -- stands on quite
a different footing. The authority of the government to deal with
enemy aliens in time of war, according to established case law
from our Court, is virtually plenary.
There were considerable differences between the way the Lincoln
administration infringed on civil liberty and the way FDR's infringed
on it. Lincoln often acted without any authority from Congress, and
some of his measures unabashedly suppressed dissent. There was no such
suppression of dissent in World War II, and most of the
administration's acts hostile to civil liberty were based on laws
passed by Congress. So the general trend from the 1860s to the 1940s
was in the direction of greater sympathy to claims of civil liberty.
But neither Lincoln nor FDR -- nor Woodrow Wilson during World War I
-- could be described by any stretch of the imagination as a supporter
of civil liberty.
Surely Abraham Lincoln is the greatest of American Presidents, and
Franklin Roosevelt ranks high among the runners up. Lincoln did not
himself approve in advance of most of the arrests, detentions, and
trials before military commissions which took place during the Civil
War. His cabinet secretaries and other advisors did that, but Lincoln
acquiesced in almost all of their decisions. The same may be said for
Franklin Roosevelt during the Second World War; he did not originate
the plan for the relocation of the Japanese from the west coast, but
he unhesitatingly acquiesced in it when he was told that it was a
necessary war measure.
Lincoln felt that the great task of his administration was to
preserve the Union. If he could do it by following the Constitution,
he would; but if he had to choose between preserving the Union or
obeying the Constitution, he would quite willingly choose the former
course. Franklin Roosevelt felt the great task of his wartime
administration was to win World War II, and, like Lincoln, if forced
to choose between a necessary war measure and obeying the
Constitution, he would opt for the former.
This is not necessarily a condemnation. Both Lincoln and FDR fit
into this mold. The courts, for their part, have largely reserved the
decisions favoring civil liberties in wartime to be handed down after
the war was over. Again, we see the truth in the maxim Inter Arma
Silent Leges -- time of war the laws are silent.
To lawyers and judges, this may seem a thoroughly undesirable state
of affairs, but in the greater scheme of things it may be best for all
concerned. The fact that judges are loath to strike down wartime
measures while the war is going on is demonstrated both by our
experience in the Civil War and in World War II. This fact represents
something more than some sort of patriotic hysteria that holds the
judiciary in its grip; it has been felt and even embraced by members
of the Supreme Court who have championed civil liberty in peacetime.
Witness Justice Hugo Black: he wrote the opinion for the Court
upholding the forced relocation of Japanese Americans in 1944, but he
also wrote the Court's opinion striking down martial law in Hawaii two
years later. While we would not want to subscribe to the full sweep of
the Latin maxim -- Inter Arma Silent Leges -- in time of war
the laws are silent, perhaps we can accept the proposition that though
the laws are not silent in wartime, they speak with a muted voice.
Thank you for inviting me to be with you today, and may your Bar
Association have an equally successful second century.
Text from the U.S. Supreme Court Web page.
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