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.”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

Enemy Aliens.

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

Eminent Domain.

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

Footnotes

1748
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866). back
1749
“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). back
1750
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). back
1751
40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918). back
1752
Gilbert v. Minnesota, 254 U.S. 325 (1920). back
1753
Schenck v. United States, 249 U.S. 47, 52 (1919). back
1754
Hirabayashi v. United States, 320 U.S. 81 (1943). back
1755
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. back
1756
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. back
1757
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). back
1758
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). back
1759
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). back
1760
Section 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. § 784(a)(1)(D). back
1761
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. back
1762
403 U.S. 713 (1971). back
1763
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. back
1764
1 Stat. 577 (1798). back
1765
6 WRITINGS OF JAMES MADISON 360–361 (G. Hunt ed., 1904). back
1766
40 Stat. 531 (1918), 50 U.S.C. § 21. back
1767
335 U.S. 160 (1948). back
1768
317 U.S. 1 (1942). back
1769
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.”). back
1770
Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852). back
1771
120 U.S. 227 (1887). back
1772
120 U.S. at 239. back
1773
H.R. REP. NO. 262, 43d Cong., 1st Sess. (1874), 39–40. back
1774
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). back
1775
United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and Black dissented. back
1776
Block v. Hirsh, 256 U.S. 135 (1921). back
1777
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. back
1778
Block v. Hirsh, 256 U.S. 135, 156 (1921). back
1779
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). back
1780
Bowles v. Willingham, 321 U.S. 503, 519 (1944). back
1781
321 U.S. at 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective. back
1782
Act of October 22, 1919, 2, 41 Stat. 297. back
1783
United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921). back