CONSTITUTIONAL RIGHTS IN WARTIME
Constitution and the Advance of the Flag
Theater of Military Operations.
Military law to the exclu- sion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. This view was assumed by all members of the Court in Ex parte Milligan,1732 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Although unanimous in the result, the Court divided five-to-four on the ground of decision. The point of disagreement was over which department of the government had authority to say with finality what regions lie within the theater of military operations. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning, and in which there were no hostilities, does not qualify.1733 The minority argued that the question was for Congress’s determination.1734 The entire Court rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation.1735
Similarly, in Duncan v. Kahanamoku,1736 the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare martial law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor’s order.
It has seemed reasonably clear that the Con- stitution does not follow the advancing troops into conquered territory. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President.1737 “What is the law which governs an army invading an enemy’s country?” the Court asked in Dow v. Johnson.1738 “It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law—the law of war—and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy’s country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.”
These conclusions follow not only from the usual necessities of war but also from the Court’s doctrine that the Constitution is not automatically applicable in all territories acquired by the United States. The question turns upon whether Congress has made the area “incorporated” or “unincorporated” territory.1739 In Reid v. Covert,1740 however, Justice Black asserted in a plurality opinion that wherever the United States acts it must do so only “in accordance with all the limitations imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.”1741 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court; thus, it must be regarded as a questionable rejection of the previous line of cases.1742
In Brown v. United States,1743 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 Amendments. 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 his reach, whether within his territory or outside it, impairs his ability to resist the confiscating government and at the same furnishes to that government means for carrying on the war.1744
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.1745 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.1746 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.1747
The Constitution at Home in Wartime
“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.”1748
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. The Court held 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.1749 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,1750 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1751 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.1752 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.”1753
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 order1754 and even exclude them from defined areas by regulation,1755 but that a citizen of Japanese ancestry whose loyalty was conceded could not continue to be detained in a relocation camp.1756
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 upheld,1757 and then in a series of cases was practically vitiated.1758 Against a contention that Congress’s war powers had been used to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.1759 It voided a law making it illegal for any member of a “communist-action organization” to work in a defense facility.1760 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.1761
On the other hand, in New York Times Co. v. United States,1762 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.1763
The Alien Enemy Act of 1798 authorized the President to deport any alien or to license him to reside within the United States at any place to be designated by the President.1764 Though critical of the measure, many persons conceded its constitutionality on the theory that Congress’s power to declare war carried with it the power to treat the citizens of a foreign power against which war has been declared as enemies entitled to summary justice.1765 A similar statute was enacted during World War I1766 and was held valid in Ludecke v. Watkins.1767
During World War II, in Ex parte Quirin, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within the United States.1768 Chief Justice Stone found that enemy combatants, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals. Because this use of military tribunals was sanctioned by Congress, the Court has found it unnecessary to decide whether “the President may constitutionally convene military commissions ‘without the sanction of Congress’s in cases of ‘controlling necessity.’ ”1769
An oft-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.1770 In United States v. Russell, decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,1771 also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. “In such cases,” the Court said, “it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.”1772
Meanwhile, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.1773 In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.1774 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.1775
Rent and Price Controls.
Even at a time when the Court was using substantive due process to void economic regulations, it generally sustained such regulations in wartime. Thus, shortly following the end of World War I, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants to continue in occupancy provided they paid rent and observed other stipulated conditions.1776 Justice Holmes for the majority conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations,1777 but noted that “a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation.”1778
During World War II and thereafter, economic controls were uniformly sustained.1779 An apartment house owner who complained that he was not allowed a “fair return” on the property was dismissed with the observation that “a nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control . . . which will assure each landlord a ‘fair return’ on his property.”1780 The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.1781
But, in another World War I case, the Court struck down a statute that penalized the making of “any unjust or unreasonable rate or charge in handling . . . any necessaries”1782 as repugnant to the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it.1783
- 71 U.S. (4 Wall.) 2 (1866).
- 71 U.S. at 127.
- 71 U.S. at 132, 138.
- 71 U.S. at 121, 139–42.
- 327 U.S. 304 (1946).
- New Orleans v. The Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Santiago v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952).
- 100 U.S. 158, 170 (1880).
- De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904).
- 354 U.S. 1 (1957).
- 354 U.S. at 6, 7.
- For a comprehensive treatment, preceding Reid v. Covert, of the matter in the context of the post-War war crimes trials, see Fairman, Some New Problems of the Constitution Following the Flag, 1 STAN. L. REV. 587 (1949).
- 12 U.S. (8 Cr.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).
- Miller v. United States, 78 U.S. (11 Wall.) 268 (1871); Steehr v. Wallace, 255 U.S. 239 (1921); Central Union 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).
- The Siren, 80 U.S. (13 Wall.) 389 (1871).
- The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867).
- The Paquete Habana, 175 U.S. 677, 700, 711 (1900).
- Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866).
- “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.” 71 U.S. (4 Wall.) at 109 (emphasis by Court).
- Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Sugarman 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).
- 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).
- Gilbert v. Minnesota, 254 U.S. 325 (1920).
- Schenck v. United States, 249 U.S. 47, 52 (1919).
- Hirabayashi v. United States, 320 U.S. 81 (1943).
- Korematsu v. United States, 323 U.S. 214 (1944). The five-Justice majority opinion in Korematsuwas careful to state that it was ruling on exclusion only, and not on compelled reporting to and remaining in an assembly center or relocation camp, which were the highly likely consequences of obeying the exclusion order under the regulation. 323 U.S. at 222–23.
- Ex parte Endo, 323 U.S. 283 (1944). The Endo Court expressly avoided a direct constitutional ruling, holding instead that continued detention could not be supported by the statute and executive orders that underlay the detention program. 323 U.S. at 297–300.
- 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).
- E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437 (1965).
- United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State, 378 U.S. 500 (1964). See also Schneider v. Smith, 390 U.S. 17 (1968).
- Section 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. § 784(a)(1)(D).
- 389 U.S. at 264–66. 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. at 282.
- 403 U.S. 713 (1971).
- The result in the case was reached by a six-to-three majority. The three dissenters, Chief Justice Burger, 403 U.S. at 748, Justice Harlan, id. at 752, and Justice Blackmun, id. at 759, would have granted an injunction in the case; Justices Stewart and White, id. at 727, 730, would not in that case but could conceive of cases in which they would.
- 1 Stat. 577 (1798).
- 6 WRITINGS OF JAMES MADISON 360–361 (G. Hunt ed., 1904).
- 40 Stat. 531 (1918), 50 U.S.C. § 21.
- 335 U.S. 160 (1948).
- 317 U.S. 1 (1942).
- Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006). But see, id. at 591 (“Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other part of that document authorizes a response to the felt need.”).
- Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852).
- 120 U.S. 227 (1887).
- 120 U.S. at 239.
- H.R. REP. NO. 262, 43d Cong., 1st Sess. (1874), 39–40.
- United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United States v. Toronto Navigation Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945).
- United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and Black dissented.
- Block v. Hirsh, 256 U.S. 135 (1921).
- But quaere in the light of Nebbia v. New York, 291 U.S. 502 (1934), Olsen v. Nebraska ex rel. Western Reference and Bond Ass’n, 313 U.S. 236 (1941), and their progeny.
- Block v. Hirsh, 256 U.S. 135, 156 (1921).
- Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 742 (1948).
- Bowles v. Willingham, 321 U.S. 503, 519 (1944).
- 321 U.S. at 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective.
- Act of October 22, 1919, 2, 41 Stat. 297.
- United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).