All the Laws but One: Civil Liberties in Wartime.

• Author: Garvin, Margaret A.
• Position: Review

ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME. By William H. Rehnquist.(1) New York: Alfred A. Knopf, Inc., 1998. Pp. 254. $26.00.

What! will you never cease prating of laws to us that have swords by our sides?

Pompey Magnus(3)

Of course the existence of a military power resting on force, so vagrant, so centralized, so, necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive.... If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.(4)

In All the Laws But One: Civil Liberties In Wartime, Chief Justice William Rehnquist crafts a compelling narrative of civil liberties during times of declared war. Rehnquist devotes two-thirds of the book to the Civil War, presenting that era as the benchmark for later intersections of war and civil liberties. The book details a consistent history of government relegation of civil liberties to the backseat during times of war.(5)

For anyone interested in history, Chief Justice Rehnquist's book is an interesting story of the suspension and suppression of civil liberties during wartime. From the very first line, history comes to life as Rehnquist describes the cold, drizzly day in February 1861, when Abraham Lincoln set off to Washington D.C. where he "hoped to be inaugurated." (p. 3) But for anyone interested in an analysis of the constitutionality of the suspensions, All the Laws But One has surprisingly little to say. All the chapters, but one, are descriptive--they relate historical events, often colorfully, but do not evaluate them. It is not until the concluding chapter that Rehnquist shifts into analysis and compares the civil liberty infringements of the Civil War with those of the two World Wars and poses normative constitutional questions regarding the propriety of such actions.

In this final chapter Rehnquist identifies three major differences among the infringements: first, the actor who worked the suspension of civil liberties; second, the increasing role of the courts since the Civil War; and third, a trend of government toward more tolerance of wartime criticism. Despite these differences, Rehnquist concludes that the maxim Inter arma silent leges, "In times of war the laws are silent," is an apt description for the reality of civil liberties during war.

In light of this conclusion Rehnquist poses two important questions: first, whether the: reluctance of courts to decide against the government during war is a necessary evil or a desirable phenomenon; (p. 221) second, whether occasional presidential excesses and judicial restraint in wartime are desirable. (pp. 224-25) Disappointingly, however, Rehnquist, having raised these questions, avoids bringing his vast constitutional experience to bear on them. This lack of critical analysis is evident both in relation to the specific instances Rehnquist relates and in his overall analysis of civil liberties during wartime. This deficiency would be tolerable except for the tantalizing moments when Rehnquist enters the debate and condemns the wartime actions only to retreat without supporting his position.

In Part I of this review, I examine the key historical events discussed in Chief Justice Rehnquist's book and note particular instances where he stops short of analyzing the important questions at stake. In Part II, I review the overall story told by the episodes and attempt to answer Rehnquist's final question--whether judicial restraint during war is desirable.

1. HISTORICAL INTERSECTIONS OF CIVIL LIBERTIES AND WAR

   1. THE CIVIL WAR(6)

      1. Suspending the Writ of Habeas Corpus

         Lincoln came to office as a sectionally elected president and immediately confronted a country literally splitting apart with the early secessions of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana. (pp. 3-4) Barely a month after the inauguration, on April 12, 1861, confederate forces of South Carolina fired on Fort Sumter. Two days later, Union troops surrendered the Fort. (p. 15) Lincoln immediately summoned the active duty militia. In response to Lincoln's call to arms, several more states seceded, including Virginia. Coupled with Maryland's threatened secession, this left the Capital nearly surrounded by secessionists and their sympathizers. (pp. 16-18) When Massachusetts, in answer to Lincoln's call, sent troops to Washington, the troops made it as far as Baltimore, where confederate sympathizers attacked them. (pp. 20-21) The governor of Maryland then shut down the rail lines, essentially cutting off Washington from reinforcements.(7) (pp. 21-22)

         It was in this context that Lincoln first authorized the suspension of the writ of habeas corpus on April 27, 1861. (p. 25) In a letter addressed to Lieutenant General Scott, Commanding General of the Army, Lincoln wrote:

         You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the [] military line, which is now [or which shall be] used between the City of Philadelphia and the City of Washington ... you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where ... resistance occurs, are authorized to suspend that writ.(8) On May 25, 1861, Union forces arrested John Merryman for speaking out against the Union, recruiting soldiers to serve in the Confederate Army, and participating in the destruction of rail lines.(9) (p. 21) Merryman petitioned Chief Justice Roger Taney for a writ of habeas corpus. Taney issued the writ on May 26, 1861. Citing Lincoln's suspension of the writ, General George Cadwalader refused to comply and Chief Justice Taney immediately issued an attachment for contempt. (p. 33) When the dispatched marshal was refused entrance at the fort, Taney wrote his famous opinion in Ex parte Merryman.(10) (p. 34)

         Taney's opinion is a vigorous defense of the position that Congress alone has the power to suspend the writ. The opinion is grounded in an analysis of the structure of the Constitution; the placement of the suspension clause in Article I; the executive's duty to faithfully carry out the laws; and a rejection of the argument that necessity trumps the Constitution.(11) (pp. 36-38) Recognizing his lack of power to enforce the decision, Taney sent a copy to President Lincoln, noting in the opinion that "lilt will then remain for that high officer, in fulfillment of his constitutional obligation to `take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."(12) (p. 38)

         Despite this direct appeal[, Lincoln all but ignored the Merryman decision until Congress reconvened in July. He then argued two points: 1) the exigency of the situation demanded that he act pursuant to his higher duty of protecting the union from destruction; and 2) no laws had been broken because the executive possesses independent authority to suspend the writ.(13) On July 5, 1861, Attorney General Edward Bates presented a further defense of the actions arguing that the branches of government are coordinate and coequal.(14) (p. 44) Congress took no immediate action in the face ,of this exchange between the judiciary and the executive.(15)

         Rehnquist is critical of the dialogue between Lincoln and Taney on two grounds: First, Rehnquist finds Lincoln's response to Taney to be rhetorical rather than legal. He notes that Lincoln was "the advocate at his very best." (p. 38) Second, Rehnquist is critical of Taney's hasty decision-making that ignored the deliberative nature of the judicial process.(16) (pp. 4041) Rehnquist does not, however, critically engage either of the two important constitutional questions that arise from Lincoln's suspension of the writ: 1) which branch of government has the power to suspend the writ; and 2) whether Lincoln's rejection of Taney's Merryman decision was constitutionally proper. Rehnquist essentially ignores the first question despite the prolific literature on the topic.(17) With respect to the latter question, Rehnquist flatly asserts that the proposition that the President is not subordinate to the judicial branch "had been refuted by Chief Justice Marshall's opinion in Marbury v. Madison more than half a century earlier." (p. 44) This one line dismissal of the argument ignores a well-developed and very contentious academic debate regarding the power of the executive branch to engage in independent constitutional interpretation.(18) While Rehnquist gives his reader a palpable sense of history, he offers no thoughtful evaluation of the lawfulness of Lincoln's suspension of the writ or of the Lincoln administration's assertion that coequal branches of government possess coequal power to interpret the Constitution. For those the reader must turn elsewhere.

      2. The Vallandigham Affair--Military Arrests and Trials

         On September 24, 1862, Lincoln issued a proclamation providing that persons "discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels" should "be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission."(19) (p. 60) Pursuant to this directive, on April 19, 1863, General Ambrose Burnside, the Commanding General of the Department of Ohio, issued General Order 38.(20) General Order 38 provided, in part, that "'It]he habit of declaring sympathy for the enemy' ... would :no longer be tolerated in the Department of the Ohio...