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Invoking emergency measures , whether by Presidential declaration orperformed at the States or localities implicitly has effect upon civil liberty
enjoyed in the society.
Securing "the Blessings of Liberty":To secure means more than to obtain;
but also safeguard, as with a superior form of government; not one which is
the source of Constitution", but one which preserves an understanding
toward the values.
The first Congress passed Legislation which quickly came to test the new
central Government. It provided that "federal judges certify the conditions of
Federal laws being obstructed and too powerful to be suppressed by the
ordinary course of judicial proceedings.0 It provided for the President authority
to suppress the "combination " of conditions. When President Washington
received a certificate from Supreme Court Justice James Wilson that such conditions prevailed in western Pennsylvania, the President reacted to the
"whiskey rebellion" , which tested excise taxe passed by Congress. Farmers
west of the Allegheny had found that the whiskey they produced was quite
profitable when it got to market,. When revenue agents of the newly formed
nation were rebuffed with ideas of "privacy, liberty, and the like, the matters
were brought to the Court. Protest meetings formed . And revenue Officers
were mobbed. President Washington ordered the mobs to immediately
disperse. The President then assembled a militia of 15,000. In military manner
they marched through Western Pennsylvania and arrested the mob leaders.
They then turned the mob leaders over for trial to civilian authorities. Others returned to their farms. The President then reported to the Congress " now
ready to maintain the authority of laws against licentious Invasions, as they were
to defend against their rights against usurpation". 1
"The answer to this question will depend, in turn, on just what is meant by
civil liberty. It is not "liberty" but civil liberty of which we speak. The word "civil",
in turn, is derived from the Latin word civis, which mean "citizen". A citizen is
a person owing allegiance to some organized government, and not a person
in an idealized "state of nature" free of any government constraint. 2
Justice Rehnquist continued the consideration with a historical portrayal the
invoking of martial law;that of Andrew Jackson and the taking of New Orleans.
"On December 16, Jackson proclaimed martial law throughout the city and
imposed drastic restrictions on any of the movements in or out of it. " The
Battle of New Orleans came on January 8, and one 'great American victory"--
despite the Treaty of Ghent being signed and ceasing hostility on December
24.
In the meantime an anonymous appeared in a French language newspaper
"it is high time the laws should resume their dominion; that the citizens of this state return to the full enjoyment of rights; that in acknowledgement that be the debt to General Jackson for the preservation of our city-- and the defeat of the British-- We do not feel much inclined through our gratitude to sacrifices our priviledges, less than any other, that of expressing our opinion of the acts of Jackson and his administration.
According to Mr Rehnquist, General Jackson obtained the name of the writer of the article from the editor of the paper. He issued to arrest 'Louis Louialler for inciting mutiny and disaffection. Louialler obtain a writ of habeas corpus from the Federal District Judge . Rather than respond to the writ, Jackson ordered Judge Hall arrested and brought the judge to the same prison that Louialler was in.3
A military tribunal tried and acquitted Louialiller. Jackson characteristically disregarded the decision and kept Louialler in prison. He also ordered Judge Hall escorted to the boundary of the city and released.
Fortunately General Jackson "government" was not a permanent government. For if it was it would not be the form of government which is a republican government. It's duty lay a transitional period. One which is resourced to meet a crisis, perform those executive functions to carry forward upon the crisis, and then dissolve as the term is complete.
In the mid 19th century, The Supreme Court upheld 'charter government of Rhode Island which, according to the Chief Justice was the result of competing factions of Rhode Island declaring the other government illegal and otherwise void. The resulting escalations between the original "charter government" and the newly installed "constututionally elected administration-- with the charter government declaring a call of martial law. Well within the events that transpired,
" the home of a man named Martin Luther was broken into without a warrant".4
The action was defended as justified because of the state of martial law and
in particular because Luther was a suspect of aiding the rebelling forces. The case was heard in the Federal court but according to Justice Rehnquist ,and ended in the Supreme Court . There it was argued that the Fourth Amendment
had been violated-- and in particular that provision which pertains to guarentee
a republican form of government. Chief Justice Taney delivered an opinion that
the break-in did not violate the Constitution:
Unquestionably a military government established as the permanent
government of the State, would not be a republican government and it would be
the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. . It was merely for the crisis, and to meet the
peril in which the existing government was placed by the armed resistance to its
authority. It was so understood and construed by the State authorities. And unquestionably a State may use its miltary power to put down armed insurrection
to strong to be controlled by civil authority. 5
Justice Rehnquist pointed out that the Court was not unaminous
in its opinion-- and Justice Levi Woodbury provided a protest while concurring
upon the right of the charter government to declare martial law:
by it , every citizen, instead of reposing under the shield of known and fixed laws, exists with a rope around his neck, subject to be hung by a military despot at the next lamp-post, under the sentence of some drum head court martial"6
A few years later, during the civil war, there was the case of Vallandigham. He was a 'peace Democrat' or Copperhead candidate for Governor of Ohio. He had been a congressman briefly in the late 1850's after a notable career in the bar and legislaure of Ohio. Vallandigham had supported many causes which efforted
against the war, and with sympathy to the Confederates .
According to Justice O'Connor, in May 1863 General Ambrose Burnside had announced that anyone who was in the" habit of declaring sympathies for the enemy was a traitor and subject to arrest ."7 " Vallandigham took Burnside's
proclamation as a challange. At a public rally opening his campaign as Governor of Ohio, gave a vitriolic speech , denouncing the President as "King Lincoln",
accused Burnside of being a heavy handed tyrant, and calling for a negotiated
peace with the South"8
Burnside, renowned for his sideburns and being on of the succession of pre-Grant Commanders of the Union Armies,read several accounts of the speech.
Burnside had ordered "observers" to the various Democratic functions, and when he read the accounts, he ordered Vallandigham arrested . Democratric leaning newspapers zealously ran articles "that Lincoln had finally shown his true colors" 8 . Vallandigham became an overnight sensation.
Burnside convened a military commision to try Vallandigham. Vallandigham
protested at the hearing that the court had no authority over him as he was a
civilian.9 " The Judge Advocate General the proceeded to read to Vallandigham
the charge against him: "publically expressing in violation of General Order No. 38...sympathies for those in arms against the Government of the United States,
declaring disloyal statements and opinions, and with the objects and purpose
of weakening the power of the Government in its effort to suppress the unlawfull rebellion". As the defendant refused to enter a statement as to how he pled, a plea of " not guilty" was entered, and the proceedings then heard witnesses. Two "observers" testified as to what they heard and their notes. The Commission
then found Vallandigham guilty and sentenced him to imprisionment for the
duration of the war.
The clamoring of newspapers and Vallandigham supporters continued.
Burnside had issued his order, and Burnside meant it . In his zealousness, he deployed troops to "shut down the presses" of the Chicago Times, which had been critical of both the war and held opposition to the draft. 10
The whole became as much a political question for the Lincoln Administration. The Copperheads would promote that the actions were further "proof that Lincoln was a petty tyrannt". A couple weeks after the military tribunal rendered
its plea, the Lincoln cabinet discussed the Vallandigham case. The cabinet
held general agreement that Burnside had been overzealous, but as it had been,
it was best to slow the political momemtum. It was agreed that the sentence would comply with with Burnside's general order; which read that the traitors
would be tried or "sent to into the lines of their friends".11Vallandigham was
then escorted to the Confederate lines in Tennesee and set free.
Lincoln then rescinded Burnside's order, called back the troops which had been sent around the suspect newspapers, and admonished Burnside about
the arrest of civilians ,and the shut down of free press. It instructed that further
action upon civilians or newspapers would require approval from Washington.12
According to Justice O'Connor,"Although Lincoln had undone much of the damage regarding the arrest of Vallandigham , Lincoln set more to make his point. "He explained to a group of New York Democrats that he would not allow civilians to be arrested 'merely for damaging the political prospects of the Administration or the personal interests of the commanding general.Arrests would be made only to protect national security. Now, national security is always a difficult line to draw, especially during a civil war. But the line had to be drawn somewhere, if the Union was to be preserved. That line was at agitation "13
Justice Rehnquist noted that Burnside's order had no" pedigree" over
civilians. " Vallandigham was not only tried by a military commission rather than
a jury, but the charge upon which he was tried was that he violated an order
issued by Burnside-- an order which forbade the expression of sympathy for the enemy. A criminal trial in a civil court must be based on a charge that the defendant engaged in conduct prohibited by an Act of Congress ( in a federal
court) , or by an act of a state legislature ( in a state court). Burnside's orderhad no such pedigree; itwas not even based on an oredr of the President or the Secretary of War. It originated with Ambrose Burnside, the commanding general of the military districts of Ohio. Members of the armed forces are naturally accustomed to being governed by such orders. But Vallandigham was not a soldier; he was a civilian.14
Justice O'Connor wrote " the Vallandigham episode is emblematic of
Lincoln's approach. The President was not out to trample on the First Amendment. He was not intent on crushing the political opposition. He suspended the writ of habeas corpus in response to perceived military threats
to the Union..... These words, I think, reveal Lincoln's awareness that he was not battling just for a territory on a map. He was battling for a nation "conceived in
Liberty :
( Lincoln asking)
What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers , or the strength of our gallant and disciplined army. These are not our reliance against a resuption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men.15
We could conclude that there is nothing inherently wrong with the legal framework of transitional government only as it is not the permanent replacement, nor do those advocate or otherwise provide comfort to an enemy or the overthrow of the United States. And that certain executive actions are inherent in the provision of peace and order.
