June 5, 1762 – Birth of Bushrod Washington, Associate Justice of the U.S. Supreme Court

Bushrod Washington, born on this day in history, was the son of John Augustine Washington, who was George Washington’s brother.

Bushrod Washington graduated from the College of William & Mary in 1778 and along with John Marshall studied law under George Wythe. (Wythe also taught and was a mentor to Thomas Jefferson, Henry Clay and other men who became American leaders.)

Bushrod Washington, engraving, 1891,  Library of Congress

Bushrod Washington, engraving, 1891,
Library of Congress

Washington practiced law from 1784 to 1798, also serving in the Virginia House of Delegates. On September 29, 1798, President John Adams appointed Washington to the seat on the U.S. Supreme Court vacated by James Wilson after John Marshall had declined the appointment. Washington was confirmed by the United States Senate on December 20, 1798, and became an associate justice on February 4, 1799, at the age of 36, continuing until his death in 1829.

Serving for thirty-one years, the Federalist Washington tended to support the opinions of Chief Justice John Marshall and Justice Joseph Story. Washington favored increasing the powers of the federal government, protecting private property rights and encouraging economic development. He voted so consistently with the great Chief Justice that they were considered conjoined “as a single judge.” He only voted against Marshall on three occasions. 

Bushrod Washington

Bushrod Washington


 
As George Washington’s favorite nephew, Bushrod inherited Mount Vernon after Martha Washington’s death, and became executor of his uncle’s estate, including President Washington’s public and private papers. 

When Bushrod and his wife moved to Mount Vernon, he brought his slaves, but even so was unable to support the upkeep of the plantation’s mansion on the proceeds from the property and his Supreme Court salary. He sold many of his slaves to gain working capital to support the main house and property. (Somewhat in keeping with the tendency of early Americans to say one thing and do another, Washington was among the founders of the American Colonization Society (ACS), which promoted repatriation to Africa of blacks.)

Bushrod died in Philadelphia, Pennsylvania, on November 26, 1829, while riding circuit. His wife died two days later while transporting his body for burial. They were both interred at Mount Vernon.

May 17, 1954 – Brown v. Board of Education & The Wrangling Behind the Decision: Review of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” by Noah Feldman

Felix Frankfurter Professor of Law at Harvard, Noah Feldman, has given us a thoroughly researched, well-written, solid analysis of the inner workings of the U.S. Supreme Court from the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the “Scorpions” of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very Jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court-packing scheme; how testimony by Robert H. Jackson, a Roosevelt confidant and future Supreme Court appointee (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.”

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Published by Grand Central Publishing, 2011

April 25, 1910 – Charles Evans Hughes Nominated to the Supreme Court

Charles Evans Hughes, Sr. (1862 – 1948) was an American statesman, lawyer, and Republican politician from New York. He served as Governor of New York, Associate Justice of the Supreme Court of the United States, United States Secretary of State, a judge on the Court of International Justice, and the 11th Chief Justice of the United States (1930–1941).

Hughes graduated third in his class from Brown University at the age of 19, having been elected to Phi Beta Kappa in his junior year. He entered Columbia Law School in 1882, where he graduated in 1884 with highest honors. While studying law, he taught at Delaware Academy. He is said to have had a photographic memory and a great intellect.

Charles Evans Hughes, 1908

Charles Evans Hughes, 1908

Early in his career, Hughes lectured at Cornell Law School, New York University Law School, and served as a special assistant to the U.S. Attorney General. Hughes was the Governor of New York from 1907 to 1910, defeating William Randolph Hearst in the 1906 election to gain the position.

In 1908, Hughes was offered the vice-presidential nomination by William Howard Taft, but he declined it to run again for Governor.

As the Governor, Hughes produced important reform legislation, helping to counter political corruption, extending the state’s regulatory authority, and expanding governmental police and welfare functions.

Gubernatorial portrait of Charles Evans Hughes

Gubernatorial portrait of Charles Evans Hughes

On this day in history, April 25, 1910, President William H. Taft nominated Hughes for Associate Justice of the Supreme Court to fill the vacancy left by the death of Justice David J. Brewer. The Senate confirmed the nomination on May 2, 1910, and Hughes served as associate justice of the Supreme Court from 1910 to 1916.

In 1916, Hughes resigned form the Court to accept the Republican nomination as its presidential candidate, to run against incumbent Woodrow Wilson.

After Hughes was defeated by Wilson, he returned to the practice of law. In 1921, he was appointed Secretary of State by President Warren G. Harding.

After leaving the State Department, he again rejoined his old partners at the Hughes law firm, and became one of the nation’s most sought-after advocates. From 1925 to 1930, for example, Hughes argued over 50 times before the U.S. Supreme Court. From 1926 to 1930, Hughes also served as a member of the Permanent Court of Arbitration and as a judge of the Permanent Court of International Justice in The Hague, Netherlands from 1928 to 1930.

Herbert Hoover, who had appointed Hughes’s son as Solicitor General in 1929, appointed Hughes Chief Justice of the United States on February 3, 1930. Hughes was confirmed by the United States Senate on February 13, 1930, and served in this capacity until 1941. Hughes replaced former President William Howard Taft, a fellow Republican who had also lost a presidential election to Woodrow Wilson (in 1912) and who, in 1910, had appointed Hughes to his first tenure on the Supreme Court.

Portrait of Hughes as Chief Justice.

Portrait of Hughes as Chief Justice.

Upon his return to the Supreme Court, Hughes took progressive stances, upholding legislation protecting civil rights and civil liberties, and writing the opinion for the Court in Near v. Minnesota (283 U.S. 697, 1931), a landmark decision that recognized the freedom of the press by rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence.

Hughes was a centrist, who, however, was often aligned with the court’s three liberal Justices — Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo — in finding some New Deal measures constitutional.

But President Franklin Roosevelt was growing increasingly unhappy with the Court, which struck down some of his efforts to push through several New Deal measures intended to bolster economic recovery during the Great Depression. He avoided a confrontation in the election year of 1936. After he won that election, however, he proceeded to introduce, on February 5, 1937 his so-called “Court packing” plan. In essence, he sought to counter the opposition to his programs by expanding the number of justices, in order to create a pro-New Deal majority on the bench. His Judiciary Reorganization Bill of 1937 would have granted the President power to appoint an additional justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.

McClure's Magazine

McClure’s Magazine

The plan came under heavy attack, with Hughes working behind the scenes to help defeat it by rushing important New Deal legislation through the court and ensuring that the court’s majority would uphold their constitutionality. Perhaps the most important such case was West Coast Hotel v. Parrish (300 U.S. 379, 1937), in which a divided Court, with Hughes writing for the 5-4 majority, upheld the constitutionality of Washington state’s minimum wage law, and by implication, much more of the New Deal.

FDR’s court-packing legislation was presented to Congress on February 5, 1937. The West Coast Hotel ruling came several weeks after the legislation was presented to Congress, with Associate Justice Owen Roberts joining the more liberal wing of the bench. Justice Roberts had previously ruled against most New Deal legislation. Thus his switch here was widely seen by contemporaries as an effort to maintain the Court’s judicial independence by eliminating Roosevelt’s rationale for judicial reorganization. His move came to be known as “the switch in time that saved nine,” but Hughes and Roberts both later claimed that the Chief Justice had already convinced Roberts to change his method of voting months before Roosevelt announced his court-packing plan.

Ultimately, Roosevelt’s proposed court packing plan failed. The entire episode created a public relations nightmare for Roosevelt and also sapped his influence over Congress.

Los Angeles Times

Los Angeles Times

Hughes wrote 199 majority opinions during his time as Chief Justice, from 1930 to 1941. He died on August 27, 1948, at the age of 86.

April 19, 1984 – District Court Reverses Conviction of Korematsu

When the Japanese bombed Pearl Harbor on December 7, 1941, fear and prejudice towards the Japanese reached a fever pitch. These attitudes extended to both citizens and non-citizens of Japanese descent living in the United States.

At the time, approximately 120,000 people of Japanese descent lived on the West Coast, and about 70,000 of these were American citizens. There was never at that time, however, nor thereafter, any proven case of espionage or sabotage on the part of Japanese or Japanese-Americans in the United States.

Nonetheless, in February 1942, General John DeWitt, the commanding officer of the Western Defense Command, recommended that “Japanese and other subversive persons” be evacuated from the Pacific Coast. He claimed:

The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan in a war against the nation of their parents.”

Children at the Weill public school in San Francisco pledge allegiance to the American flag in April 1942, prior to the internment of Japanese Americans.

Children at the Weill public school in San Francisco pledge allegiance to the American flag in April 1942, prior to the internment of Japanese Americans.

He also said that there was “no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation when the final test of loyalty comes.”

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President Franklin D. Roosevelt (known himself for not having enlightened attitudes about the Japanese) acted on this recommendation by signing Executive Order 9066. This authorized the Secretary of War or any designated commander, at their sole discretion, to limit and even prohibit some people from being in areas that were deemed critical to national defense and potentially vulnerable to espionage. The ensuing restrictions on people of Japanese origin included forced removal to assembly and relocation centers much farther inland. Ten relocation camps scattered across the West were built to accommodate the Japanese that included the group of 70,000 American citizens.

Map of forced internment camp locations — used for the internment of Japanese American citizens during World War II.

Map of forced internment camp locations — used for the internment of Japanese American citizens during World War II.

Soon after the order was enacted, Congress sanctioned the executive order by passing a law that imposed penalties for those who violated the restrictions pursuant to the order.

Fred Korematsu was an American-born citizen of Japanese descent who grew up in Oakland, California. When Japanese internment began in California, Korematsu evaded the order and moved to a nearby town so he could remain near his (non-Japanese) girlfriend. He was later arrested and convicted of violating Exclusion Order No. 34 issued by General DeWitt, which barred all persons of Japanese descent from the “military area” of San Leandro, California. There was no question at the time of conviction that Korematsu had been loyal to the United States and he was not a threat to the war effort.

Fred Korematsu

Fred Korematsu

Korematsu challenged his conviction but the federal appeals court ruled in favor of the United States, and Korematsu’s appeal brought the issue before the U.S. Supreme Court in Korematsu v. United States (323 U.S. 214, 1944).

On December 18, 1944 the Supreme Court decided the case, with a 6-3 majority on the Court upholding Korematsu’s conviction.

Justice Hugo Black, writing for the majority, sided with the government and held that the need to protect against espionage outweighed Korematsu’s rights. He stated that “we cannot reject as unfounded the judgment of the military authorities.” Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”

Justice Hugo Black

Justice Hugo Black

Justice Robert Jackson dissented, expressing his view that the military ruling had no place in law under the Constitution. Korematsu’s only crime, he wrote, was “merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” Nevertheless, he opined that “The military reasonableness of these orders can only be determined by military superiors. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task.”

apanese-Americans in California being sent to internment camps in 1942.

Justice Owen Roberts disagreed, writing “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.” He also objected that a relocation center “was a euphemism for prison,” and that the internment of the Japanese was based upon “the disinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices.”

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Justice Frank Murphy agreed with Roberts in his dissent, finding that “this exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”

In 1984, Korematsu challenged the earlier decision through a writ of coram nobis in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). (A writ of coram nobis is the name of a legal order allowing a court to reopen and correct its judgment upon discovery of a substantial error not appearing in the records of the original judgement’s proceedings which, if known at the time of judgment, would have prevented the judgment from being pronounced.)

In this later case, Korematsu provided evidence establishing that the Justice Department had suppressed information from governmental sources that contradicted the Army’s assertion that the Japanese American community represented a national defense risk. The District Court granted his writ and overturned Korematsu’s original conviction. However, the District Court emphasized that in issuing this decision, it had the power to correct only errors of fact, not errors of law. The essential holding of the 1944 Korematsu decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched.

The U.S. Government officially apologized for the internment in the 1980s and paid reparations totaling $1.2 billion, as well as an additional $400 million in benefits signed into law by George H. W. Bush in 1992. In January of 1998, President Bill Clinton named Fred Korematsu a recipient of the Presidential Medal of Freedom.

korematsuclinton

Korematsu has never been officially overturned, and as Dean M. Hashimoto in “The Legacy of Korematsu v. United States: A Dangerous Narrative Retold” notes: “Popular wisdom has it that Korematsu has silently passed away as legal precedent.” But in fact, as he points out, “The Korematsu case has been applied in a traditional manner under stare decisis, primarily from the 1940s through the 1960s, in cases involving postwar regulation, immigration law, and national security law.” From the 1980’s onward, however, as he shows, treatment of the case changed:

Justices assign negative persuasive weight to the result reached in Korematsu. This approach recognizes that Korematsu is now publicly perceived to have been decided incorrectly. By placing Korematsu in its historical context, the Court therefore is able to use it in a way substantially different from ordinary stare decisis.”

As he observes, “The Court’s reliance on evolving interpretive methodologies has mirrored changing public sentiments about the Japanese internment.”

March 13, 1925 – Idaho Legislature Passes an Act to Facilitate Involuntary Sterilization

Eugenics is a form of selective breeding by which society, not nature, determines who is fit to reproduce. Following the promulgation of Darwin’s theories of evolution, eugenic principles became widely popular. As a result, many countries adopted eugenic policies meant to improve the genetic “stock” of their countries.

eugenics_tree_logo2

As one scholar explained:

Applied eugenics deals with a conscious effort for improving the human race by such methods, as immigration regulation, birth control, restrictive marriage legislation, and human sterilization legislation.” (J. H. Landman, The Human Sterilization Movement, 24 Am. Inst. Crim. L. & Criminology 400, 1933-1934)

Dr. David Pfeiffer reported that in 1907, Indiana enacted the first involuntary sterilization law in the country. By 1911 four more states had enacted involuntary sterilization laws. By 1930 a total of thirty three states had enacted such laws although in three states – New Jersey in 1913, New York in 1918, and Indiana in 1921 – the laws were struck down as unconstitutional. In Michigan a law was enacted, but struck down in 1918.

In 1919, Idaho passed the state’s first compulsory sterilization bill targeting the “feeble-minded, insane, epileptic, moral degenerates and sexual perverts” who were inmates of public institutions. [Note that “sexual perverts” included homosexuals.] The governor vetoed the bill, even while lauding the bill as “meritorious,” on the grounds that it did not apply to all such persons, but only those already confined in public institutions “the persons in fact who by reason of such confinement are the least menace to society.”

The Northern Idaho Sanitarium built in 1905 at Orofino, Idaho with a capacity of 250 beds.

The Northern Idaho Sanitarium built in 1905 at Orofino, Idaho with a capacity of 250 beds.

Thus, on this day in history, the Idaho Legislature passed another act “. . . to create a state board of eugenics; to provide for the sterilization of all feebleminded, insane, epileptics, habitual criminals, moral degenerates and sexual perverts who are a menace to society, and providing the means for ascertaining who are such persons.”

This new legislation was specifically constructed to avoid challenges made on the basis of unequal application. It created a Eugenics Board which was composed of the superintendents of the state institutions in charge of the care and housing of people with mental disorders with the responsibility of making decisions about whether residents of the state institutions should be sterilized. Such decisions were to be based on whether the residents were at risk of either reproducing children with certain undesirable traits (e.g., epilepsy, insanity, feeblemindedness), whether they were a menace to society, or whether they might become or were a burden to the state (Gen. Laws of the State of Idaho, ch. 194, No. 203, 359).

Although this legislation required consent from either the patient or their legal guardian, if consent was not given, then sterilization could still go occur provided that the board’s decision was affirmed by the district court. Tellingly, the legislation also stipulated that neither the board nor the physicians performing the sterilizations could be held legally responsible for their participation in operations.

According to Elyce Zenoff Ferster (Eliminating the Unfit–Is Sterilization the Answer?, Ohio State Law Journal: Volume 27, Issue 4, 1966), over 63,000 persons were involuntarily sterilized in the United States for genetically related reasons from 1921 to 1964.

In total, there were 38 victims in Idaho.  Of the 38, eight were male and 30 were female. About 32% were deemed mentally ill and about 66% “mentally deficient,” with 1 of the 38 victims classified as “other.”

In 1931 the Idaho upheld the 1929 law in State v. Troutman (50 Idaho 673) citing the Supreme Court case of Buck v. Bell, 274 U.S. 200 (1927), asserting that “if there by any natural right for natively mental defectives to begat children, that right must give way to the police power of the state in protecting the common welfare, so far as it can be protected, against this hereditary type of feeble mindedness.”

Photograph of Supreme Court Justice Oliver Wendell Holmes. Courtesy of the Library of Congress.

Photograph of Supreme Court Justice Oliver Wendell Holmes. Courtesy of the Library of Congress.

The Idaho law on compulsory sterilization was repealed in 1972.

Coercive and involuntary sterilization has now been recognized as a crime against humanity and condemned by a variety of international organizations.

March 10, 1863 – The Supreme Court Decides Prize Cases as Reported by “Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War” by Mark E. Neely Jr.

The subtitle of this book on Lincoln, “Constitutional Conflict in the American Civil War,” is much more descriptive of its content than the main title. Only the first third of the book deals with Lincoln’s actions, and even then, much of the constitutional analysis applies to the writings of Lincoln’s contemporaries like Horace Binney, William Whiting, and Sidney George Fisher. In any event, the book’s focus is on the constitutional issues faced by not only the North, but also the issues faced by the Confederate States under their own constitution. It gives considerable coverage to the major constitutional issue adjudicated by the Supreme Court during the Civil War, i.e., Prize Cases, as explained below.

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The first important question faced by both the North and the South was whether the Southern states could constitutionally withdraw from the Union. Unfortunately, the Constitution itself had nothing to say on the matter. By contrast, even the “feeble” Articles of Confederation had claimed the Union was perpetual. In his inaugural address, Lincoln skirted the constitutional issue, and relied instead on a legal argument: if the Union was merely a contractual arrangement among the states, the South could not unilaterally rescind that contract by secession—it required the assent of the other parties to the contract. Lincoln also contended that the nation antedated the Constitution:

Having never been states, either in substance or in name, outside of the Union, whence this magical omnipotence of “state rights,” asserting a claim of power to lawfully destroy the Union itself?…The states have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the states, and, in fact, it created them as states.”

This claim had the advantage of adopting the Declaration of Independence, with its expression that all men were created equal, as a founding document. Famously, Lincoln solidified this vision at Gettysburg, declaring that the nation was created “four score and seven years ago” (the time of the Declaration of Independence) rather than “three score and sixteen years ago” (the time of the adoption of the Constitution).

Lincoln’s construction was not without precedent. In fact, the first Supreme Court Justice, James Wilson, wrote in Chisholm v. Georgia (2 US 419, 465, 1793):

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution will be satisfied that the people of the United states intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive and judicial, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government?”

Lincoln also was savvy enough to be aware of the cultural negotiation of both history and memory, and that he could use his facility with words to reframe both of them.

Lincoln deliberately avoided subjecting the question of secession to any court rulings. Instead, the constitutionality of secession was to be decided in presidential speeches, spirited newspaper editorials, widely read pamphlets, and on the battlefield.

1861 tribute to commander of Union forces Gen. Winfield Scott, shown as the mythical Hercules slaying the many-headed dragon or hydra, here symbolizing the secession of the Confederate states.

1861 tribute to commander of Union forces Gen. Winfield Scott, shown as the mythical Hercules slaying the many-headed dragon or hydra, here symbolizing the secession of the Confederate states.

Lincoln did not trust the Supreme Court at that time. The Court was led by Chief Justice Roger B. Taney, the architect of the infamous Dred Scott decision, about which Lincoln had bruited powerful critiques. Lincoln wanted to avoid giving Taney the opportunity to turn the Court’s authority against him, because the constitutionality of other important issues loomed as well, such as the suspension of the writ of habeas corpus, the power to emancipate the slaves, and the power of the federal government to conscript members of the state militias. Taney had expended significant thought on some of these issues, and Neely says he was “itching to weigh in” on them. He never had the chance, however, because none of them ever reached the Supreme Court during the war.

Chief Justice Roger B. Taney

Chief Justice Roger B. Taney

During the Civil War, the writ of habeas corpus was used to attempt to free two groups of prisoners: (1) “political prisoners,” those jailed for inciting desertion by troops or otherwise “hurting the [Union] army” and (2) underage soldiers who changed their minds about serving in the army. Article I, section 9, clause 2 of the Constitution stated: “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 does not, however, say who or which branch of government (e.g. Congress, the President, Courts) is authorized to do the suspending. Lincoln simply arrogated the power. In the process, he ignored the opinion of Chief Justice Taney in the Ex parte Merryman case, in which Taney opined that only Congress, not the President, could suspend the writ. [Note that Merryman was not an opinion of the full Supreme Court; rather it was simply a writ issued by Taney pursuant to the Court’s original jurisdiction in habeas corpus cases for federal prisoners.] Lincoln’s decision to ignore Taney’s opinion was never tested in court. It became moot at the end of the war.

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Lincoln believed emancipation of the slaves was important for the war effort. However, the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. Arguably, the war powers clause authorized the president to commandeer the property of the nation’s opponents, but that right was thought to be limited to actions necessary for victory or the safety of the soldiers. Lincoln could not prove that emancipation was necessary—only that it was useful. Nonetheless, the Proclamation was issued as soon as Lincoln thought it was politically feasible, and it was never challenged in court.

Interestingly, Lincoln feared that the racism of his own troops might render the Proclamation a disadvantage to the Union cause. In the event, the nationalism of the troops trumped (temporarily, at least) whatever racism was prevalent, and the Proclamation did not sow significant dissension in the ranks.

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The Union’s power to confiscate Confederate ships pursuant to its blockade was the constitutional issue that was ruled upon by the Supreme Court during the war. Prize Cases of 1863 (67 U.S. (2 Black) 635) questioned whether Lincoln acted within his presidential power when he ordered the blockade of Southern ports in April of 1861, authorizing the seizure of vessels from which revenues could not be collected on account of the “insurrection.” The owners of merchant vessels affected by the blockade sued for the restoration of their property on the ground that blockades were only legal in wartime, but no war had been declared by Congress, as mandated by the Constitution. Lincoln himself refused to recognize the conflict as a “war” (with its implication of two sovereign nations in dispute) rather than a “rebellion” or “insurrection.” In a 5-4 decision, the Court held that the hecatomb taking place could not be ignored. It was just too massive. War may not have been formally declared, but the Court claimed to know a war when it saw one. In the words of Justice Robert C. Grier, “As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know.”

Justice Robert Cooper Grier

Justice Robert Cooper Grier

Neely calls this decision “the most important Supreme Court decision of the Civil War.” Not only did the Court opine that the war could not be ignored as a fact, but it also disagreed on whether a civil war had to be publicly declared by Congress. James M. Carlisle, representing the ship-owners, insisted that “a war was something declared by Congress, period.” He averred:

The matter then comes back necessarily to the pure question of the power of the President under the Constitution. And this is, perhaps, the most extraordinary part of the argument for the United States. It is founded upon a figure of speech, which is repugnant to the genius of republican institutions, and above all, to our written Constitution.”

Richard Henry Dana, Jr., for the government, countered with the winning argument that war was “a state of things” and “not an act of legislative will.”

It’s a fascinating case, and still is relevant today. [For example, does the current threat by terrorists trigger the president’s war powers?]

The Democrats also mounted an attack on the government’s war measures in state courts, where they expected a friendlier reaction than in federal courts. Their effort was unsuccessful, according to Neely, because the war ended before the cases could be resolved. He states, “[T]he nation was saved from violent confrontation with willful judges by the slowness with which the wheels of justice turned in the middle of the nineteenth century.”

More than 30% of the book is devoted to the issues faced by the Confederate states under their constitution. The Confederacy was formed by a process nearly identical to the process that formed the original United States. Each rebellious state held a “constitutional convention” that was outside of and in addition to its established state government. Neely asserts that the elections for the secession conventions were especially clean by the standard of the time, with a distinct absence of fraud or strong-arm tactics. The movement to secede, in Neely’s words, was “profoundly democratic.” [It might be suggested that because of the near unanimity of the sentiments of those attending the conventions, there was no need for fraud. However, fraud returned to southern elections in full flower after the war ended, especially with the prospect of freed black men and other republicans gaining political office.]

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Although the Confederate constitution borrowed heavily from the federal constitution, each seceding state retained more autonomy under it than it had under the federal constitution—no surprise there. The government that resulted was not highly authoritarian, as one might expect from one led by slaveholders. Rather, it was very democratic in the sense the modern Israeli government is democratic: its constitution speaks of giving all its adult citizens equal rights [the Confederacy limited those rights to males], yet it blithely ignores the presence of a large minority who live within its jurisdiction, but who are accorded few if any rights.

The secession conventions produced constitutional crises of their own. Both the formerly legitimate state governments and the secession conventions continued to act, each ostensibly the sovereign power. Thus, every southern state had two separate governments claiming ultimate authority. Nevertheless, with the exception of South Carolina, the states resolved the problem pretty much without rancor and never with violence. Neely writes,

…some states simply enjoyed the fruits of the emergency actions of the conventions, including the democratization of war by ensuring that the men who fought for the slaveholding republic…could vote in [military] camp….Had the Confederacy prevailed…it would doubtless celebrate that period of government by secession conventions as the United States does today the 1787 Philadelphia constitutional convention.”

Neely raises interesting questions in comparing the Confederate and federal constitutions. For example, why did the Confederacy chose to emulate the federal form so closely? (The President even had a “white house” of his own.) He also notes that Jefferson Davis, like Lincoln, suspended the writ of habeas corpus, and even (near the end of the war) – out of desperation – considered arming at least some of the slaves.

White House of the Confederacy in Richmond

White House of the Confederacy in Richmond

Part of Davis’s problem was that the central government of the Confederacy was not as strong or centralized as that of the Union. Although there were Confederate national courts, there was no Supreme Court. The founders of the Confederacy were always troubled by their need to accommodate state rights with an expanded federal authority necessary to fight a war. Southern governors jealously guarded their state militias, and did not necessarily want them subject to conscription into the national army. The issue of conscription was tested in several state courts. Some lower courts found conscription illegal, but all the state supreme courts upheld its legality on appeal. Curiously, the Confederate national courts seem never to have organized a reporting system; thus their national courts never could exert their proper influence on state decisions.

Confederate President Jefferson Davis

Confederate President Jefferson Davis

Neely observes that the Confederacy faced issues remarkably similar to those faced by the United States in the War of 1812. There, the New England states opposed the use by the federal government of New England militias to launch an invasion of Canada.

He concludes by exhorting his fellow historians to begin a “series of titles, beginning with ‘Constitutional Problems under Madison’ and stretching through all of our wars until we have accumulated a shelf of volumes that reconsider the role of the Constitution in America’s wars.”

Evaluation: In only 349 pages, this book contains some very meaty legal analysis. Moreover, even though there is a paucity of case law during the relevant time period, the book also contains some very thoughtful constitutional analysis of issues faced by both the Union and the Confederacy. Interestingly, much of the contemporary analysis came from newspaper editorials and impressively trenchant political pamphlets. Neely’s scholarly prose is readable despite the density of his subject matter, and he avoids sounding too lawyerly. I highly recommend this book for anyone with a serious interest in our constitutional history.

Rating: 4/5

Note: The author won the 1992 Pulitzer Prize for his book The Fate of Liberty: Abraham Lincoln and Civil Liberties. This book was awarded the Lincoln Group of New York Award of Achievement for 2011.

Published by The University of North Carolina Press, 2011

January 22, 1973 – The Supreme Court Decides Roe v. Wade

On January 22, 1973, Roe v. Wade (410 U.S. 113) was decided by the U.S. Supreme Court.

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribed abortions except on medical advice for the purpose of saving the mother’s life. In Roe, the Court found:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”

Justice Harry Blackmun (a Nixon nominee), writing for the majority, explained:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Justice Harry Blackmun

Justice Harry Blackmun

Justice Blackmun’s explanation was necessary because the Constitution does not in fact explicitly mention any right of privacy. Thus Justice Blackmun pointed out that he was relying on “a line of decisions … going back perhaps as far as … 1891 [in which] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution” [Citations omitted].

How could the Court invalidate a statute that did not limit any right enumerated in the Constitution? First the Court made a point of disavowing the doctrine of “substantive due process” expressed in Lochner v. New York, 198 U.S. 45, 76 (1905). (Substantive due process was a theory under which the Court held some statutes unconstitutional on the basis of the substance of legislation, thereby superimposing its judgment over that of the legislature. This doctrine was widely criticized as “countermajoritarian,” and was rejected in principle in most cases after the 1930’s.)

Because Blackmun rejected substantive due process, he had to overturn the Texas statute on other constitutional grounds. He listed a series of cases that found the roots of the right to privacy in the First Amendment, the Fourth and Fifth Amendments, “the penumbras of the Bill of Rights, the Ninth Amendment, and the first section of the Fourteenth Amendment.”

What are these “penumbras,” and how far do they extend beyond the rights specifically enumerated in the Constitution? The concept was first articulated by Justice William Douglas (a Roosevelt nominee) in Griswold v. Connecticut (381 U.S. 479, 1965), a seminal precedent that paved the way for Roe.

Justice William O. Douglas

Justice William O. Douglas

In Griswold, appellants filed suit after they were fined for giving “information, instruction, and medical advice to married persons as to the means of preventing conception” in violation of a Connecticut statute.

The Court seemed predisposed to find the statute unconstitutional, but struggled for a rationale. None of the rights specifically delineated in the Constitution had been infringed, and, as indicated above, the Court had long ago vitiated the principle of “substantive due process,” under which it invalidated laws solely on their “wisdom, need, and propriety.” Nevertheless, Justice Douglas found that some rights not specifically listed in the Constitution and in the Bill of Rights were created by implication.

The Court contended that the express guarantees of the Bill of Rights were not meaningful unless those rights had “penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” In other words, it can be rather difficult pursuing “life, liberty and property” without a little privacy, especially when it comes to regulating ones’ own sex life and family-planning strategy.

Although in Griswold, Douglas recognized a “right of privacy,” his ruling was limited to the right to use contraceptives or advise on their use. Furthermore, his language provided very little guidance on the boundaries or extent of the penumbras.

However, his rationale could be used to expand the right indefinitely, at least to the extent that any other statute “operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”

In seeking therefore to find a constitutional reason to declare the Texas abortion restrictions unconstitutional, Roe goes beyond the specific limited language of Griswold, yet applies the rationale of Griswold. Specifically, the Court holds that the penumbras of various specific Constitutional guarantees also include another right, namely the right to abortion in the first trimester.

The appellants in Roe used another line of attack besides the right to privacy implied by the penumbras referenced in Griswold. They also appealed to the rights reserved under the Ninth Amendment, which provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Note that this language provides absolutely no guidance whatsoever to what those rights might be. Justice Blackmun may have been reluctant to base the Roe decision on the Ninth Amendment for this reason. Moreover, he wanted to make access to abortion subject to some regulation in later months as the fetus becomes more viable.

The Roe Court perforce had to find that the word “person” in the Fourteenth Amendment does not apply to the unborn, at least not in the first trimester. (The Fourteenth Amendment protects the guarantees of the first ten amendments from infringement by the States.)

These issues were not resolved definitively. Because Justices Douglas and Blackmun relied on the very indefinite language of penumbras, zones, and emanations, the door was left open for different factions to contest the decision. The questions of what other aspects of life are protected under the right of privacy, what constitutes a “marriage,” and when a fetus becomes a “person” are still unresolved.