Wartime: Links are at the end
The Constitution at Home in Wartime
Personal Liberty.--''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.''1545
Ex parte Milligan, from which these words are quoted, is justly deemed one of the great cases undergirding civil liberty in this country in times of war or other great crisis, holding that except in areas in which armed hostilities have made enforcement of civil law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words were uttered after the cessation of hostilities, and the Justices themselves recognized that with the end of the shooting there arose the greater likelihood that constitutional rights could be and would be observed and that the Court would require the observance.1546 This pattern recurs with each critical period.
That the power of Congress to punish seditious utterances in wartime is limited by the First Amendment was assumed by the Court in a series of cases,1547 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1548 The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States.1549 Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ''When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.''1550 By far, the most dramatic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of these persons by a curfew order,1551 even by a regulation excluding them from defined areas,1552 but that a citizen of Japanese ances try whose loyalty was conceded could not be detained in a relocation camp.1553
A mixed pattern emerges from an examination of the Cold War period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld1554 and then in a series of cases was practically vitiated.1555 Against a contention that Congress' war powers had been utilized to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.1556 It voided a law making it illegal for any member of a ''communist-action organization'' to work in a defense facility.1557 The majority reasoned that the law overbroadly required a person to choose between his First Amendment-protected right of association and his right to hold a job, without attempting to distinguish between those persons who constituted a threat and those who did not.1558
On the other hand, in New York Times Co. v. United States,1559 a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different majority concurred in denying the Government's request for an injunction in that case.1560
Enemy Aliens.--The Alien Enemy Act of 1798 authorized the President to deport any alien or to license him to reside within the United States at any place to be designated by the President.1561 Though critical of the measure, many persons conceded its con stitutionality on the theory that Congress' power to declare war carried with it the power to treat the citizens of a foreign power against which war has been declared as enemies entitled to summary justice.1562 A similar statute was enacted during World War I1563 and was held valid in Ludecke v. Watkins.1564
During World War II, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within this Country.1565 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals.
Eminent Domain.--An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.1566 In United States v. Russell,1567 decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,1568 also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. ''In such cases,'' the Court said, ''it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.''1569
Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.1570 In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.1571 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.1572
Rent and Price Controls.--Even at a time when the Court was utilizing substantive due process to void economic regulations, it generally sustained such regulations in wartime. Thus, shortly following the end of World War I, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants to continue in occupancy provided they paid rent and observed other stipulated conditions.1573 Justice Holmes for the majority conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations1574 but noted that ''a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation.''1575
During World War II and thereafter, economic controls were uniformly sustained.1576 An apartment house owner who complained that he was not allowed a ''fair return'' on the property was dismissed with the observation that ''a nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control . . . which will assure each landlord a 'fair return' on his property.''1577 The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.1578
But in another World War I case, the Court struck down a statute which penalized the making of ''any unjust or unreasonable rate or charge in handling . . . any necessaries''1579 as repugnant to the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it.1580
http://caselaw.lp.findlaw.com/data/constitution/article01/41.html#t1548http://caselaw.lp.findlaw.com/data/constitution/article01/
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