“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
- 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.