Constitutional protections not only apply "equally in war and peace" but also in a dramatic extension of this legal shield to "all classes of men, at all times, and under all circumstances." No emergency not even open civil war warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws."
As I noted earlier in the piece:
It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The Justice who authored the majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself.
This is what the Court decided:"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."The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush's great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the after-effects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America's fractured society. The Milligan ruling was, in the words of legal scholar John P. Frank, "one of the truly great documents of the American Constitution," a "bulwark" for civil liberties, expansive and exacting in the Constitutional protections it spelled out.
The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes but not always seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.It was this case that the Court five of whom were Lincoln appointees overturned in such a decided fashion.
As noted, that ruling was made in a nation still
reeling from a savage, titanic war fought on its own territory. Even in the
midst of such turmoil, the idea that "the laws must adjust" to the exigencies of
war -- even the extremity of ruinous civil war -- was considered anathema, even
to conservative jurists with close ties to the government.
But no
longer. Although, unlike a civil war, even the worst terrorist attack imaginable
would pose no existential threat to the nation, today the merest whisper of the
possibility of a limited terrorist incident shakes the United States to its
foundations -- and people willingly line up to be stripped naked by machines,
while courts crawl on their bellies before the terrible majesty of unrestrained
executive power.
Be assured: the "rule of law" means nothing, protects
nothing, sustains nothing. It can always be twisted and stretched by cowards,
courtiers and power-seekers. Arthur Silber, as he does so often, cuts to heart
of the matter in this powerful essay from 2009, "Concerning the State, the Law, and Show
Trials":
The law is not some Platonic Form plucked from the skies by the Pure in Heart. Laws are written by men, men who have particular interests, particular constituencies, particular donors, and particular friends. ... Laws are the particular means by which the state implements and executes its vast powers. When an increasingly authoritarian state passes a certain critical point in its development, the law is no longer the protector of individual rights and individual liberty. The law becomes the weapon of the state itself -- to protect, not you, but the state from threats to its own powers. We passed that critical point some decades ago. The law is the means by which the state corrals its subjects, keeps them under control, and forbids them from acting in ways that the overlords might perceive as threatening. In brief, today, in these glorious United States, the law is not your friend.
Indeed it is not. In our "low dishonest" century, the
"rule of law" has become the "lie of Authority" that Auden speaks
of. It will not save us. What matters -- as always -- is moral courage in
the face of power's encroachments. Sometimes this can be found within an
institutional framework, as in the Supreme Court's bold expansion of legal
rights to all people, "at all times, and under all circumstances" back in 1866;
and of course it can be found in the lives and actions of individuals, acting
singly or in concert. Auden again:
Defenseless under the night
Our world in stupor lies;
Yet, dotted everywhere,
Ironic points of light
Flash out wherever the Just
Exchange their messages:
May I, composed like them
Of Eros and of dust,
Beleaguered by the same
Negation and despair,
Show an affirming flame.
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