It’s not often that a Supreme Court Chief Justice writes a book of history. But when he does, it’s a book worth reading.
This is true for William H. Rehnquist’s All the Laws but One: Civil Liberties in Wartime. He uses an experienced jurist’s eye to discuss how the federal government handled civil liberties in the Civil War, World War I, and World War II. He also gives legal insights in terms that laymen can understand.
In treating the Civil War, Rehnquist begins with Lincoln’s suspension of habeas corpus. In one of the first test cases, Chief Justice Roger Taney rebuked Lincoln, telling him that it was unconstitutional for Lincoln to suspend the writ of habeas corpus. Lincoln, of course, ignored Taney.
Rehnquist discusses the number of civil liberties violations under Secretary of State William H. Seward and then Secretary of War Edwin Stanton. There was a huge increase of civilians imprisoned under the secretary of war.
Stanton decided that civilians could be tried before military commissions, that is, courts-martial for civilians. These arrests and trials took place while the civil court system — state and federal – were operating throughout the North.
Rehnquist also discusses General Ambrose Burnside’s arrest of former Congressman Clement C. Vallandigham, and the treason trials of Democrat Lambdin P. Milligan and others in Indianapolis. The Civil War section ends with Ex parte Milligan, in which the Supreme Court rebuked Lincoln, deciding that the Bill of Rights is still in force during wartime.
The author compares government conduct during the Civil War, World War I, and World War II. The biggest difference, he explains, was as follows:
The Lincoln administration relied on presidential authority or on the orders of military commanders to curtail civil liberties, while in the 20th-Century wars, the executive branch resorted much more to laws passed by Congress.
I highly recommend this thoughtful book.