Civil Liberties in Wartime

Abstract

Civil Liberties in Wartime GEOFFREY R. STONE* I have a simple thesis: In time of war—or, more precisely, in time of national crisis—we respond too harshly in our restriction of civil liberties, and then later regret our behavior. To explore this thesis, I will briefly review our experience in 1798, the Civil War, World War I, World War II, the Cold War and the Vietnam War. I will then offer some observations. The “Half War” with France The period from 1789 to 1801 was a critical era in American history. In an atmosphere of fear, suspicion and intrigue, the new Consti­ tution was put to a test of its very survival. Sharp internal conflicts buffeted the new na­ tion, which also found itself embroiled in a fierce international struggle between Europe’s two great powers, the French Republic and Im­ perial Britain. It was a time ofbitter party war­ fare and rampant hysteria.1 By 1798, many of the ideas generated by the French Revolution had aroused deep fear and hostilityin some segments oftheAmerican population. A rancorous political and philo­ sophical debate raged between the Federalists, then in power, and the Republicans. The Fed­ eralists feared that the sympathy ofthe Repub­ licans for the French Revolution indicated a willingness to plunge the United States into a similarperiod ofviolent upheaval. The Repub­ licans feared that the Federalist sympathy for England denoted a desire to restore aristocratic forms and class distinctions in America. As the war in Europe raged and the United States found it increasingly difficult to maintain a perilous neutrality, President John Adams sent John Marshall to Paris to nego­ tiate a treaty to guarantee the immunity of American shipping from attacks by French corsairs. When this effort failed because the French demanded “tribute” to help finance their war with England, Americans were out­ raged atthe arrogance ofthe French. A wave of patriotic fervor swept the nation under the ral­ lying cry “Millions for Defense, but Not One Cent for Tribute.” President Adams placed the United States into a“virtual state ofundeclared war.”2 Congress gave the President everything he asked for and more. It ordered additional war­ ships, appropriated substantial funds to fortify harbors, established a new Department of the Navy, expanded the army by adding twelve new regiments ofinfantry, authorized the navy 216 JOURNAL OF SUPREME COURT HISTORY This 1798 cartoon shows France as a monster, with one foot in Switzerland, saying to Britain “We will come and plant the tree of liberty in your hearts and make your nation free.” The Federalists entered into an undeclared war with France over its demand for tribute money to guarantee immunity from attacks by French ships, but the Republicans believed that America should stay out of the Anglo-French conflict. to attack armed French ships, and abrogated all treaties with France. George Washington was recalled from Mount Vernon to assume command ofAmerica’s military forces. Adams was suddenly a national hero. Whenever he ap­ peared in public, he was greeted with huzzas. The nation was on a war footing. The Republicans fiercely criticized these measures. Vice President Thomas Jefferson feared that a war with France would drive the United States into the arms of England and deliver the nation over to the forces of anti-republicanism and monarchy. He be­ lieved that if the United States could main­ tain its distance from the European conflict, the French might defeat the English and thus make republicanism secure once and for all in America.3 Republican Congressman Albert Gallatin protested that the Federalists had ex­ aggerated the dangers facing the nation and that the measures they proposed would precip­ itate an unnecessary and disastrous war with France. He derided as “wild” the Federalist claim that France intended to “subjugate our country.”4 Congressman Brent added that he was no more apprehensive of a French inva­ sion than he was of being “transported before night into the moon.”5 The Federalists were aghast. Congress­ man Robert Goodloe Harper warned that the nation had to prepare immediately rather than waiting until invasion was imminent, and Con­ gressman “Long John” Allen of Connecticut warned of“bloodshed, slaughter, pillage, and a complete subjection to...