The Court and the World

Chapter 1

Silence

Cicero and His “Political Question” Counterpart

“The Laws Fall Silent”

   Cicero set forth what would eventually become one of the best-­known legal principles concerning the role of courts during wartime. Two thousand years ago he wrote, “Silent enim leges inter arma,” which I should like to translate as “When the cannons roar, the laws fall silent.” When the senator wrote those words, he was responding to civil strife that had erupted in Rome, where armed gangs had taken control of the streets. They were never punished, for their leaders had been elected to public office. Still, we see the point of Cicero’s remark: When the security of the state is threatened, do not expect the laws to apply. To what extent has that principle governed the actions of American courts?

   Consider the principle in the context of the American Civil War. At the very outset, President Lincoln suspended the writ of habeas corpus. That ancient writ traditionally allows anyone in detention to challenge the lawfulness of his confinement by getting word to a judge that he is being held, in his view, without legal authority. And the judge can then tell the jailer, the local sheriff, say, to “bring me the body.” Questioning both the jailer and the prisoner, the judge can discover the legal basis, or the lack thereof, for the prisoner’s detention. It would be difficult to point to a more important legal protection against arbitrary imprisonment.

   President Lincoln’s suspension of the writ in effect allowed his military to arrest civilians arbitrarily, without court review. He had seen firsthand a pressing need for such an extraordinary measure. On the way to his inauguration, he had been forced to sneak through Baltimore under cover of night in order to avoid a pro-­secession mob, while transferring from one train station to another. Lincoln knew that Union troops from the West and the North would have to negotiate the same station transfer on their way south. And he feared the effect this might have on their ability to travel, on the city of Baltimore itself, and on the State of Maryland, which itself stood on the brink of secession.

   By suspending the writ, Lincoln intended to allow Northern troops to arrest disloyal Baltimore citizens. And that is just what they did. Early on the morning of May 25, 1861, on the orders of General William H. Keim, they arrested John Merryman, who had been a ringleader in anti-­Northern riots that spring, and held him at Fort McHenry, a nearby post under the command of General George Cadwalader. Merryman immediately asked a nearby federal court to issue a writ of habeas corpus. And the court’s judge, Supreme Court Chief Justice Roger Taney, sitting as a local circuit judge, agreed to do so.

   At first glance, Lincoln’s actions to stop judges like Taney from issuing the writ might seem constitutional, for the Constitution authorizes suspension of the writ of habeas corpus “when in cases of rebellion or invasion the public safety may require it.” But this grant of authority appears in Article I, which deals with Congress’s powers, not in Article II, which addresses the powers of the President. Hence, Taney concluded, the President, by acting without congressional authority, had violated the Constitution.

   President Lincoln’s reaction to the court’s decision is well known. He did not release John Merryman. Neither did he appeal the ruling, as he might have done. Rather, he defended his right to take decisive unilateral action. A few weeks after Merryman’s arrest, he asked Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” A week later Attorney General Edward Bates presented Congress with a report justifying Lincoln’s decision to suspend the writ of habeas corpus.

   Still, the same day as the Bates report, Merryman was released on bail, and Lincoln did not prosecute him. And two years later Congress itself suspended the writ of habeas corpus, thereby curing the constitutional defect. The controversy about the President’s powers fizzled out without any definite resolution.

   Merryman’s detention, however, is but one of many examples of how President Lincoln suspended or sidestepped constitutional protections of civil liberty in the name of national security. He also authorized his generals to censor the press, to prevent citizens from speaking vociferously against the war (accusing the President of “malfeasance,” for example), to arrest suspected supporters of the enemy, and, often, to hold prisoners without trial irrespective of whether ordinary courts where they might have been tried were open and functioning. The generals exercising this authority did so by general order; they did not need to prove that, say, hostilities required their actions. In this way, they imprisoned about thirteen thousand citizens during the war. Secretary of State William H. Seward once told a British minister,

   I can touch a bell on my right hand and order the imprisonment of a citizen of    
   Ohio; I can touch a bell again and order the imprisonment of a citizen of New 
   York; and no power on earth, except that of the President, can release them.
   Can the Queen of England do so much?

   This attitude reflects that of many American presidents during wartime. During World War I, the Wilson administration successfully prosecuted distributors of leaflets urging resistance to the draft. It barred leftist magazines from using the mails. And it jailed Eugene V. Debs, the leader of the American Socialist Party (who subsequently received nearly one million votes in the presidential election of 1920 while incarcerated). During World War II, President Roosevelt ordered the internment of more than seventy thousand Americans of Japanese origin, an action that the Supreme Court upheld.

   Roosevelt’s attorney general, Francis Biddle, once said that “[t]he Constitution has not greatly bothered any wartime President.” During war, the executive and legislative branches typically believe that the foreign threat—­not the preservation of civil liberties—­is the paramount concern. And at times throughout American history, the judiciary has agreed. While the Civil War raged, with the exception of Merryman, the courts did not meaningfully interfere with presidential or legislative decisions.

   Once the Civil War was over, however, the Court was in a position to take a different view, and in 1866 it heard the case of Ex parte Milligan. Two years earlier, just before the war’s conclusion, a Northern general stationed with his troops in Indiana had arrested Lambdin P. Milligan and four other civilians. The general charged them with conspiring to foment an insurrection designed to help the South. He set up a special military tribunal, which tried the accused, convicted them, and passed a sentence of death. The defendants asked an ordinary federal court to hear their claim that the army could not try American citizens in a special military court, at least not when conditions in the area were peaceful and ordinary civil courts were open. The case eventually reached the Supreme Court.

   Urging the Court to deny the defendants’ claim, the government’s lawyer took a page from Cicero and argued that “[t]he officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it.” The government maintained that the Constitution’s provisions protecting basic human rights are “peace provisions . . . and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”

   The Court unanimously rejected this claim. All its members agreed that the Constitution’s protections applied and that Milligan must be released. A minority of the justices added an explanation to the effect that Congress had not enacted legislation permitting military trials for civilians, implying that the result might have been different under such circumstances. The majority, however, held that the Constitution did not permit military trials of American civilians in places where, and at times when, ordinary civil courts were open, whether or not Congress enacted laws authorizing such proceedings.

   Milligan, then, represents something of a retreat on the part of the Court from the absolutism of Cicero, and a willingness to enforce constitutional protections in the face of a claim by the executive that the laws should be silent “amidst arms.” Still, it bears emphasizing that the case was decided only after the war had ended and relative normalcy had returned. We should not be surprised to find a different judicial attitude in later cases decided in the heat of battle, such as the World War II case of Korematsu. If Milligan signaled to the executive branch that there were limits to what the Court would permit in the name of wartime necessity, it was something less than a full or permanent flight from Cicero.

“The Political Thicket”

The doctrine of the “political question” is more specific and better developed than Cicero’s maxim as crisis jurisprudence, but as applied to questions of national security, it is nonetheless in the same spirit. It provides a technical legal basis for courts to refuse to consider the lawfulness of presidential action taken pursuant to either his wartime or his foreign affairs powers. Indeed, by walling off many of the President’s wartime and foreign affairs decisions from review, it is but one step removed from Cicero.

   The doctrine says that in certain instances, the Constitution gives not to the courts but to other branches of government the power to decide whether an action violates the Constitution. In this way, the laws, including the Constitution, do not necessarily fall “silent.” They still apply to the government action in question. But it is for Congress or the President, not the courts, to determine what the law requires given the national security threat.

   The doctrine has a venerable provenance. In 1803 Chief Justice John Marshall wrote in Marbury v. Madison: “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”

   The Court has since invoked the doctrine in both wartime and foreign relations cases. During the War of 1812, for example, the President called up the New York State militia for service. Jacob Mott, a member of the militia, refused to comply. He was court-martialed and convicted of refusing to report for duty. He appealed, and his case came to the Supreme Court.

   Mott conceded that the Constitution gives Congress the power to “provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.” He agreed that Congress had enacted a statute stating that

   whenever the United States shall be invaded, or be in imminent danger of invasion 
   from any foreign nation or Indian tribe, it shall be lawful for the President of the
   United States to call forth such number of the militia of the State or States most
   convenient to the place of danger, or scene of action, as he may judge necessary to
   repel such invasion.

But, Mott argued, the President had failed to establish the presence of an “imminent danger of invasion.” Hence he had not met the statutory requirement. And since the Constitution gave him no independent power to call up the militia, Mott argued his call-up was impermissible.

   The Court rejected Mott’s claim, not because it agreed with the President about the risk of invasion, but because it thought this risk was the kind of question that the Constitution denied the Court the power to decide. Justice Joseph Story wrote that

the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But . . . it is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. . . . [I]s it to be considered as an open question .  . . to be contested by every militia-­man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.

   The Court further developed the “political question” doctrine during the 1840s, in a case concerning the government of Rhode Island. The petitioners had argued that the new state constitution—­under which their rivals had claimed authority and called upon the federal government for military support—­violated the federal Constitution’s guarantee of a “republican form of government.” But the Supreme Court held that the matter was a “political question,” grounding its decision in the idea that the political branches should have unfettered power over national security matters. Referring back to Mott’s case, Chief Justice Taney explained why the Court could not second-­guess a determination by Congress or the President as to the legitimacy of a state’s government:

   After the President has acted and called out the militia [in support of one group alleging to be the true state government], is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order.

   The same theme would be expounded by the Court into the twentieth century, in Chicago & Southern Airlines, Inc. v. Waterman S.S. Corp., a case involving the award of an international airline route. A statute had given the courts the power to review route awards to airlines by the Civil Aeronautics Board. The Court, however, held that this power did not apply when the President himself had approved the final decision. That is because, as Justice Robert H. Jackson wrote, the

   President, both as Commander-­in-­Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.

   Not surprisingly, then, during the Vietnam War, lower courts invoked the “political question” doctrine in refusing to decide whether Congress had properly authorized the Cambodian bombing or the war itself. And the Supreme Court did not intervene.

   Many of these decisions—­particularly the Vietnam cases—­involve challenges to the lawfulness of a war itself. They do not necessarily prevent federal courts from deciding whether a presidential action violates an individual’s civil liberties, a different question. But in any event, during the past half-­century, the “political question” doctrine has gone into decline, having reached its jurisprudential high-­water mark in 1946, in Colegrove v. Green. There the Court decided that the doctrine prevented it from reviewing a claim that Illinois had unconstitutionally redrawn its voting districts as to ensure that some counties (typically rural ones) received representation disproportionate to their numbers, with the effect that each voter in the more populous districts now exercised less political influence than a voter in the less populous districts with the same congressional representation. The Court held that it “ought not to enter this political thicket” and that the remedy for unfairness in districting was for the electorate “to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.”

   Less than twenty years later the Court would overturn Colegrove. In Baker v. Carr, it did indeed enter the “political thicket,” deciding the constitutional question at issue and ultimately interpreting the Equal Protection Clause as obligating legislatures to draw districts according to the “one person, one vote” principle. The Baker Court would still acknowledge, however, that the “political question” doctrine remained valid outside the realm of electoral apportionment. In particular, it would continue to apply where there was “a textually demonstrable constitutional commitment of the issue to a coordinate political department[,] . . . a lack of judicially discoverable and manageable standards for resolving” the question, and where the Court could not decide the issue presented “without an initial policy determination of a kind clearly for nonjudicial discretion.” In other words, the doctrine apparently continued to have force in matters of war and national security.

   But since Baker, the Court has hesitated to apply the “political question” doctrine even to cases involving foreign affairs. In 1979, for example, several members of Congress petitioned to the effect that the President could not, without the consent of Congress, withdraw from a treaty with Taiwan. The Court debated whether it had the power to decide the case. Some justices maintained that it could not, for the case presented a political question. Others pointed out that the Court frequently decides whether the Constitution limits the President’s or Congress’s powers. Still others wrote that, even if the Court could sometimes determine the boundaries of congressional or presidential authority, it would not be prudent to do so in this case. Ultimately, the Court refused to decide even whether a political question presented itself. Instead, it dismissed the case in a per curiam order, without hearing oral arguments or addressing the underlying issue.

   More recently the Court considered a case questioning the lawfulness of a long-standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as “Jerusalem” rather than “Israel or Jordan” in his passport. The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as “Israel” if the citizen so wished. Did the statute unconstitutionally interfere with the President’s power to conduct foreign affairs?

   The lower courts had decided that the case presented an unreviewable political question. But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be “a familiar judicial exercise.” My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine. They consequently sent the case back to the lower court for a decision on the merits.

   Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.” The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty. She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves. What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-­related question.

   The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.