Ex parte Quirin, textualism, and originalism

[Volokh, Eugene]

        I agree with Bryan that pure textualism doesn't justify the Quirin
result -- but the Quirin argument was based on original meaning, not on a
pure-text approach.  "[I]t was not the purpose or effect of [sec.] 2 of
article III [and the Fifth and Sixth Amendments]," the Court reasoned, "to
enlarge the then existing right to a jury trial.  The object was to preserve
unimpaired trial by jury in all those cases in which it had been recognized
by the common law and in all cases of a like nature as they might arise in
the future, but not to bring within the sweep of the guaranty those cases in
which it was then well understood that a jury trial could not be demanded as
of right. . . .  Hence petty offenses triable at common law without a jury
may be tried without a jury in the federal courts . . . .  Trial by jury of
criminal contempts may constitutionally be dispensed with in the federal
courts in those cases in which they could be tried without a jury at common
law.  Similarly, an action for debt to enforce a penalty inflicted by
Congress is not subject to the constitutional restrictions upon criminal
prosecutions.  [Citing various cases for all these propositions].

        "All these are instances of offenses committed against the United
States, for which a penalty is imposed, but they are not deemed to be within
Article III, [sec.] 2 or the provisions of the Fifth and Sixth Amendments
relating to 'crimes' and 'criminal prosecutions.'  In the light of this
long-continued and consistent interpretation we must conclude that [these
provisions] cannot be taken to have extended the right to demand a jury to
trials by military commission, or to have required that offenses against the
law of war not triable by jury at common law be tried only in the civil
courts."

        The Court later cited early statutes punishing alien spies through
court martial, and Revolutionary War, War of 1812, and Civil War  cases to
the same effect.

        Now I have not yet looked through these original sources, and
various others that might be relevant, though I hope to do so within the
next couple of weeks.  Are others on the list acquainted with this?  Did the
Court get the original meaning wrong?  (Of course, I realize that some may
argue that regardless of the original meaning, the text alone must govern,
but I'm tentatively inclined to disagree with that position.)

        Eugene

Bryan Wildenthal writes:

> It seems to me that the textually most economical and logically
> supportable
> approach, and most consistent with preserving constitutional liberties, is
> to treat such "saboteurs" or "terrorists" (at least when caught and tried
> within the US for acts committed within the US) simply as what they are:
> freelance criminals like any other.  Even the most depraved serial killer
> is
> entitled to the full constitutional protections of jury trial and due
> process, so why should "saboteurs" or "terrorists" be subject to a
> military
> drumhead court-martial run by the President as C-in-C?  If such saboteurs
> are *also* agents of some foreign power, that might justify *also*
> treating
> them in various other ways, as enemy aliens to be interned, POW's, or
> whatever, but would *not* justify prosecution and punishment without the
> full panoply of constitutional guarantees.  The earlier posting which
> pointed out the true reason why FDR insisted on a secret military trial of
> the Nazi saboteurs (avoiding embarrassment to the FBI) illustrates the
> importance of not allowing *any* exceptions to the regular procedures.
> Any
> exception will be abused.
>
> An earlier posting also pointed out that the 5th Amendment grand jury
> guarantee is expressly qualified by an exception "in cases arising in the
> land or naval forces, or in the Militia, when in actual service in time of
> war or public danger."  Congress's general power to provide for governance
> of the military (Art I:8:14) was evidently not thought sufficient to carve
> out such an exception.  No such express exception appears in the Art. III
> or
> Amend. VI jury trial guarantees.  This seems a devastating textual
> rebuttal
> to any notion that a person *not* in the US military caught engaging in
> "sabotage" or "terrorism" within domestic US jurisdiction where civilian
> courts are open for business, could be tried by any sort of "military
> commission."  It would even tend to cast doubt on the constitutionality of
> denying full jury trial even to members of the US armed forces in wartime,
> and at the very least suggests that uniformed military are entitled to the
> fundamentals of due process (since again, no such "armed forces/war/public
> danger" exception is stated for the due process clause appearing in the
> very
> same 5th Amendment).  I recognize, of course, that a sufficiently
> well-constituted military court-martial might satisfy at least the
> rudiments
> of due process (if not, I suspect, the full-fledged jury trial guarantee
> and
> all it implies).  I think the US can generally be proud of the quality of
> justice afforded to our uniformed military, even in wartime, but previous
> postings have pointed out the inherent concerns of impartiality and
> independence that affect military tribunals.  There should be an
> *enormous*
> burden of persuasion on anyone who proposes subjecting anyone outside a
> regular uniformed military to any sort of military trial.
>
> The other night on TV I saw a panel of talking heads (including Robert
> Bork!) discussing this very issue.  Unfortunately, I missed most of it,
> but
> heard one panelist solemnly argue that of course, Pres. Bush has "inherent
> power as Commander-in-Chief" (without even Congressional authorization!)
> to
> order such military trials of terrorists.  I felt like throwing things at
> the TV.  How in the world does the President's authority as C-in-C over
> the
> US military authorize him to deny express constitutional guarantees to
> persons *not* in the US military, accused of crimes within the US?  This
> is
> exactly the sort of dangerous nonsense that I had thought the Supreme
> Court
> laid to rest in Ex parte Milligan 135 years ago.  It is a sad day, indeed,
> if we are falling back even from the standard of protection of civil
> liberties set by that mediocre and none-too-liberal-minded Court!
>
> Bryan Wildenthal
> Thomas Jefferson School of Law
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