Another question related to emergencies and constitutions

Fri Sep 9 08:25:24 PDT 2005

 I would also welcome a more thorough empirical look ... but I do think that
this sort of empirical study needs to consider that supreme court doctrine
has a broader ripple effect than simply serving as direct, lineal, legal
precedent (case A controls case B). Supreme Court opinions frame political
debates in Congress, in campaigns and in the public arena (no shouting fire
in theaters ... money is speech ... etc).

In the case of Ex Parte Milligan, the notion that "the Constitution of the
United States ia 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" may not have controlled a great number
of cases, but I am willing to speculate that it has influenced not only how
(at least some) judges think about cases, but also how legislators and and
educated public does as well. 

Part of the empirical problem is in deciding what constitutes influence. Ex
parte Milligan may not have been the shield that stopped the government cold
in its tracks, but it may well have served to make bad situations a little
bit less so -- by which I mean that it may have reigned in opinions that
were, say, a 9 on a oppression scale of 10, down to a 7 or a 6. But how to
prove that empirically? Well, do-able, but not easy.

Milligan certainly has been cited -- probably more often in dissent, but
quite frequently in important cases ranging from Youngstown Sheet & Tube, to
Reid v. Covert; from Baker v. Carr to Duncan v. Louisiana, Rasul v. Bush
(concurring opinion). And in important dissents in Hamdi, Rostker v.
Goldberg, Massachusetts v. Laird, Duncan v. Kahanamoku (and Ex parte Endo).
Of course the next question would be, did these references, not to mention
the degree to which this language injected itself into the political debates
on the floor of congress or elsewhere, have any sort of braking effect? 

I confess I don't have the answer to that one -- but it strikes me as a
crucial question to ask in uncovering a full understanding of the role and
impact of precedent.

- Gordon Silverstein

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Friday, September 09, 2005 7:17 AM
To: Gordon Silverstein; CONLAWPROF at lists.ucla.edu
Subject: RE: Another question related to emergencies and constitutions

I would be interested in knowing how often Ex Parte Milligan has in fact
served to defend defendants' rights during times of war.  The US Supreme
Court certainly didn't seem to pay it much heed last year in Hamdi, for
example.  It is probably true that we're better off with Milligan on the
books than not, but it is still unclear to me (probably because I haven't
done the research--has anybody?) on the actual impact of Milligan.

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gordon Silverstein
Sent: Thursday, September 08, 2005 11:31 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Another question related to emergencies and constitutions

I agree with Sandy (and even Sutherland) about the constitution in times of
a 'pinch' ... but I want to note that post-hoc 'harrumphing' does, I think,
make an important difference. And hence my reference to Ex Parte Milligan.

Where the Constitution has not been developed (the question of suspending
the right to bear arms for some, not all, in Louisiana in the wake of a
hurricane ... or the suspension of habeus by the President alone in the
civil war, even when civil courts were functioning ... the question becomes
-- how is the court to deal with this question of a novel challenge to the
constitution?

Being silent allows the COurt to return later and set down the proper
markers (precedents, arguments) which the NEXT time will make a difference.
Mr. Milligan didn't have Ex Parte Milligan to refer to ... but the NEXT Mr.
Milligan will, and does. And the next time, a President won't be able to
claim constitutional silence or Supreme Court lacunae.

The choice is not simply a choice of the Court doing the right thing (even
if it pinches) or being silent. The real choice in periods of PERCEIVED
emergency (real or imagined) tends to be this: Silence ... or constitutional
rationalization for abuse of power and therefore constitutional
rationalization for the expansion of emergency powers.

When that happens, the next Mr. Milligan is probably going to be in more
jeopardy than the first.This is how I understood Justice Jackson. 

- Gordon Silverstein

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Thursday, September 08, 2005 7:58 PM
To: Gordon Silverstein; CONLAWPROF at lists.ucla.edu
Subject: RE: Another question related to emergencies and constitutions

 There is, of course, much to what Gordon Silberstein suggests.  Perhaps it
is needless to say, but I will say anyway, that the most systematic theorist
of the "state of exception" that he is really defending is Carl Schmitt.
Interestingly enough, Gordon's de facto suspension takes the form of the
courts doing "nothing" rather than overtly defending the suspension of
constitutional rights.  But judicial harrumphing after a crisis has passed
is something of a fig-leaf (though I suspect it is better than the
alternative of not harrumphing at all).  But as Justice Sutherland wrote in
his Blaisdell dissent, if we don't accept the proposition that a
constitution is to be followed even when it "pinches"
as well as when it gives comfort, then we have gone a long way toward
abandoning constitutionalism.  This is not to say, incidentally, that I
agree with Justice Sutherland on the merits; there are indeed times when the
Constitution should be, in effect suspended.  The question is how candid we
want to be about this.

sandy  

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gordon Silverstein
Sent: Thursday, September 08, 2005 5:56 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Another question related to emergencies and constitutions

What should the courts do?

This may be an excellent time for them to do nothing. 

I have in mind something along the lines of Ex Parte Milligan. In the midst
of crisis is a really terrible time to set precedents. The correct answer,
constitutionally, is to enforce the constitution. But it is almost
impossible to imagine a Lousiana judge doing that here and now.
The worst thing would be for that same judge to find a way to rationalize
this exercise of extra-constitutional power.

Like Milligan, there will be time after the crisis has passed to deliver the
proper constitutional ruling, one that will NOT attempt to rationalize the
suspension of constitutional provisions -- this time it's about guns, but
could just as easily be about speech, press or internment camps.

As Justice Jackson argued in Korematsu: "a judicial construction ...
that will sustain this order is a far more subtle blow to liberty than the
promulgation of the order itself. A military order, however
unconstitutional, is not apt to last longer than the military emergency.
...
But once a judicial opinion rationalizes such an order .. the Court for all
time has validated the principle"

What principle? That somehow necessity justifies the formal, sanctioned
suspension of the constitution.

When the crisis is passed, Louisiana would be wise to have a full debate on
the insanity of their gun laws. But that debate comes later. And should
Louisiana decide to stand by their constitutional provision, then one would
hope the Louisiana courts would follow Justice Davis' lead (in
Milligan) and (AFTER the crisis) remind us that "No doctrine, involving more
pernicioius consequences, was ever invented by the wit of man than that any
of its provisionss can be suspended during any of the great exigencies of
government."

The point is not that such things won't happen, or can't happen. They will.
Survival tends to swamp constitutional theory. But they do NOT need to have
the sanction of a tortured constitutional rationalization which then "lies
about like a loaded weapon ready for the hand of any authority that can
bring forward a plausible claim of an urgent need."
(Jackson again, in Korematsu).

This time, it's a question about guns. But it could just as easily be about
other draconian and awful government policies on speech, press or individual
liberty. Precedents matter.

- Gordon

***************************************

Gordon Silverstein
Assistant Professor
Department of Political Science
210 Barrows Hall
The University of California
Berkeley, CA  94720

ph: 510-642-4683
fx: 510-642-9515

email: gsilver at berkeley.edu

***************************************

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, September 08, 2005 2:39 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Another question related to emergencies and constitutions

	1)  The New York Times,
http://www.nytimes.com/2005/09/08/national/nationalspecial/08cnd-storm.h
tml?ei=5094&en=efe0a58b7fc8e12c&hp=&ex=1126238400&partner=homepage&pagew
anted=print, reports that

Waters were receding across this flood-beaten city today as police officers
began confiscating weapons, including legally registered firearms, from
civilians in preparation for a mass forced evacuation of the residents still
living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or
other firearms, said P. Edwin Compass, the superintendent of police.
"Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards
whom businesses and some wealthy individuals have hired to protect their
property. The guards, who are civilians working for private security firms
like Blackwater, are openly carrying M-16's and other assault rifles. Mr.
Compass said he was aware of the private guards, but that the police had no
plans to make them give up their weapons.

	2)  The Louisiana Constitution, art. I, sec. 11 (enacted 1974),
provides that

The right of each citizen to keep and bear arms shall not be abridged, but
this provision shall not prevent the passage of laws to prohibit the
carrying of weapons concealed on the person.

	Any thoughts on what government officials and courts ought to do in
this sort of situation?

	Eugene
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