Figure 1.-- Here are drummers of the 61st New York Infantry, the "Astor Rifles" or "Clinton Guards," recruited primarily in New York City photigraphed at Falmouth, Virginia (March 1863). We find liberal authors cobdeming President Lincoln because pf suspending 'habeas corpus'. This is usually not put in context. Rarely has a democracy, let alone other forms of government, placed so little restrictions on civil liberties during a major war when the country was threatened. Newspapers were not muzzeled and criticiam of the President and war policies were permitted. America conducted two natioanl elections during the Civil War. Notice that Britain and France during World War I and II did not dare hold elections.
One interesting aspect of war is the impact on law and civil libertirs. Democracies are a fairly modern developmet so the impact is nostly om maonarchial regimes. Althoug written history begins with Athens and the Pelopenesian War, it is some time before democracies reappear. The United States was the first important democratic repubnlic in modern times. And it is the only major country to have ciontinued to hold elections during major wars. This inckudes the Civil War which could have easily ended the very existence if the country. And the rwo worlds wars which were largely determined bu America;s ebtry into the War. American democracy has both generated support for anf against war. While elections have never been curtailed, civil liberties have been and resulted in major political debates and court actions. And this debate began almost as soon as the Republic was founded. The Liberal nexus (Hollywood, academnia, and the Mainstream Media) use the various violations of civil liberties, mostly occuring during war as evidence that Ameriva had not been a beacon for feeedom and individual rights. Actually it is just the opposiste that is the case. It is basic human nature to regulkate expression during times of war. All sovieries do. it. The question for students of history is how does Ametica stack up compared to how other countries handle dissent. And here America comoars very well, even during the Civil War when the very exitence of thecReoubkic was at stake. Other important issues in which dssent and free expression are of issue are anti-Semitism and racism.
Wars
Declaring war is a Congressional power. Article One, Section Eight of the Constitution vest the power to declare with Congress. This reflects the 18th century Brirish experiebnce where Parliament became the dominant institurion. And with the colonies, it was lehiskature which somibated. In fact the eseutive was the non elective British govenor. These were the influences which the affected the debates of the Constititional Convention. The resulting Constitution reads. "Congress shall have power to ... declare War." The Constitution provides, however, no specific format for what form legislation must have in order to be considered a "declaration of war" nor does the Constitution itself use this term. And there it is not indivation of the required vote. As a result the standard by default became a simple majority vote. And the President does not mention the President. The president from the beginning, however, as his party leader played a major role in Congewessiinal vires. As American history unfolded, the President has signed declartions of War, but he cannot veto it. Inn the 19th century, the impetus for War came variously from Congress and the President. In the 20th cemtury, it was the president that played the dominant role. The handling of dusent varied widely in the different wars. And here the Constitition is silent. Neither Arycke One or the First Amendement in any way authorize restrictions on debate once war is declared. Nor dies ir specifically state that the Goivermnent cannot restruct debate. Here Tenth Amnendmenbt would seem to apply, ". Its exact language states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And the Constitution does bit guve the Federal Givernment to suoress Constitutional guarantees during times iof war. This has not prevented presidebts and congresses from doing so.
The Quasi War (1796-1800)
The first chammenge and most grebious assult to the First Amendment was during the Adams Administration with the Alien and Sedition Acts. This challkenge vkastede onky b2 years and was a factor in Presidenht Adams' failure to win reeelection. President Gerorge Washington was inagurated the same year that the French Revolution erupted in Europe (1789). The United States has a subdstantial merchant navy. And in the ensuing wars between Britain and France, that merchant fleet was targeted by both powers. This was the impetus for a sharp political divide. The Federalists led by Alexander Hamilton favored the English. The Republicans led by Thomas Jefferson favored the French. President Washington was determined to stay out of the War and to develop a Navy to protect American shipping. Vice-President John Adams was an advocate of naval power. The Republicans fiercely opposed military spending, inclusung the the original six frigates of the United States Navy with the Naval Act (1794) President Washingtom had the prestige to prevent a war with England or France. President Adams with less prestuge than Washingron had more problems. The Jay Treatly had settled issues with the British (1795), but the French contunued to seize American merchantmen giving rise to demands for war. Ptrsident Adams decided to fight the French Navy without decaring war. The result was the Quasi War fought with both naval vessels and privateers (1796-1800). The Repiblivans also opposed actions against the French to whom they were synpathetic desopite affronts like the XYZ Affair (1797-98). The Federalists began to accuse them of disloyalty if not treason. President Adams wrote that the Republicans 'would sink the glory of our country and prostrate her liberties at the feet of France.' The result was Congessional passage of the the Alien and Sedition Acts (1798). They were a series of four laws amid widespread fear that a fill scake war with France was imminent. The Alien Act aitorized the president to deport any non-citizen judged to be dangerous to the peace and safety of the United States. The act provuded a non-citizen no right to a hearing, no right to present evidence and no right to judicial review. The Sedition Act which nuch furthera and applied to citizens. And it basicaklky prohibited any criticism of the government, including the Congress. The critism prohibited was any charge intended to bring them into contempt or disrepute. Of course thiose are very subjective terms. Virtually any criticism could fall under the purview these laws. And there were some proceutions, primrily of the most vocal Republican newspaper editors of the Adams administration. The Reoublicans answered with the Kentucky and Virginia Resolutions. The Sedition Act expired with the end of the on the Adams Administration. The issue petered out when The French lost interest in the war when they began losing mire ships than the Americans. This made possibke areeaty with Fraence which was criricized like the eratlier Jay Treaty with Britain. Adamn's successor, President Jefferson, pardoned all those who had been convicted under the Act. Legal actions on the fines levied would wind thriugh the court sysren for 40 years.
Congress evenbtually repaid all the fines. Many historians believe that the Sedition Act was a crntral factor in the eleciral demise of the Federalist Party. The Supreme Court has consistently reiterated in various decisions that the Sedition Act was unabiogiusly unconstitutional in the court of history. It is arguably the most clearly affront to free speech anbd basic civil liberties in American history. An important footnote to this story is that President Jefferson used Adams's frigates, which he had opposed building, to fight a ditant-water naval war with the Barbary Pirates.
War of 1812 (1812-15)
The impetus for war came from the War Hawks in Congress. President Masison reluctanyly went along because to have opposed it would have meant that he would not have been reelectted. There was a griundswell of support for war orimarily because of British impressment of Americam seamen. Congress decalred war, but made little effirt to prepare fpr war. The Democratic-Republican who rukled still lanired under the misapprehebsion that war could be conducted by poorly traine militias. Congress took no step os to restroct discent which was mostly regional. The War was unpoopular in New Enbgkand which had been a Federalist stronghold. New England was the center of the American maeitimne industry which of course was devestated by the Royal Navy's control of thw sea. This refilted in the Harford Convention (December 1914-January 1815). While secret it became known and the Government made no effirt ti supress it or the individuls involved. There was no real need to do so. Gen. Jackson's spectacular victory at New Orleaans (1815) resulted in a soctaculat eruption of patriotic fervor that would prpel him into the White House (1828).
The Mexican War (1846-48)
The Mexican War is probably the clearest example of a president unilaterally starting a war, although often not mentioned is that Mexico was primed for war as well. Ptrdident Polk (1845-49) was intent on terririorial expanion and was supported by the Democratic Party. The Democratic controlled Congress voted to annex Texas (1845). This ser American and Mexico on a course for war a Mexico also claimed Texas. President Polk essentailly manufactured a border crisis which helped propel the Congressional declaration of war. The President had also already drafted a war declaration for Congress before word of the border skirmish reached Washington (May 1846). Mr. Polk's War was highly controversial. [Merk] The primary issue was slavery. Texas would enter the union as a slave state. The Abolitionist Movement was growing and becoming an important faction in the Whig Party, at least in the North. President Polk's goals were not just Texas, but Manifest Destiny all the way to the Pacific Ocean. This oened up a huge area south of the Mason-Dixon Line fot thr potentoal expansion of slavery--essentially opening up the the Pandora Box that had been defused by the Missouri Comporomise. The northern Whigs complained bitterly. They charged that Polk was not only misleading if not dishonest and was acting unconstitutionally. Slavery was the major, but not the only issue. Anti-war sentiment was expressed in New England much as it had in the War of 1812. Author Henry David Thoreau was sentenced to prison for refusing to pay his taxes. He conplaibed rgat they were financung the War. "Civil Disobedience" continues to be a standard of peaceful resistance to war in modern times.
A young Illinois Congressman, Abraham Lincoln, was disturbed by the ineffectual opposition of the Whig Party which wanted to maintain its standing in the South. It would lead to the founding of the Republican Party (1854). As a result there was a heated debate in the press over the War. The Polk Adminitration made no effort to limit that deabte. But the House of Representatives passed a resolution pronouncing the war “unnecessarily and unconstitutionally begun” because Polk had deliberately induced it (1848). It was factor in Gen. Zachary Taylor's electoral victory (1848). And it unleased a full scale constitutional crosis which the Compromise of 1850 only postponed. .
The Civil War (1861-65)
The Civil War was America's most serious challenge. There were actions taken against free expression, more by the Confederacy than the Federal Gvernment, but Lincoln did take actions, most notably suspending habeus corpis on a limited basis. But through out the War there was a robust debate in the Press. Amd America became the first country to have elections during a great war in which the future of the country was at stake. Americans at the time had ill defined and sharply divided loyalties. Honorable men like Robert E. Lee who served for decades under the American flag, took up arns against the United States. It was the most costly war in American history -- some 600,000 combat fatalities among the two armnies. A wide range of legal issues arose and included bitter opposition to the War within the northern free states. The two most voilitile issues were the draft and Emancipation. President Abraham Lincoln had to balance the conflicting interests of military necessity with individual liberty and was far more huducuous than President Adams sic decades ealier. The most serious step taken by Lincoln was to suspended the writ of habeas corpus. He did this on eight separate occasions. The writ of habeas corpus is a well estanblished principle of English Common Law embraced by the Constitution. It enpoeers a court to determine whether an individual is being unkawfully detained by governmental aithorities. The Constitution allows the writ to be suspended only 'when in cases of rebellion or invasion the public safety' requires it. The most extreme of these suspensions applied throughout the entire United States. Lincoln authorized the military to arrest 'all persons … guilty of any disloyal practice'. This was extensively used by military authorities who arrested and imprisoned some 38,000 civilians. There was no judicial proceedings invisioned and no judicial review of the legality of the arrests. The Presudent's authority was questiin in the courts. The Supreme Court ruled in Ex parte Milligan that Lincoln had exceeded his constitutional authority (1866). The Court ruled that the president could not constitutionally suspend the writ of habeas corpus, even in time of war, if the established civil courts were open and functioning. There were als actuins taken by Fwderal military occupation authorities, The most notorious was General Thomas Ewing's General Order No. 11 (1863). It forced the evacuation of rural areas in four counties of in western Missouri. Another contriversial occupation order was Major-General Ulysses S. Grant's General Order No. 11 during the Vicksburg Campaign ro expel Jews quickly cancelled by President Lincoln (1862).
Spanish American War (1898-99)
The American press describing Spamisg atrocities in Cuba helped generate war fever. The was as too short and sucessful to generate discent. Americans as a result of the war found thmelves possessing ba small colonial emoire--inconsequestion by European standardsm but colonies none the less. The largest was the Philippines Islands which was never mentioned in the rin up to the War. The press coverage was all about Cuba. Williams Jennings Bryan and the Democrats began questioning the idea of empire. It was an issue in the 1900 presidential election. The Phillipines Insurection (1899-1902) in contrast to the Spanish-American War irself was neither heroic or short. And sigificant, justified criticism appeared in the American press, especially in New England. [Freidel] The Government made no effort to restrict dissent. The American colonial experience after the Insurecrion was in many ways exempliary. The Philippines becamne the second Asian country, after Japan, to have a public school system. American secomd thoughts about colonialism was a factor in the American decesion to grant independence to the Filipinos (1934). This was notable because the United States was the first colonial power to offer indeoendence to a colony and other no realmpressure to do so. As it unfoldes, independence was delayed by the Japanese World War II invasion (1941). .
World War I (1914-18)
The issue of civil liberties arose again in World War I. Adter World War I broke out in Eurooe (1914), the Wilson administration did its best to stay out of Wprld War I. This was in line od the attitude of most Americans who had no desire to be involved in an Europoean War. Many historians believe that Wilson won electioin in lkarge oart because he did manage to keep America out of the War During this period thete was a free and open discussiin of the War and Amrrican partcipation.
Congress at Presidebnt Wilson's request decared war (April 1917). Despite German actions during the War and ptobative steps aimed at America, there was no Pearl Harbor. And there sibstantial opposition to both the decalation of war and the draft. There were nany charges such as the idea that the goal of the United States was not to 'make the world safe for democracy'. Others charged with ni real eciudebce that the Wilson Administraion acted to protect the investments of Anerican banks. President Wilson chanpioned many progressive prohects. Civil liberries were not high on his agenda and he had no tolerance for dissent. (This infleabiklity wouikd doom his Treary bafter the War.) In factm the President warned that disloyalty 'must be crushed out' of existence and that disloyalty 'was … not a subject on which there was room for … debate.” Disloyal individuals, he explained rather chillingly 'had sacrificed their right to civil liberties.' The President was not just orating. He gave Attorney General Thomas Watt Gregory the job of rooting out discent. Gregory helped draft the Espionage Act of 1917 which Congress passed sin after decakeibng war. Aggressive Federal prosecutors directed by Gregory as well as compliant judges turnedvthe Espionage Act into a blanket prohibition of any criticisn if the War. The attornet General remarked about dissenters, “May God have mercy on them, for they need expect none from an outraged people and an avenging government." (Novenber 1917) Gregory's Depatmenyt of Justice prosecuted more than 2,000 dissenters for opposing the war or the draft. And tge war time hystriaof fear and patriitic clamor, judges commonly delivered harsh punishment —- frequently 10 to 20 years in prison. The thus durung the War, there was no real punblic debate about the merits, the morality and conduct of the war. The Supreme Court was involved in this proccess. In a series of decisions, the Court consistently upheld the convictions of individuals who had agitated against the war and the draft (1919-20). Socialist Eugene Debs was the most famous, He has received a million votes for president in 1916. But many little known individuals were also involved, like Mollie Steimer, a 20-year-old Russian-Jewish émigré who had thrown anti-war leaflets in Yiddish from a rooftop on the lower East Side of New York. After the Armistice and end of the War (Novenber 1918), the Federal Governmebt began rethinking its actions. The government released all the individuals who had been convicted of seditious expression during the War, includuing Debs (1919-23). President Roosevelt wehn further, a decacde later and granted amnesty to all of these individuals, restoring their full political and civil rights. The Espoomage Act renamined in the book, but over the next half-century, the Supreme Court overruled every one of its World War I decisions, holding that the individuals who had been vomvicted during the War for dissent had been arrested for lawful speech that should have been protected by the First Amendment.
World War II (1941-45)
President Frammlin Roosevelt was the most popular president of the 20th century. He was elected to an unprecendent four terms. The oress at vthe tiume, however, was bit titalky dominated by the Democratic Oarty as is the case today. There were mamy sharp critics, may who had opposed the New Deak during the 1930s or involvenrnbt in World War II. The powerful Isolationist Movemnent sharply vriticused him. Not all of this ctritcism went away with Pearl Harbor (December 1941). One of the President's most severe critics was the Chicago Tribune. Mpst of the press acted resposiblty during the Wae. The Tribune reported, however, a stiry that syggested that victory at Midway resulted from the U.S, Navy crackinbg Jaoanese naval codes. This was a report that ranked as vurtual trason in the middle if a War where Allied victirt was far from assured. This could have caused thousands of lives. Admiral King would have liked to have had the paper's editor hung, drawn, and quartered, and he deserved it. The only reason the editor was not proceuted is that legal action would have drawn attention to the article. Fortunately the Tribune does not seem to have had many Japanese readers. The primary civil liberty issue during the War was not over free speech, it was the internment of Japannese-Americans. Two months after the Japanese attack on Pearl Harbor, President Roosevelt signed Executive Order 9066, which authorized the U.S. Army to 'designate military areas' from which 'any persons may be excluded' (February, 19, 1942). Although the words 'Japanese' or 'Japanese American' never appeared in the order, it was understood to apply only to persons of Japanese ancestry. Some 120,000 individuals of Japanese descent were forced to leave their homes in California, Washington, Oregon and Arizona and report to relocation facilities. Almost all were forced to ababdon or sell theirb property at a fraction of its value. Two-thirds of the propole interned were U.S. citizens, about 90 percent of all Japanese Americans. Ironically the order did not extend to Japanese Americans in Hawaiia. No actual were brought against these individuals. There were no hearings or judicial processes. Theu had no idea where they were going, what was going to happen to them, how long they would be detained, what conditions they would face, or their eventual fate.
Cold War (1946-91)
Some Americans understand the threat to the the United States during World War II, eepecially when the Soviet Union was an Axis ally (1939-41). The threat posed to America and Comminist China during the Cold War is less well understood. It was better understood during the Cold War. This is part of the reason that so many Third World leaders who cane to power during Decolonization turned to the Soviets anf Chinese. They thought the Communists were going to win the Cold War. And there were many Amerivan swhi were afraid of this as well. This is what caused the post-World War II Red Scare in America. The Left likes to point about the excesses of McCartyism wjich were real. What they avoid mentioning was massive Soviet espionage effort and the degree to which the Sovirts had penetrated America security. Actually McCarthy was ruight abouit this, although he had little evidence and his methods were a gross violation of American civil liberrties. It should be pointed how that throughout the McCarthy Era there was a vigorous public debate of the issues and Sentaor McCarthy was sanctioned by the U.S. Senate. And throughout the Cold War there was also a vigirous debate in the media on the issues involved.
Anti-Semitism
Jews in the 18th century with few exceptiomd lived in Ruroope with small numbers in the Middle Easr and North Africa, Akk if these Jews lived in socities in which their lives were severeky restricted by countless laes and regulations as well as centuries of social customs and traditions. The Enligtenment began to change this, but Jews still lived restructed lives with few rights and legal protections. Rhe United States Constitution was ratified (1789). It was aproducr of the Renaisasance. Abd the Crown Jeweles of the Constitition was the Bill of Rights. And the most important of the 10 Amendments was the 1st Anendment--which provided for freedom of religion. Not freedom of Christian denominations, but freedom of religion full stop. No where wlse was their freedom of religion, even in Britain and the Netherlands. Now this is not to say that historic prejudices toward Jews did not exist. It is to say there were no laws which restricted Jewish life and opportunities. For the first 100 years few Jews came to America to enjoy the inprecedented freedom. Most Jews who came were German Jews. Germany as a unified state did not yet exist, but the German states were slowly removing restrictiions. In fact the Germans led the way in enfranchising Jews. Still there were restictions which caused many German Jews to come to America--men like Levi Straus. A Civil War experien illustrates the nature of anti-Semitism. Major-General Ulysses S. Grant issued Genera Order No. 11 (1862) during the Vicksburg. He evicted Jews fromn gus area of ooerations. He was acting on the kind of general attitude toward Jews among Americans who did not even know any Jews. Lincoln immediatekly counteranded the order. And it was something Grant always regretted. It was the only law or regulakation ever directed at American Jews. This changed after the Civil War when Tsar Alexander III launced a rural campaign agaunsr Jews. Large nimbers of Jew began comong to America for the first time, fleeing Tsarist oppression. As a result, it is Russian Jews who begin to dominate American Jewery. (This of coirse means the Tsarist Empire not Russia. Jews lived in the Pale of Settlenent meaning Lithiania, Poland, and the Ukraine.) With all these strange people flowing in from Easrern Europe, anti-Semitism grews. Groups like the No Nothings were arounsed by Chrustian immigrants. Jews were even more different. In the eraky 20th century eith large numbers of Jews now part of the American ethic salad, Jews were discriminated against in various ways, minclidng employment, educarion, social clubs and resort areas, peoperties. Thus was all by private action, not by law. Antisemitism reached its peak during the interwar period along with with actions against Afrivan Amerivans which in the South was backed by force of law. The inter-War era was the paek of anti-Semntism with the rise of the Ku Klux Klan, the anti-Semitic works of the Henry Ford comtrolled Dearborn Independent, and the radio speeches of Father Coughlin spewed out hatefil anti-Semetic rhertoric. But while anti-Semitism existed, unlike Europe and the Muslim statres, it was never backed by the force of law. This was a huge differemce. World War II changed everything. The hateful rhetoric disappeared. At the end of the War the revrlations of the NAZI Holovaust provided horendous images of where anti-Semtism could lead. From that point on anti-Semitism while not disappeating was no longer a major factor in American life. It continues today among righ-wing fanatics and is a factor among anong some African Americans and Muslim immigrants. Jews today are the principal religious group targeted by hate groups.
Law can be a doubled-edged sword. It can be used to both oppress and to seek justice. The arc of Anglo-American legal history has been to protect individual rights and property, elements that are inextricably linked. The most conscipuous failure for an extended period in American juris prudence was race. This was an issue not touch on by English common law at the time of the foundation of the American colonies, but slave laws based on race were adopted in each of the American colonies and were especially important in the South where most Aficans were imported and where the Aboliionist Movement made little progress after the foundation of the United States (1776). Even during the skave era, there wre some legal victories for Africans, nost notably the decesion in the Constitution to abolish the slave trade (1809) and the Amistad trial (1839-40). The overwealming legal novement in the North was toward freedom and in the South toward strenthening slavery. This division led to the Fugative Save Law (1850) and perhaps the worst decision in Suprme Court history --the Dread Scott decsion (1857). Ultiately the savery issue proved beyond the capacity of law and politics to reslove. Thus only the Civil War.aterrible national bloodletting, resolved the issue. And ultimately three amendmets to the Constitution resolvd the issue. Most black Americams who at the time lived in the south were unable to fully realize the benefits of emancipation because of the Black Codes passed by Southern Lehisatures establishing the Jim Crow system. This was confirmed by the Supreme Court in Plessy vs. Fergusson establishing the separate but equal doctrine (1898). This did not change until the Supreme Court struck down racial segregation in the Brown vs. Topeka decision (1954). The 14th and 15th amendments were used to undo the Jim Crow system of the South. Congression passage of two civil rights (1964-65) furthered that process. The American jury system was a further impediment to racial justice, at least unil racial minorities achieved the right to vote in the South and thus began to appear in the jury pool. This led to miscarrrriages of justice such as the Scottsboro boys and George Stinney here (figure 1).
For over twp centuries American political discourse has been conducted through a freem if not always honest media. This was made possible by the 2st Amendment--the Crown Jewel of American Democracy. Over this time the psitions of all sides of the political spectrum were expressed. There were press outlets supporting all the major political factions as well as newspaoers which presented both sides of the various issues. Thid was not perfect of course, but was the freest expression of political thought anywhere in the world. The only principal exception to two centuries of free expression in the United States was supression of any criticism of slavery in the slave states until the Civil War. The enormous sucess of the United States is in no small part do to the ability to identify problems and adopt policies to correct them made made possibke by free and open discourse. This began to change in the late 20th century as the media, academia, and the press began to be dominated, but allost entirely controlled by men and women with liberal out looks. Fir several decaded this meant that in all these critical areas overwealingly expressed liberal ideas. Now the situation is changing. More and more Americans, especially young Americans and major social media platforms began blocking the expression of conservative ideas. Ar first they denied doing this, bit now they are blanrtenly doing and going to the extent of labeling conservative idea as racist ot other negative apelages. They have even begun allacking material oisted by the President of the United States. People kike Facebook's MNarck Zuckrerherg denied it was happening. Now his emoloyees complain he is not doing it enough. The sane is happening at Google . Amazingly, Google enployees have no troubke doing business with the Communist Party and helping them supress free expression and civil liberties in China. But they do not want to do business with the United States Defense Department and police forces throughout America. This is all undeniable and can be easily measured with the number of factual matters that are banned because they do not comport with the standard liberal narrative being promoted by the media.
Source
Freidel, Frank, "Dissent in the Sopanish-American War and the Philippine Insurrection," Proceedings of the Massachusetts Historical Society Third Series, Vol. 81 (1969), pp. 167-84
Merk, Frederick. "Dissent in the Mexican War," Proceedings of the Massachusetts Historical Society Third Series, Vol. 81 (1969), pp. 120-36 .
