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All the Laws but One: Civil Liberties in Wartime

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ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME, William H. Rehnquist. New York: Alfred A. Knopf, 1998. 256 pp. ISBN 0679446613. Amazon.com price $26.00.

Reviewed by Jon Roland, President, Constitution Society. Email: jon.roland@constitution.org

This is a treatise on the conflict between constitutional compliance and the doctrine of necessity, particularly during wartime. The title is from Lincoln's message of July 4, 1861, to Congress, justifying his proclamation of April 27, 1861, suspending the Habeas Corpus Act adopted by the First Congress, and following his defiance of the order of Chief Justice Taney in Ex Parte Merriman. Lincoln argued that although the qualified prohibition of suspension of habeas corpus in Article I Section 9 Clause 2 was grouped with the powers and prohibitions of Congress, the Constitution was silent concerning which branch could legally exercise the implied authority to suspend it, and asserted that in an emergency when Congress was not in session the president had that authority. He said that the writ of habeas corpus, which had been fashioned "with such extreme tenderness of the citizens' liberty," if strictly enforced as interpreted by Justice Taney would allow "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated." The original charges against Merriman were for treason and other offenses for involvement in the burning of bridges north of and leading to Baltimore, Maryland, but Merriman was arrested by federal troops, charged in a military court, and held at Fort McHenry. Due to delays by Taney and others in prosecuting the case against him, Merriman was released on bail in the summer of 1861 and never tried. The remaining members of Congress later adopted an act authorizing the president to suspend habeas corpus under certain circumstances.

From Lincoln's suspension of habeas corpus, the author then goes on to examine other events and issues involving the suspension of civil liberties in the Civil War, in World War I, and in World War II, including the Japanese internments and the establishment of martial law in Hawaii for three years. Besides Ex Parte Merriman, he examines the Prize cases of 1863, the cases of Ex Parte Vallandigham (1 Wallace 243, Feb. 1864), Ex Parte Milligan (4 Wall. 2, 1866), Ex Parte Mudd (17 F. Cas. 954, S.D. Fla, 1968) and prosecution of the alleged Lincoln assassination conspirators, U.S. v. Hudson, Pierce v. U.S., Abrams v. U.S., Schenk, Hirabayashi, Korematsu, and Endo, among others.

The key issue involved here was perhaps best stated by David Dudley Field, a counsel for the defense in the Milligan case, noted for his efforts to codify the common law, quoted by the author and here excerpted:

"The source and origin of the power to establish military commissions, if it exists at all, is in the assumed power to declare what is called martial law. I say what is called martial law; for, strictly speaking, there is no such thing as martial law.... Let us call the thing by its right name; it is not martial law, but martial rule. And, when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander.... There is a maxim of our law which gives the reason and the extent of the power: 'Necessitas quod cogit defendit.'" [Necessity justifies what it compels.]

It is always hazardous to read between the lines of a scholarly work, especially if the author is a tenured academic who can be presumed to have the freedom to make explicit all that he has to say. But when, as in this case, the author is Chief Justice of the U.S. Supreme Court, it is unavoidable. The author's readable exposition reads like a suspense novel, leading to the final chapter, the title of which is an ancient legal maxim: "Inter Arma Silent Leges" [In time of war the laws are silent]. The message is an ominous one: in times of crisis, such as a war, the Constitution has been violated, and is likely to be violated in such situations in the future.

The author's final paragraph is worth quoting:

"An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors. But even though this be so, there is every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."

This book confines itself to periods of wartime, but does not consider the excesses of the Cold War, and there is a clear implication that a similar book could have been written for periods of economic and other crises. One of the problems this situational compliance brings is that court decisions made under such conditions can establish precedents that continue to impair civil liberties long after the crisis is over. None of the precedents the author cites have been overturned, even if most of them are now disdained by commentators. And most of the precedents established during periods of economic distress are seldom disdained at all, despite our current long-term period of prosperity, but have become part of the catechism of the deification of the state. The Cold War is over, but many of the practices and precedents established thereunder continue unabated.

What Justice Rehnquist seems to be saying to his readers is that when there are strong political forces threatening their civil liberties they can't count on the courts to protect them, or to restrain the executive and legislative branches from doing whatever they might want to do. Without a strong public outcry, most such violations will never obtain justice, nor will constitutional compliance be maintained. On the other hand, his final paragraph may signal an intent to begin to move toward a jurisprudence of original understanding, now that the Cold War is over, and that U.S. v Lopez may have been a shot across the bow of the present New Deal Establishment. What the courts need to proceed further is public support.

This book is written for a general audience, so the author avoids the legal jargon that might repel laypersons. Recognizing that, I still have the criticism that not all of the cases mentioned have complete citations in the endnotes, allowing scholars and laypersons alike to do further research on them. The book would also have been better if the year of events would have been stated more often. Providing only the month and date, for events spanning several years, can be confusing.

"All the Laws but One" was published in 1998, but it somewhat anticipates the contentious post 9-11 question of how far the U.S. government be allowed to curtail civil liberties to protect public safety. The book's primary value is that it allows a glimpse into the mind of someone who will be deciding the answer to that question.

Contrary to some reviewers' comments here, Chief Justice Rehnquist's position on the matter is more to the middle than one might expect. While he believes in a balancing tension between liberty and order, and that the scales quite naturally tip towards order in wartime, he is also critical of some executive decisions that rashly peeled away civil liberties under the guise of wartime necessity.

More than three-quarters of this book focuses on executive power, and the judiciary's response to the use of that power, during the U.S. Civil War. The rest of the book looks mainly at the curtailment of civil liberties during WW1 and WW2. Rehnquist rarely considers at any length, however, the proper judicial response to the scaling back of civil liberties when war has not been declared, but a clear threat exists.

The book is highly sensible in its viewpoints. Unfortunately, Rehnquist is not a natural writer and his account often gets bogged down in his prose. His history of events sometimes feels tacked on to his analysis of the legal cases. If the author was not the Chief Justice, and the subject matter not of such compelling contemporary relevance, there would be little reason to bother with this book.

Chief Justice Rehnquist has now written 3 books, all of which I have read. I actually don't find them too controversial, although some of the internet reviewers seem to. I do find all of Rehnquist's books, especially this one, to be great reviews of the relevants cases and controversies about a given topic. He is especially thorough in this book, tracing the suppression of civil liberties in the Civil War, World War I and World War II. He covers numerous cases during the Civil War (McCardle, Milligan), as well as an extensive look at Johns Wilkes Booth's murder of President Lincoln and its aftermath.

Supreme Court justices do not often publicly announce their philosophies outside of their opinions. Although Rehnquist seems to be objective for the most part, this book is still a fascinating look into the mind of one of most influential justices of the past quarter century.

I rated this book at 4 stars, but probably would have given it 3.5 if I had that option. It is a good book -- better than average -- but is less than it could have been.

Rehnquist examines the suspension of the writ of habeus corpus during three periods of war in American history: the Civil War, World War I, and World War II. Roughly 2/3 of the book is given to the Civil War issues, and one senses that the other two sections were added primarily to fill out the work. Rehnquist does a fine job of setting up the relevant historical background of each of these eras and of outlining the opposing viewpoints considered in the Supreme Court cases that resulted. At times, it is difficult to discern Rehnquist's own opinion regarding the events and decisions he describes. In the end, however, he stakes out a moderate position, acknowledging that at times the government had justifiable reason for exercising a Constitutional option to suspend habeus corpus while also arguing that in many of these instances authorities had overstepped their bounds.

The main criticism of the work is its cursory nature. What Rehnquist gives the reader is good. One only wishes he had given us more.

Chief Justice of the United States William Rehnquist wrote this book well before anyone could have imagined 9/11 and its aftermath, but these words written in peacetime seem especially appropriate now.

Rehnquist offers a balanced and sensitive discussion of some of the major issues in the history of American civil liberties in wartime. The bulk of his book focuses on Lincoln's suspension of habeus corpus during the Civil War. However, issues stemming from the World Wars, such as the suppression of speech and the internment of Japanese-Americans, are also considered in a thoughtful way, both from the perspectives of the times of the respective cases as well as that of today, benefitting from the hindsight history affords.

The Chief Justice seems to take great pains to explain otherwise complicated legal proceedings in a way that is accessable to virtually everyone. For anyone seeking to make sense of the debates over modern-day civil liberties, this book serves as an excellent introduction to the actions of those who have come before us.

While a surprisingly engaging descriptive story of Civil War, World War I and II vignettes, this book was far from the "major contributor to our understanding of the great American experiment" that the dust jacket proclaims. Mr. Rehnquist is adequate in his historical background, and obviously enjoys explaining the history of the Supreme Court. I voraciously read the entertaining beginning chapters, expecting them to be a prelude to incisive commentary and analysis, only to find that the shallow descriptive text was all there was. By the final, repetitive chapter, I was left wondering what the point of the book was. While I appreciated the books accessiblity to the non-lawyer, more critical thinking would have been appropriate from the Chief Justice.

Worth reading if only because the Rehnquist court considers, in its 2003-4 term, the fate of wartime detainees, both US citizens and foreign prisoners, and whether they can be held without due process and possibly tried by military tribunals. He reviews past clashes between civil liberty and national security, notably the Civil War era. He does highlight some little-known cases -- the military courts' overreaching in WWII Hawaii, for example. Other commentators noted, however, he could've said more about the Youngstown (steel seizure) case of 1952 (he clerked for Justice Robert Jackson then), a major check to wartime Presidential power.

Still, worth reading with the 2004 cases in mind, though I would also recommend Mark E. Neely's "The Fate of Liberty" for another view of the Civil War cases, some of which are still current case law.

My guess (written 2/04), and that's all it is from reading this book, is that Rehnquist may be inclined to support the national security side, but would resist any attempt to exclude Federal courts from oversight or final review.

"Without question the government's authority to engage in conduct that infringes civil liberty is greatest in time of DECLARED war" (emphasis added). But what exactly is meant by the notion of civil liberty? "It is not simply 'liberty' but CIVIL liberty of which we speak" (emphasis in Rehnquist's original). "The word 'civil', in turn, is derived from the Latin word 'civis', which means 'citizen.' A citizen is a person owing allegiance to some organized government, and not a person in an idealized 'state of nature' free from any governmental restraint." "This book,' Rehnquist states, is "limited to cases of declared war, together with the Civil War" (the equivalent of a declared war---and takes up 170 pages of this book; but excludes all others wherein Congress never specficially declared war, whether Congress authorized the use of force or not). Rehnquist: "There are marked differences between the government's conduct during the Civil War, during World War I, and during World War II. One of the main differences is that in the Civil War, the Lincoln administration relied on presidential authority or on the orders of military commanders to curtail civil liberties, while in the 20th century wars, the executive branch resorted much more to laws passed by Congress." Rehnquist concludes that "the President may do many things in carrying out a congressional directive that he may not be able to do on his own." But, regardless from the point of view of governmental authority under the Constitution "there remains a sense that there is some truth to the maxim 'Inter arma silent leges,' at least in the purely descriptive sense." "Inter arms silent leges" is latin for 'In the face of arms, the law falls mute,' or 'In time of war the laws are silent.' Hence "the reluctance of courts to decide a case against the government on an issue of national security during a war." Thus a main point of this work by William Rehnquist (written in 1998) is that a declaration of war makes even more of a difference during time of hostilities. (And it is why Tony Blankley in his book "The West's Last chance" has called for a declaration of war against Islamists.) "In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order---in favor of the government's ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail" (Rehnquist's other main theme). As Lincoln asked in a message to a special session of Congress, July 4, 1861: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" In support of this view Rehnquist quotes Judge Learned Hand who opined that "A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only the savage few...." Cheers

Rehnquist wrote this before Sept 11, but it is a book that has added meaning today. Mostly the Chief Justice focuses on the suspecnsion of Habeas Corpus by ABraham Lincoln and its ramifications for Civil Liberties and the abuse of them during war time. This is not a lively account, but it is accurate, well thought out and makes for interesting reading, having added strength of authority by nature of its author.

Seth J. Frantzman

The Writ of Habeas Corpus is perhaps the most basic right established in common law. The phrase "habeas corpus" is latin for "produce the body", and a writ of habeus corpus is an order from a judge to an official requiring the official to produce a prisoner in the judge's court to justify the imprisonment. It is the testing of this basic right, in wartime, which Chief Justice Rehnquist examines in this book.

Rehnquist concentrates on three periods in American history where habeus corpus was suspended: the Civil War, World War One and World War Two. He describes, analyzes, and even criticizes how the courts, and ultimately the Supreme Court, decided how and to what extent civil rights can be suspended in wartime.

As insight into the Supreme Court's decisions on habeas corpus, the book is invaluable: e.g. holding civilians prisoners without charges is OK, but prosecuting them in a military court is not. As raw material this is timely. However as a whole the book fails to hold our interest, despite its brevity. The book's chief flaw is also possibly a good judge's virtue: impartiality. Rehnquist avoids conveying a strong position on what he thinks the law should be and what future course it should take. Just as well. Better to have as Chief Justice a known conservative unwilling to commit himself but willing to listen, than to have a clear doctrinaire who expresses opinions too clearly from which he won't deviate.