The Constitution in Wartime

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

Comments

Re:These Are The Terms

[Fecal Troll Matter]

Thomas Jefferson fucked slaves.

Re:Well..

[pubudu]

Actually, I was reading that, in the US, there is some law.. I forget the name. Something about declaring a state of national emergency. In such a state, the president has power to, well, basically, do anything, and ignore the constitution.

The U.S. President has a variety of emergency powers, but none of them can in any way affect the rules set out in the Constitution. Congress, through the years, has expanded presidential power; these powers came with strings attached. In emergency, some of these strings come off, but the basic constitutional protections remain.

This is not to say that Presidents have not violated the Constitution. Lincoln suspended the right of filing writs of habeas corpus (as did Davis). The loyalty oaths and attendant disqualifications from office may have constituted ex post facto laws and bills of attainder, but the Fourteenth Amendment, in making such disqualifications part of the Constutition, resolved that issue. And let's not forget about internment camps during World War II.

Presidents may act unconstitutionally, but unlike Great Britain, unconstitutional acts, if they go unpunished, do not set a precedent for their constitutionality.

Re:Well..

[Purple_Walrus]

This is called the Elastic Clause... Certain parts of the constitution can be ignored if it is used.

For example, it was used during WWII to send all those Japanese Americans to camps out in the midwest.

Civil liberties and war time.

[miguel]

You migth be interested in reading a few articles by professor Howard Zinn:

The Bill of Rights. The Bill of Rights and how they are being routinely ignored by the government.

Free Speech: Second thoughts on the First Amendment. Another very interesting read.

I have been lucky enough in the past few weeks to attend a couple of Howard Zinn's talks in Boston.

Miguel.

Inaccurate at best. Please research first.

[dangermouse]

It turns out that every single one of those Executive Orders has been revoked and replaced. This is what I found from the NARA disposition tables:

10990 -> 11612 -> 11807 -> REVOKED BY 12196
10995 -> REVOKED BY 11556
10997 -> REVOKED BY 11490
10998 -> REVOKED BY 11490
11000 -> REVOKED BY 11490
11001 -> REVOKED BY 11490
11002 -> REVOKED BY 11490
11003 -> REVOKED BY 11490
11004 -> REVOKED BY 11490
11005 -> REVOKED BY 11490
11310 -> REVOKED BY 11490

The interesting bit is that 11490 was itself revoked by 12656. PEO 12656, "Assignment of emergency preparedness responsibilities", is still on the books.

Of particular note is Sec. 102, which states in part:

(b) This Order does not constitute authority to implement the plans prepared pursuant to this Order. Plans so developed may be executed only in the event that authority for such execution is authorized by law.

As well it should... it's not within the Executive's powers to make law, only to regulate how its agencies carry out the execution of law defined by the Legislature.

Re:Well..

[moyix]

Incorrect. The Elastic Clause (also known as the "neccessary and proper" clause) only allows Congress (NOT the President; that's the executive, not legislative branch) to enact laws that help it execute its other powers defined in the Constitution (Article I, Section 8).

Here's the actual Elastic Clause (Article I, Section 8, Paragraph 18):

[The Congress shall have power] To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

This power is pretty broad; Congress used it to establish (at the urging of the Secretary of the Treasury, Alexander Hamilton) a national bank. Although it was violently opposed by Jefferson and the Republicans as unconstitutional, its legality was upheld by the Supreme Court in 1819 in the case McCulloch v. Maryland under this Elastic Clause.

IANAL, but I am anal about the Constitution. ;)

Re:Well..

[pubudu]

Lincoln's act was declared unconstitutional in 1866, Ex parte Milligan.

Milligan was arrested in 1864 under Congress' 1863 authorization of the President to suspend the writ of habeas corpus, not under the President's earlier declaration. As such, Ex parte Milligan, 71 U.S. 2, deals with the Congressional Act, not with the Presidential declaration.

Congress authorized the President to detain citizens and suspend writs of habeas corpus, but specified that his name be delivered to the court and that, if the grand jury adjourned without indicting him, he should be released. If his name was not furnished to the court within twenty days, he likewise should be released.

Milligan, however, was tried and sentenced to death by a military court. The question before the Supreme Court was whether this military court had jurisdiction to try Milligan (Milligan was a resident of Michigan, which was not in rebellion). Not only had Congress not given the military court such jurisdiction, but the Constitution forbade it.

The Court did not, however, rule that the Act of 1863 suspending the writ of habeas corpus was unconstitutional, nor the President's use of it. Nor did it rule on the President's earlier suspension of the writ by executive order.