Fifteen years ago, the Chief Justice of the Georgia Supreme Court spoke on liberty and security in a time of war at a joint meeting of the Covington Rotary and Kiwanis clubs. Some two months prior to that, terrorists had launched attacks inside the borders of the United States killing thousands of Americans and destroying property valued in the billions of dollars. What would become known as 9-11 had occurred and the United States was at war — a war that continues today.
Typically, in a time of war, concerns about securing individual liberty while protecting the national security move to the forefront. It was with that thought in mind that I called Georgia Court of Appeals Chief Justice Ed Johnson and asked if he would speak to a joint meeting of Rotary and Kiwanis. Regrettably, he said he had another commitment for that date but would help me find a speaker. In just a few minutes he gave me the telephone number of Norman Fletcher, Chief Justice of the Georgia Supreme Court, and told me the Justice was waiting for my call.
Justice Fletcher was receptive to the idea of visiting Newton County and agreed to be the keynote speaker. During our conversation he mentioned that I should find a copy of a book entitled “All the Laws but One” written by United States Supreme Court Chief Justice William Rehnquist. He said the book addressed the issue of civil liberty during times of war. Specifically, the book examined the administrations of Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt and how each president dealt with the issue of individual liberty and national security.
The title of Justice Rehnquist’s book is derived from a speech by President Lincoln before the Congress of the United States in which he asked if the concern about individual liberty should allow “all the laws, but one, to go unexecuted, and the government itself go to pieces lest that one be violated.” Lincoln was referring to the Constitutional requirement that “The Privilege of Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Lincoln had ordered the arrest of a member of the Maryland legislature for actions against the United States Government and had further ordered that the man’s right to appear before a judge be suspended. Countering Lincoln’s move was an order by United States Supreme Court Chief Justice Roger B. Taney that the prisoner be produced for a hearing.
The Constitution did not specifically give the president the authority to suspend the Writ of Habeas Corpus and Taney was of the opinion that only Congress had that authority. (Congress late gave the President such authority but with limits). Lincoln ignored the order but it undoubtedly prompted his reference to the need to enforce all the laws.
Justice Rehnquist’s book reviews events of the Civil War, World War I and World War II that gave rise to the question of when civil liberties must be restricted in the interest of national security. During WW I many of the restrictions involved the suppression of speech. The United States Post Office even refused to deliver publications that the Postmaster General ruled to be against the nation’s interest. The Supreme Court was sometimes divided but generally ruled in favor of the restrictions. Two justices often dissented and they were Louis D. Brandeis and Oliver Wendell Holmes. Today those two are recognized as outstanding defenders of individual liberty.
Time and again, history has shown that wartime leads to restraints on individual liberty and many of the restraints are done without the concurrence of Congress or the Courts. This situation was best described by Attorney General Francis Biddle when he said, in referring to actions taken by President Franklin Roosevelt, “Nor do I think that the Constitution difficulty plagued him. The Constitution has not greatly bothered any wartime President. That was a question of law, which ultimately the Supreme Court must decide. And meanwhile — probably a long meanwhile — we must get on with the war.”
Historically, the President of the United States has wielded awesome wartime powers to suspend liberties, including internment and detention. Not since the Civil War have traditional wartime battles been fought inside the borders of the United States. One can only hope that if any President ever believes it necessary to suspend the civil liberties of any citizen, such action will be tempered by the words of Edmund Burke, member of the British Parliament during the American Revolution, “lawyers may tell me what I can do, but humanity, reason and justice tell me what I ought to do.”
This is part of a series of columns on government by Jerry Roseberry. Roseberry is Mayor of Oxford and Vice Chairman of the Northeast Georgia Regional Commission Council. He can be reached at JRoseberry@oxfordgeorgia.org.
