CRS Annotated Constitution

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Enemy Property.—In Brown v. United States,1540 Chief Justice Marshall dealt definitively with the legal position of enemy property during wartime. He held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but the right of Congress by further action to subject such property to confiscation was asserted in the most positive terms. As an exercise of the war power, such confiscation was held not subject to the restrictions of the Fifth and Sixth Amendment. Since such confiscation is unrelated to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or outside it, impairs his ability to resist the[p.326]confiscating government while at the same time it furnishes to that government means for carrying on the war.1541

Prizes of War.—The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.1542 Nevertheless, since international law is a part of our law, the Court will administer it so long as it has not been modified by treaty or by legislative or executive action. Thus, during the Civil War, the Court found that the Confiscation Act of 1861, and the Supplementary Act of 1863, which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation under either law, the Government was at liberty to proceed under the most stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.1543 Similarly, when Cuban ports were blockaded during the Spanish–American War, the Court held, over the vigorous dissent of three of its members, that the rule of international law exempting unarmed fishing vessels from capture was applicable in the absence of any treaty provision, or other public act of the Government in relation to the subject.1544

The Constitution at Home in Wartime

Personal Liberty.—“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.”1545


Ex parte Milligan, from which these words are quoted, is justly deemed one of the great cases undergirding civil liberty in this country in times of war or other great crisis, holding that except in areas in which armed hostilities have made enforcement of civil law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words were uttered after the cessation of hostilities, and the Justices themselves recognized that with the end of the shooting there arose the greater likelihood that constitutional rights could be and would be observed and that the Court would require the observance.1546 This pattern recurs with each critical period.

That the power of Congress to punish seditious utterances in wartime is limited by the First Amendment was assumed by the Court in a series of cases,1547 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1548 The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States.1549 Justice Holmes matter–of–factly stated the essence of the pattern that we have mentioned. “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”1550 By far, the most dramatic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native–born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of these persons by a curfew order,1551 even by a regulation excluding them from defined areas,1552 but that a citizen of Japanese ances[p.328]try whose loyalty was conceded could not be detained in a relocation camp.1553

A mixed pattern emerges from an examination of the Cold War period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld1554 and then in a series of cases was practically vitiated.1555 Against a contention that Congress’ war powers had been utilized to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.1556 It voided a law making it illegal for any member of a “communist–action organization” to work in a defense facility.1557 The majority reasoned that the law overbroadly required a person to choose between his First Amendment–protected right of association and his right to hold a job, without attempting to distinguish between those persons who constituted a threat and those who did not.1558

On the other hand, in New York Times Co. v. United States,1559 a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different majority concurred in denying the Government’s request for an injunction in that case.1560


1540 8 Cr. (12 U.S.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).
1541 Miller v. United States, 11 Wall. (78 U.S.) 268 (1871); Steehr v. Wallace, 255 U.S. 239 (1921); Central Trust Co. v. Garvan, 254 U.S. 554 (1921); United States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian–American Corp. v. Clark, 332 U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952); Handelsbureau La Mola v. Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386 U.S. 484 (1967).
1542 The Siren, 13 Wall. (80 U.S.) 389 (1871).
1543 The Hampton, 5 Wall. (72 U.S.) 372, 376 (1867).
1544 The Paquete Habana, 175 U.S. 677, 700, 711 (1900).
1545 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 120–121 (1866).
1546 “During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which were happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.” Id., 109 (emphasis by Court).
1547 Schneck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Surgarman v. United States, 249 U.S. 182 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919).
1548 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).
1549 Gilbert v. Minnesota, 254 U.S. 325 (1920).
1550 Schenck v. United States, 249 U.S. 47, 52 (1919).
1551 Hirabayashi v. United States, 320 U.S. 81 (1943).
1552 Korematsu v. United States, 323 U.S. 214 (1944).
1553 Ex parte Endo, 323 U.S. 283 (1944).
1554 E.g., Dennis v. United States, 341 U.S. 494 (1951); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); American Communications Association v. Douds, 339 U.S. 382 (1950).
1555 E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437 (1965).
1556 United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State, 378 U.S. 500 (1964). And see Schneider v. Smith, 390 U.S. 17 (1968).
1557 Sec. 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. Sec. 784 (a)(1)(D).
1558 Id., 389 U.S., 264–266. Justices Harlan and White dissented, contending that the right of association should have been balanced against the public interest and finding the weight of the latter the greater. Id., 282.
1559 403 U.S. 713 (1971).
1560 The result in the case was reached by a six–to–three majority. The three dissenters, Chief Justice Burger, id., 748, Justice Harlan, id., 752, and Justice Blackmun, id., 759, would have granted an injunction in the case; Justices Stewart and White, id., 727, 730, would not in that case but could conceive of cases in which they would.
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