All the Laws But One: Civil Liberties in Wartime

All the Laws But One: Civil Liberties in Wartime

by William H. Rehnquist
In 1861, with the survival of the United States in jeopardy, Abraham Lincoln—the Great Emancipator and champion of human freedom—responded to the national threat by suspending the writ of habeas corpus, a traditional bulwark of individual liberty. Lincoln's decision reveals in stark terms a conflict inherent in the practice of American democracy, and


In 1861, with the survival of the United States in jeopardy, Abraham Lincoln—the Great Emancipator and champion of human freedom—responded to the national threat by suspending the writ of habeas corpus, a traditional bulwark of individual liberty. Lincoln's decision reveals in stark terms a conflict inherent in the practice of American democracy, and in this absorbing new study the Chief Justice of the United States examines the inevitable clash between the demands of a successful war effort and the compelling need to protect civil liberties.

Taking his title from Lincoln's speech before Congress defending his suspention of the writ, William H. Rehnquist relates in vivid detail how the exigencies of wartime have strained, threatened, and ultimately confirmed our most cherished civil liberties. The decisions made by a wartime government are unlike those made in times of peace, and here the Chief Justice guides the reader through the various wartime policies—and the legal decisions that followed—that tested the civil liberties we traditionally enjoy: the Lincoln administration's prosecution of civilians before military tribunals (as well as of the alleged conspirators in the Lincoln assassination); the criminalization in World War I of speech inciting resistance to the draft; the forcible relocation of Japanese-Americans in World War II; and the imposition for nearly three years of martial law in Hawaii.

Each of these instances illustrates the Roman dictum Inter arma silent leges, "In time of war the laws are silent"; but as Rehnquist argues, that silence alternates with voices raised in defense of civil liberties. Written withcharacteristic grace and authority, All the Laws but One is a fascinating blend of historical narrative and legal analysis, a major contribution to our understanding of the great American experiment.

Editorial Reviews

Publishers Weekly - Publisher's Weekly
In this lively account, Chief Justice Rehnquist tests the Roman maxim inter arma silent leges (in time of war the laws are silent) against American history and discusses the judiciary's response to government's wartime lawlessness. He begins with the Civil War, when the Lincoln administration "chose to suspend the writ of habeas corpus, interfere with freedom of speech and of the press, and try suspected political criminals before military commissions." Lincoln's defense of these practices gave the book its title, "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" The tension between individual liberties and wartime necessities runs throughout the work as Rehnquist discusses several celebrated Civil War habeas corpus cases (Ex Parte Merryman and Ex Parte Milligan); political dissent during WWI; the internment of Japanese-Americans; and Hawaii's military government during WWII. Rehnquist reaches the considered conclusion that "the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order--in favor of the government's ability to deal with conditions that threaten the national well-being." Nevertheless, since the Civil War, courts have tamed the government's power to restrict civil liberties in wartime. Rehnquist is a diligent scholar and a compelling storyteller, who guides his readers to a consideration of abstract moral and legal issues in the light of specific historical circumstances.
Library Journal
The Chief Justice of the Supreme Court considers what happens to our vaunted freedoms in times of war.
Jeremy Waldron
...[Takes] us through the variety of cases, from the 1860s to the 1940s, in which civil liberty issues in time of war have arisen....Rhenquist presents full and fascinating human profiles of the major participants in these cases...and a level of detail about the hearings and the decisions that provides...some understanding of what it must have been like to grapple with these issues in a time of crisis. -- The New York Times Book Review
Andrew C. McCarthy
What is the proper balance between...preserving civil liberties and protecting national security?....Today, foreign armed adversaries are tried by our civilian courts and given full legal privileges....[A] central lesson of...the book: when it comes to civil liberties in wartime, the pendulum swings back and forth. Soemtimes it swings too far in both directions. -- Commentary
Kirkus Reviews
An enjoyable historical presentation with a frustratingly judicious conclusion. From the chief justice of the U.S. Supreme Court you anticipate authoritative, decisive, even momentous opinions. In this volume, however, Rehnquist conducts a walk through the park rather than a grilling before the bar. To consider the status of civil liberties during national emergencies, he explores the suspension of habeas corpus during the Civil War and its aftermath, the suppression of civil liberties under the Espionage Act during WWI, and the internment of Japanese-Americans during WWII. The historical presentation is descriptive and conventional, yet pleasant, as Rehnquist focuses on legal actions attendant to the temporary restrictions of individual rights. There is much more information on the Civil War and Lincoln's assassination than necessary, and a more detailed examination of the relevant cases, informed by analysis along the way, might have better served his ends. Nevertheless, the exposition is well crafted and by late in the volume the reader is ready for the payoff: Rehnquist's conclusions regarding the clash of individual rights and national security. Unfortunately, the brief concluding chapter is more illustrative of how a cautious jurist approaches an inherently problematic question than of any principle that might provide an answer. The issue is clearly identified—achieving a proper balance between freedom and order—without defining "proper" beyond suggesting that the balance shifts "to some degree" toward order when national well-being is at stake. Rehnquist does eschew an absolute standing for civil liberties, if the circumstances absolutely require their suspension,and he apparently prefers to avoid suggesting general criteria that would inject content into this abstract stand. One imagines that if Rehnquist were asked how he likes his steak, he would reply with an insightful history of man's experience as a carnivore along with an injunction that meat must be cooked but not overdone. The chief justice raises an important question without resolving anything.

Product Details

Knopf Doubleday Publishing Group
Publication date:
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6.70(w) x 9.57(h) x 1.43(d)

Read an Excerpt

There was reason to credit these rumors. Out of about ninety thousand votes cast in Maryland, Lincoln had received some twenty-two hundred, and Douglas, the other candidate to do well in the North, slightly less than six thousand. The great majority had gone either to Breckenridge or to Bell. Not surprisingly, in view of the sentiments expressed by this vote, Lincoln had received no invitations to speak or to be welcomed in Baltimore. And the logistics of train travel through that city seemed made to order for some sort of disturbance or riot. Passengers coming in from the North bound for Washington had to change stations, and each railroad car was separately drawn by horses between the two depots.

Lincoln pondered the matter for a day, completed his activities in Philadelphia and Harrisburg, and then agreed to go surreptitiously from Harrisburg to Philadelphia, and thence to Washington. On February 22--Washington's Birthday--he was called from a dinner in Harrisburg, changed into a traveling suit, and quietly boarded a carriage to the railroad depot. He was accompanied only by Ward Lamon, an Illinois lawyer who had come with him from Springfield. When the special train--consisting of one locomotive and one passenger car--got to Philadelphia, they met Pinkerton, and the three of them boarded the last car of the New York-Washington train. Lincoln went to his berth and closed the curtains. The train reached Baltimore in the middle of the night, unnoticed by anyone, and at six o'clock on the morning of February 23, Lincoln arrived at the railroad station in Washington. He was wearing a soft, slouched hat, a muffler, and a short bob-tailed overcoat. He was met by IllinoisCongressman Elihu Washburne and escorted to Willard's Hotel, the city's premier hostelry.

As Lincoln and William Seward sat at breakfast at Willard's that morning, they presented, in more ways than one, a marked contrast. Lincoln was remarkably tall--six feet four inches--and gangly: physical features that cartoonists were quick to note. Seward, while slender, was shorter than average and somewhat stooped. His hair was white, and his most prominent feature was a large nose, compared by some to the beak of a parrot. He was eight years older than Lincoln.

Until the 1860 Republican Convention unexpectedly nominated Lincoln for President, Seward had been the acknowledged leader of the party. He had begun his long career in elected public office in New York as a member of the Anti-Masonic Party, then, in 1838, was elected the first Whig governor of that state. He served two terms as the state's chief magistrate, returned for a few years to a successful private practice of law in Auburn, and was then elected to the Senate as a Whig in 1849, and reelected in 1855. The Republican Party had only come into existence in 1854, when it was founded by groups in Wisconsin and Michigan as an expression of outrage against Congress's enactment of the Kansas-Nebraska Act. That law repealed the Missouri Compromise of 1820, which forbade slavery in certain parts of United States territories. During his second term in the Senate, Seward allied himself with the Republican Party.

Lincoln's offer of the State Department to Seward had been made through Seward's longtime political ally Thurlow Weed, a well-known Albany newspaper editor, lobbyist, and political fixer of sorts. Seward had accepted, but he was not happy. He had still not gotten over his disappointment at losing the nomination in Chicago, and was further disappointed that Lincoln was seeking to make his Cabinet a "ministry of all the talents." He was including almost as many former Democrats as former Whigs. Seward would have much preferred to have only men of his own stripe chosen, and on the eve of Lincoln's inauguration he would threaten to withdraw his acceptance of the post of Secretary of State. Lincoln responded with a curt note insisting that he remain, saying to his personal secretary, John Hay, "I cannot let Seward take the first trick."

Seward was a warm, companionable person, devoted to drinking brandy after dinner and swapping stories. He was so fond of smoking cigars--which he did constantly--that his speaking voice had become husky. Lincoln would enjoy a camaraderie with him during the war years that he achieved with no other member of his Cabinet. For all his craftiness and occasional deviousness, Seward had none of the pomposity that infected Salmon P. Chase, another prominent Republican, whom Lincoln would appoint Secretary of the Treasury. He had none of the aura of corruption that surrounded Simon Cameron, whom Lincoln would designate Secretary of War. Seward had allowed Thurlow Weed to work with him in managing his political career, but he did not profit materially from the activities of his crony.

Throughout his life, Seward had manifested a sympathy for the underdog. In private practice in Auburn, he had defended a black man charged with murder on the grounds that the defendant was insane, attracting much opprobrium in the community for this position. He had been of counsel in the famous Van Zandt case, in which an Ohio farmer had been charged with violating the Fugitive Slave Act by helping slaves on their way to Canada. As Governor of New York, he had signed a law abolishing imprisonment for debt.

Seward had carried his opposition to slavery onto the floor of the United States Senate. He had opposed the Compromise of 1850, declaring in a speech that there was a "higher law than the Constitution," though he later unsuccessfully attempted to "clarify" what he meant by this phrase. At another time he had spoken of an "irrepressible conflict" between the slave states and the free states. As the election of 1860 grew near, however, he had trimmed his sails, referring to the northern states as "labor" states and to the southern as "capital" states. Between the time of Lincoln's election and his arrival in Washington. Seward had taken both public and private steps to conciliate the newly seceded states, often without any express approval from the President-elect.

"Governor" Seward, as he was usually called, was a complex personality. He was gentlemanly, subtle, and smiling, but not quite elegant or effete; there was too much of western New York in him for that. He was brilliant and cynical, but not quite a polished trifler; he was too much a man of the party machine, the intimate of the astute political manager Thurlow Weed. In spite of his sixty years, he attracted young men with his warmth and kindness, and by the unassuming simplicity of his manner. Although his doctrine of " 'the irrepressible conflict' between free labor and slavery had made him hated throughout the South, he was considered a man without convictions, a Jesuit and an opportunist. . . ."

Sitting at breakfast at the Willard Hotel on the morning of Lincoln's arrival, Seward must have had mixed feelings about the President-elect and about the incoming administration. Only a year earlier, the overwhelming view of political pundits had been that he, not Lincoln, would be the Republican nominee for President. Now he would be Secretary of State in the Cabinet of a man whom he barely knew, and whom he regarded as his inferior in virtually every way. And the new administration would confront the greatest crisis in the history of the nation.

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