Another question related to emergencies and constitutions

Fri Sep 9 10:03:53 PDT 2005

Wasn't at least the short term impact of Milligan  -- the majority opinion 
relying on the constitution rather than the concurring opinion relying on 
the act of Congress -- not to persuade and thereby dissuade Congress, but 
instead to inflame it, contributing to the passage of the act involved in 
McCardle?

Ed Hartnett
Seton Hall 

"Sanford Levinson" <SLevinson at law.utexas.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
09/09/2005 10:17 AM

To
"Gordon Silverstein" <gsilver at berkeley.edu>, <CONLAWPROF at lists.ucla.edu>
cc

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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