By Christopher DunnThis op-ed piece was printed in the October 25, 2001 issue of the New York Law Journal. War places enormous burdens on our governmental institutions, and the judiciary is no exception. Indeed, because the federal Constitution assigns to the judiciary the responsibility for the final determination of the constitutionality of executive and legislative action and because those branches often respond to war with measures that substantially impair the civil liberties of individuals living in our society, times of war can place the courts in the position of having to pass judgment on the most intrusive of restrictions on civil liberties in the most difficult of circumstances. During the First and Second World Wars the Supreme Court of the United States upheld various wartime measures that substantially impaired core civil liberties. These decisions provide an important historical perspective from which to view potential judicial review of measures being discussed in the aftermath of the terrorist attack on the World Trade Center. World War I and the Suppression of Antiwar Expression In 1919 the Supreme Court decided four cases concerning the First Amendment rights of individuals, the press, and political figures to criticize American involvement in World War I. These cases represent perhaps the darkest period in First Amendment jurisprudence, as the Court repeatedly affirmed criminal convictions carrying long prison terms for individuals -- including five-time Presidential candidate and long-time Socialist Party leader Eugene Debs -- who had engaged in conventional political speech directed against the war effort. The initial case was the Court’s seminal decision in Schenck v. United States, which principally involved a First Amendment challenge to convictions obtained under provisions of the Espionage Act of 1917 that made it a crime to obstruct the recruitment and enlistment of individuals for service in the armed forces. The defendants were officials of the Socialist Party who had prepared and distributed 15,000 leaflets, some of which were mailed to men who had been drafted. As described by the Court, the leaflet made a broad political appeal against the war, including a recitation of the 13th Amendment’s prohibition of involuntary servitude. According to the Court, In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity, in the interest of Wall street’s chosen few. . . . It stated reasons for alleging that anyone violated the Constitution when he refused to recognize “your right to assert your opposition to the draft,” and went on: “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’ . . . It denied the power to send our citizens away to foreign shores to shoot up the people of other lands . . . , winding up, “You must do your share to maintain, support, and uphold the rights of the people of this country.” In a unanimous decision by Justice Holmes, the Court asserted “that in many places and in ordinary times the defendants, in saying all that was in the circular, would have been within their constitutional rights.” But these were not ordinary times: “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.” Asserting that the question was whether the leaflets presented a “clear and present danger” to the recruitment efforts of the federal government, the Court held that they did and thus were unprotected by the First Amendment. One week after deciding Schenk the Court, again in unanimous opinions by Justice Holmes, summarily rejected First Amendment claims in two other cases involving general political advocacy like that at issue in Schenk, though the advocacy in those cases was not directed at recruits. For instance, in Frohwerk v. United States, the Court affirmed Espionage Act convictions of two individuals who had published twelve newspaper articles that, according to the Court’s own description, consisted of broad political condemnations of the war. Stating that “so far as the language of the articles goes there is not much to choose between expressions to be found in them and those before us in Schenck v. United States,” the Court rejected the First Amendment claim because on the record before it “it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame, and that the fact was known and relied upon by those who sent the paper out.” There also was the notorious case of Eugene Debs, who was convicted of violating the Espionage Act and sentenced to ten years in federal prison for giving a public speech in Canton, Ohio in June 1918. In that speech Debs broadly condemned capitalism and the war effort, praised socialism, and spoke approvingly of certain individuals who had been imprisoned for their efforts to encourage resistance to the war. In his opinion for the Court affirming the conviction in Debs v. United States, Justice Holmes’ treatment of the claim that Debs’ speech was protected by the First Amendment consisted entirely of the contention that it was “disposed of in Schenck v. United States.” His conviction affirmed, Debs remained imprisoned until 1921, when he was released by order of President Harding; nonetheless, he served as the Socialist Party candidate for President in the election of 1920, in which he received over 900,000 votes. Finally, there is Abrams v. United States, decided eight months later in November 1919, in which the Court affirmed the convictions of five people who had been sentenced to prison for twenty years for distributing anti-war leaflets in New York City in August 1918. Abrams involved provisions added to the Espionage Act in 1918 that criminalized, among other things, “disloyal, scurrilous, and abusive language about the form of government of the United States,” language “intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute,” and language “intended to incite, provoke, and encourage resistance to the United States” in the war. Though these provisions swept far beyond the recruitment-obstruction provisions at issue in Schenck and its progeny, the Court did not even pause in rejecting the defendants’ First Amendment claims: “[T]hat the acts charged against the defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the 1st Amendment to the Constitution of the United States . . . is sufficiently discussed and is definitely negatived in Schenck v. United States and in Frohwerk v. United States.” Ironically, an alarmed Justice Holmes penned an impassioned dissent in Abrams about the importance of protecting freedom of speech, the discussion of which opened with the assertion, “A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success; yet, even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime.” Given Justice Holmes’ own summary disposition of the First Amendment claims in Schenk, Frohwerk, and Debs, however, this plea came too late in the day. World War II and the Restrictions Placed on Americans of Japanese Descent Shortly after the bombing of Pearl Harbor in December 1941, the United States military assumed considerable control over the western part of the United States and implemented measures that targeted persons of Japanese descent, including American citizens born and raised in the United States. These measures resulted in two Supreme Court decisions that endorsed ethnicity-based measures implicating fundamental liberty interests and that arguably represent the Court’s first foray into racial profiling. Contrary to widely-held belief, however, the Court did not sustain the constitutionality of the detention of Japanese-Americans. In March 1942 the military imposed in large areas of the West Coast a nighttime curfew that applied to “all alien Japanese, all alien Germans, all alien Italians and all persons of Japanese ancestry.” It next ordered that persons of Japanese descent could not leave these areas and finally directed that such persons -- “both alien and non-alien” -- be excluded from all parts of the areas except for those parts dubbed as “Assembly Centers,” from which they would be transported to “relocation centers.” The cumulative result of these orders was to require all persons of Japanese descent living in these areas -- including 77,000 American citizens -- to leave their homes and to report to Assembly Centers for subsequent indeterminate detention. On June 21, 1943, the Supreme Court decided Hirabayashi v. United States, in which it sustained the constitutionality of the military curfew order while affirming the criminal conviction of a native-born American citizen of Japanese descent who at the time of his arrest was a senior at the University of Washington. In an opinion joined by all nine members of the Court, Chief Justice Stone asserted that, though “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” engagement in war fundamentally altered application of this principle: “We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing upon the loyalty of populations in the danger areas.” And the Court then deferred entirely to the judgment of the military authorities that ethnicity alone was a sufficient basis for the curfew measure:
We cannot say that [various factual allegations concerning the relationship between ethnicity and loyalty], considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular association with Japan.
Sixteen months later the Court issued its infamous decision in Korematsu v. United States, which involved a challenge to a criminal conviction of a native-born American citizen of Japanese descent, in that case Mr. Fred Korematsu, who was arrested after being found in his home after issuance of the order that all persons of Japanese descent were to report to the Assembly Centers. While Korematsu is widely understood to represent Supreme Court endorsement of the detention of Japanese-Americans, in fact the Court went to extraordinary lengths to avoid that issue, insisting that it was passing only on the order of exclusion, as separate and distinct from the orders that those of Japanese descent report to Assembly Centers and then be transported to detention centers. Having so limited the case, the Court -- in a manner reminiscent of the post-Schenck, cases -- did little beyond cite Hirabayashi for the proposition that it already had decided the constitutional issue in the case. As with Abrams, Korematsu fractured the Court, with Justice Roberts, Murphy, and Jackson issuing strongly-worded dissents. Justice Roberts assailed the Court’s effort to avoid the detention issue, stating that the case was one “of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Justice Murphy charged that the exclusion order “goes over the very brink of constitutional power and falls into the ugly abyss of racism” and warned that “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” And Justice Jackson expressed profound concern about the wartime role of the judiciary: “The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.” The Lessons of the Wartime Decisions Developments of the last fifty years cast considerable doubt on the vitality of these civil-liberties decisions from the First and Second World Wars. The Supreme Court has repudiated use of the Schenck “clear and present danger” standard as a basis for criminalizing advocacy like that at issue in Schenk, Frohwerk, and Debs, and equal-protection doctrine has developed to a point at which government justifications for racial classifications, even when undertaken for remedial purposes, are now subject to extraordinary judicial scrutiny. Nonetheless, the Court has never been called upon to revisit these issues in the context of a major war that presented a genuine physical threat to the continental United States. The “clear and present danger” test still exists in First Amendment law, and Attorney General John Ashcroft on September 25 warned that there was “a clear and present danger” of additional terrorist attacks. In the realm of equal protection, the Supreme Court has never directly repudiated its decisions in Hirabayashi and Korematsu. What does seem to emerge clearly from these decisions, however, is how the pressure of wartime can transform judicial decisionmaking. In all of these cases the Court invoked doctrine that appears solicitous of civil liberties. Nonetheless, in each case that doctrine ultimately yielded to the pressure of the moment. Whether the judiciary has become more immune to such pressure may soon be a matter of great import.