Book Review: ALL THE LAWS BUT ONE, Civil Liberties in wartime
"Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" President Lincoln addressed to a special session of Congress, July 4, 1861. The author, our current U. S. Supreme Court Chief Justice, William H. Rehnquist, used Lincoln's quote as the title of his new book, to discuss the civil liberties in wartime, especially on the issue of habeas corpus (meaning, to get the body). The book was published around November 1998.
In writing this book, Rehnquist avoided legalistic jargon and used plain English. He told interesting stories with some little known episodes, explaining the background and motive of certain action. His writing could be easily understood. Three quarter of the work covered the history of jurisprudence of Civil Liberties of the Civil War period. In the remaining one quarter of the book, he continued to the WWI, WWII and the Korean War periods. He told stories on Lincoln's people: Seward, Chase, Bates, Cameron, Stanton and Scott etc.;on Lincoln's appointed Supreme Court Justices, David Davis, Noah Swayne, Samuel Miller, Stephen Field and Salmon Chase; on important legal precedents: Dred Scott, Ex Parte Merryman, Ex Parte Milligan (Ex Parte means, for the benefit of) plus the trials of (Lincoln's assasin) Booth's accomplices.
On the topic of habeas corpus, please refer to my article in the 2/98 Newsletter (or, the article in "My Civil War Essays.") On the origin and meaning on habeas corpus, please refer to Dave J. Kenney's 3/98 NL. Also please refer to Joe H. Geden's presentation, 3/98 NL, and my response in the 4/98 NL.
Rehnquist presented both views. It was (U.S. Supreme Court Chief Justice) Roger B. Taney's view that Lincoln had no power to suspend habeas corpus for he believed that only Congress had such power. Taney relied on the fact that the clause was written on Article 1, which exclusively described the power of the Congress. This is a restrictive view that interprets the Constitution narrowly and literally. Appointed by President Andrew Jackson more than a generation ago, Taney's perspective reflected archaic, conservative and narrow viewpoint. Just look at his decision (7 to 2) on Dred Scott case. He held Dred Scott, slave and Negro, could not be "citizen" nor "person", and slaves were merely "property" and therefore Scott lacked Jurisdiction or standing to pursue his case for freedom in Wisconsin, a free State. Of course, Taney's decision was later overruled by the passing of the 13th Amendment, the abolition of slavery. Roger B. Taney is a Marylander. Would you be surprised to learn that he ruled for the Marylanders, included many Legislators, who were jailed by Lincoln's military district commander, or military tribunal, in Fort McHenry (MD), Fort Lafayette (NY) and Fort Warren (MA), when Lincoln suppressed habeas corpus? Roger delivered his decision on Merryman, rebuking Lincoln's act. Lincoln simply ignored Taney, and did what he had to do ---------- to prevent Maryland from voting for secession in the Assembly. If Lincon did nothing, Maryland probably would secede. Could you imagine that Washington, DC, would be surrounded by 2 seceded States, Virginia and Maryland? The Capital of the United States would be in grave peril. Lincoln had to be pro-active and defended the Capital from ruin.
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. Constitution, Article 1, section 9, paragraphs 2.
Lincoln also pointed out that the Constitution was silent as to which branch of government might exercise the authority to suspend the writ of habeas corpus and asserted that in an emergency when Congress was not in session the President had the authority to do so. In fact, Lincoln was very reluctant to order the suspension, and only on the constant urging of his Secretary of State Seward, that he finally relented. I guess it is a sense of self-preservation that Lincoln was forced to do this. For if Maryland went, the city of Washington, the White House and the Capitol would be completely surrounded by the Rebels. In examining the expressed and implied interpretation, and the intent of the Legislation, the Executive Branch of the Government certainly has the power to execute the existing Constitutional Law. Later, in 1863, the Congress authorized the President to suspend the writ under national emergency. This is the predominant view.
Chief Justice Rehnquist utilized two chapters to discuss Milligan, which I had discussed with one page of writing (3/98 NL).
I am excited when I found out Rehnquist used the same source as I did in the (3/98 NL), to show that the Judiciary did not interfere President Andrew Johnson's suspension of habeas corpus on Mary Surratt's case (p. 165). Judge Andrew Wylie of the Circuit Court for the District of Columbia acquiesced to the order of Pres. Johnson, brought to the court by district commander Winfield Scott Hancock. This is a case law demonstrating the President has the authority to suspend habeas corpus.
Chief Justice Rehnquist concluded his thinking by citing the Roman dictum, in Latin, inter arma silent leges, which means, in time of war the laws are silent. His thinking superimposed my writing (3/98 NL), which stated,"In war, the civil laws remain silent." Again it confirms the view that Lincoln has the power to suspense habeas corpus. I am thrilled that my view synchronized with that of the Chief Justice. Rehnquist also described the defense of Civil Liberty on different cases in different wartime. The nature of each war determines the degree of the National Security's risk, which affected the Court to treat the defense of Civil Liberty on a case by case basis. I highly recommend the book. (1998)
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First posted on March 2, 2001
Uploaded on current server: March 19, 2009