“Time has proven the discernment of our ancestors… 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.”
America’s strongest precedent incorporating that great English tradition of protecting subjects from the Crown comes in a Civil War-era decision, ex parte Milligan. In it, the Supreme Court forcefully argues for clear limits to the state’s invocations of necessity to justify its attempts to circumvent established legal protections.
I first include much of Justice Davis’s striking opinion:
These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.
Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law.
The history of the world had taught them that what was done in the past might be attempted in the future. 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, as has been happily proved by the result of the great effort to throw off its just authority.
The Supreme Court has struggled mightily with this decision. It struggled with it in ex parte Quirin, when Franklin Roosevelt demanded the Court’s imprimatur for his having forced the execution of an American citizen without fair trial. The Court invoked and struggled with the Milligan precedent again in Korematsu v. United States, when Mr. Roosevelt imprisoned American citizens en masse and without trial.
The Court similarly struggled with Milligan during Bush’s so-called war against terror; at that time, Justice Scalia invoked Milligan and reminded the Court that our fathers drafted, amended, and ratified the Constitution under far more dangerous crises than we have seen in living memory. A disastrous smallpox epidemic predated the ratification by only a few years. Yellow Fever decimated American cities, killing one out of every ten Philadelphians in 1793. Dysentery was nigh unto ineradicable. Pirates, less a scourge than fifty years early, still infested the waters about Tortuga, Nassau, and Port Royal. The early republic faced at all times the twin shadows of rebellion and invasion.
Yet through all that, Americans expected to enjoy the freedoms granted first by custom and then by a written constitution. Scalia insisted that any suspension of the writ of habeas corpus should come through Congress, presumably the body of government most responsible to the people. Indeed, the Constitution provides Congress with the process of suspending the great writ in Section IX of Article I: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
It is not clear to what extent Congress may suspend other constitutional protections, though any effort to do so should proceed analogically from the Suspension Clause; if Congress wishes to strip Americans’ rights in an emergency, it must do so formally, explicitly, and thereby submit itself more immediately to the angry rebuke of the electorate.
An attempt to invoke necessity as a defense for tyranny should respect our common law on the subject, one inherited from centuries of precedent after the Petition of Right. By it, the state may justify its invasions of liberty only by showing such an immediate, present, local threat that the threat closes the courts and deposes the civil administration.
The Supreme Court in Milligan rightly makes much of the local character of such a justification: a hostile army in Bloomington may force the courts to close there, but that does not justify the Governor’s suspending of rights in Evansville or South Bend. By analogy, a plague that affects predominantly one city may not be a real threat to any other in the nation. A city whose courts and civil administration may continue to work without real threat of being overcome should not invoke the plight of another more beleaguered city to justify the former’s suspension of constitutional guarantees.
Luckily enough, Mr. Trump has for the most part restrained the Federal government from assisting the shocking behavior perpetrated by many of America’s mayors and governors, executives who have seized upon the Chinese Flu to indulge their autocratic fantasies.
Mr. Trump proved me wrong when I doubted his ability to win the presidency. He proved me wrong when I doubted his dedication to appointing wise and impartial judges. He happily has proved me wrong once more. I doubted that he could resist the temptation to seize tyrannical power should the opportunity arise. But the credentialed class vocally and constantly offered if not demanded the mantle of imperium in late March and early April; Mr. Trump turned it down.
Quite a bit to my pleasant surprise, our President has shown he has something of a Cincinnatus in him. We must guard the law for the coming of a Caesar.