Why we are here: the Lincoln precedent
mcurtis at LAW.WFU.EDU
Thu Sep 13 18:41:34 PDT 2001
There was substantial criticism of Lincoln approach to civil liberties
by thoughtful Republicans at the time--in so far as it extended beyond
the area of conflict. More troubling than the suspension of the writ in
areas behind the lines--eg Ohio--was the practice Lincoln approved of
trial and punishment of civilians in such areas by military courts. It
is one thing to imprison without trial; it is worse to convict & punish
people for offenses that violate no law after trials that violated
procedures required by the Constitution. Still worse was the use of a
military trial to punish a politician for making a speech attacking the
war policy of the administration as one that sought to free slaves and
enslave whites. Lincoln defended this procedure in public (though in
private he sought to restrain generals--at least after public uproar).
The charge before the court martial was that the defendant made the
speech and the "law" violated was an order issued by a general saying
disloyal sentiments would not be tolerated in Ohio.
The Lincoln example Tom West cites is not one I think we should rely
on--at least if we think the people in a democratic society have a right
during war to discuss the wisdom of the war. On the other hand if we
want a precedent that justifies locking up war critics after trying them
by military commissions (with the jury appointed by the general), this
is a handy precedent indeed.
Tom West wrote:
> On the Korematsu case:
> There is a constitutional provision that was written
> precisely for this sort of occasion, namely, the suspension
> of habeas corpus "in cases of rebellion or invasion [when]
> the public safety may require it."
> American territories such as Guam and Wake Island had
> been invaded and were under continuous occupation by
> Japanese forces from December 1941 on.
> Lincoln used this provision with great effectiveness during
> the rebellion that we call the Civil War.
> Why wasn't the internment of Japanese-Americans justified
> under the same provision? Whatever one may think today
> about the reasonableness of the fear, it is obvious that
> many Americans feared that many people of Japanese
> ancestry would do everything they could to help the
> Japanese forces that were then, in alliance with Hitler,
> attempting to defeat or conquer America.
> I have never understood why the government did not use
> this argument in the Korematsu case.
> Tom West
> Prof of Politics, U of Dallas
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