THE CONSTITUTION ON RAINY DAYS
Despite the blip of the Warren Court, many believe that the Bill of Rights seeks to do the impossible. The rights of the weak, critics argue, can never be effectively protected against the tyranny of the strong by something as ephemeral as ambiguous “parchment barriers” construed and enforced by human beings dressed in judicial robes. Judges, critics argue, will inevitably vote their politics and their fears and call it law.
Unfortunately, the critics have a point. The “parchment barriers” in the First Amendment have too often failed to protect vulnerable people, especially in times of fear and crisis. We’ve already seen the collapse of the First Amendment in the frenzy of censorship unleashed by President John Adams during the run-up to the election of 1800. A year after Benjamin Franklin’s nephew died in jail after being arrested for criticizing Adams too severely, his successor at the Philadelphia Aurora, William Duane, was arrested for printing a confidential letter from Adams discussing pro-British sentiment in his administration. Freed temporarily to consult with counsel at the urging of Vice President Thomas Jefferson, Duane went into hiding until the end of Adams’s term.
After the Alien and Sedition Acts had expired on December 31, 1801, John Marshall’s fiercely partisan younger brother, James, a D.C. Circuit judge, ordered a common-law seditious libel prosecution of newspapers in the District of Columbia for criticizing the Federalist judiciary. Jefferson simply ignored the younger Marshall’s order. Yet even Jefferson tried to lock up his critics. In 1806, he instigated a common-law seditious libel prosecution against the publisher of a Connecticut newspaper for claiming that Congress and the president had bribed Napoléon in order to facilitate a treaty with Spain. The criminal prosecution was not dismissed until 1812, when the Supreme Court finally put an end to judge-initiated federal criminal libel prosecutions, ruling that only Congress could create a federal crime.73 Occasional state seditious libel prosecutions continued for another 150 years until the Supreme Court finally outlawed them in 1964 as a violation of the First Amendment.74
First Amendment parchment barriers did not prevent one of our iconic presidents, Abraham Lincoln, from imposing unilateral military rule, imprisoning critics of the Emancipation Proclamation, jailing opponents of military action against the South, and closing hostile newspapers. Lincoln began in 1861 by imposing de facto military rule in the area surrounding Washington, D.C., unilaterally suspending the writ of habeas corpus in apparent violation of Article I, section 9, clause 3, which vests the suspension power in Congress. In Lincoln’s defense, because Congress wasn’t in session when the Civil War broke out, the president probably had no choice but to act alone in order to safeguard railway approaches to the capital enabling troops from Pennsylvania to reinforce those at Washington. When John Merryman, a captain in the Maryland Horse Guards and a well-known Confederate sympathizer, was arrested by federal military authorities and charged with treason on suspicion of seeking to cut the railroad line, Lincoln ignored the opinion of Chief Justice Roger Taney directing the president to release Merryman for trial in a civilian court.75 Because it was the same Roger Taney who had written the racist Dred Scott decision three years earlier and because Merryman was little more than an armed terrorist, it’s hard to be too upset with Lincoln’s high-handed behavior during a genuine emergency. Indeed, faced in 1862 with Congress’s refusal to exercise the suspension power and with several lower-court decisions agreeing with Taney’s Merryman opinion, Lincoln finally ordered the release of almost all political prisoners in military custody, including Merryman.76
Whatever the extraconstitutional justification for Lincoln’s unilateral resort to military rule in the early days of the Civil War, his treatment of Clement Vallandingham is hard to swallow. Vallandingham was a two-term Democratic member of Congress from Dayton, Ohio, who vigorously opposed the use of military force to preserve the Union. After his defeat for reelection in 1862, Vallandingham continued to lead the opposition to the war in Ohio. In 1863, he delivered a fiery address attacking “King Lincoln’s” “cruel and unjust war.” In response to the speech, the military governor of Ohio, General Ambrose Burnside, ordered Vallandingham’s arrest and trial by military court martial. Vallandingham was convicted and sentenced to two years in a military prison. The Supreme Court declined to intervene.77 Lincoln personally approved Vallandingham’s arrest and military trial but commuted his sentence to banishment to Confederate territory. Once behind Confederate lines, Vallandingham promptly ran the Union blockade to Bermuda and continued to Canada, where he accepted the Democratic nomination for governor of Ohio. Vallandingham ran a defiant gubernatorial campaign from his Canadian headquarters in Windsor, Ontario, but lost in a landslide to the Union candidate.78 After the war, Vallandingham returned to the practice of law. In 1877, while showing colleagues how an alleged murder weapon could have accidentally discharged, he shot himself fatally. His client was acquitted. Now that’s vigorous advocacy!
Lincoln’s treatment of Lambdin P. Milligan was a replay of his treatment of John Merryman. Milligan was an Indiana lawyer (he had been in the same law class as Lincoln’s secretary of war, Edwin Stanton) who vocally opposed the war. By 1864, Milligan was suspected by military authorities of plotting to free Confederate soldiers from Northern prisoner-of-war camps by force and arm them to lead insurrections. Milligan and five colleagues were arrested in Indiana, tried before a military commission, and sentenced to death. Two days before the scheduled hangings, President Andrew Johnson commuted the sentences to life. In 1866, the Supreme Court, emboldened by the end of the war, echoed Taney’s decision in John Merryman’s case, holding that Milligan should not have been tried by a military commission because the civilian courts were open and capable of conducting a traditional criminal trial.79 Five justices based their opinion on lack of explicit congressional authorization of the military tribunals. Four ruled that Congress lacked power to force a civilian to stand trial in a military tribunal when the civilian courts are open. Milligan was released and promptly sued General Alvin P. Hovey, the general who had ordered his arrest and military trial, for false imprisonment. Milligan won, but the jury returned a verdict of only $5 against General Hovey, reflecting its disgust with Milligan’s efforts to extend the war. General Hovey was brilliantly defended by Benjamin Harrison, who would go on to become the twenty-third president.
After Lincoln’s assassination, the military government in the Reconstruction South continued to use force to crack down on dissent.80 William H. McCardle, a newspaper editor from Vicksburg, Mississippi, wrote an inflammatory editorial challenging the legality of Reconstruction. He was promptly jailed by the local military commander. McCardle appealed directly to the Supreme Court, questioning the constitutionality of continued military occupation of the South. After the Supreme Court had heard four days of oral argument, Congress, nervous about what the Court might say about the constitutionality of Reconstruction and citing Marshall’s disastrous reading of the Exceptions and Regulations Clause in Marbury, retroactively eliminated the Supreme Court’s appellate power to hear cases like McCardle’s. President Johnson vetoed the court-stripping bill, but Congress overrode the veto. The McCardle case ended with a whimper when the Supreme Court caved in and dismissed McCardle’s appeal for lack of jurisdiction.81 The Supreme Court never did consider the constitutionality of military occupation of the South, which continued until 1876, when Rutherford B. Hayes won the presidency by a vote of 185–184 in the Electoral College despite losing the popular vote. Hayes secured the votes of 20 contested presidential electors needed to put him over the top by promising to withdraw troops from the South, ushering in an era of intense racial discrimination throughout the states of the old Confederacy. The “safe-harbor” provision at issue in Bush v. Gore was intended to prevent replays of the 1876 fiasco.82
Nor did the First Amendment’s parchment barrier provide much shelter to war resisters jailed for opposing World War I. Eugene Debs, who had been imprisoned for four mo
nths in 1895 for urging Pullman workers to strike in the teeth of a no-strike injunction, was arrested in 1917 for expressing opposition to World War I. Debs, who had run for president on the Socialist ticket in 1904, 1908, and 1912 (polling almost 10 percent of the popular vote in 1912), was convicted and sentenced to ten years in prison. The great Oliver Wendell Holmes Jr. affirmed Debs’s conviction and draconian sentence in 1919, ruling for a unanimous Supreme Court that Debs’s public speeches praising draft resisters and criticizing the war demonstrated a seditious intent to obstruct the war effort.83 From his prison cell in the Atlanta Federal Penitentiary, Debs polled almost one million votes for president in 1920. The great Woodrow Wilson rejected repeated pleas for clemency on Debs’s behalf from his attorney general, A. Mitchell Palmer, hardly a supporter of radical causes.84 It wasn’t until President Warren G. Harding (perhaps our most reviled president) took office in 1921 that Debs, by then a very sick man, had his sentence commuted to time served. Debs left the Atlanta Penitentiary to the cheers of the prisoners, visited President Harding at the White House briefly to say “thank you,” and returned home to a crowd of fifty thousand well-wishers in Terre Haute, Indiana. Banned under his sentence from ever voting or running for office again, Debs died in 1926.
Charles Schenck, the general secretary of the Socialist Party, and his colleague Dr. Elizabeth Baer shared Debs’s legal fate, although not his excessive sentence. Schenck and Baer arranged for the printing and mailing of leaflets opposing the war, arguing that the military draft was a form of slavery in violation of the Thirteenth Amendment. The leaflets, which urged citizens to assert their rights and to refuse to be intimidated, called the draft a “monstrous injustice” calculated to help Wall Street, but the writers carefully refrained from advocating disobedience, instead urging recipients to petition for redress of grievances. Despite the relatively restrained nature of the leaflets, Schenck and Baer were convicted in federal court in Philadelphia. Schenck was sentenced to six months in jail; Baer, ninety days. In 1919, Oliver Wendell Holmes Jr., writing for a unanimous Supreme Court (including the great Louis Brandeis), affirmed the convictions because, in the Court’s view, the leaflets posed an unacceptable danger to the war effort.85
At least Debs, Schenck, and Baer knew what they were getting into. Some opponents of World War I never knew what hit them. Jacob Frohwerk and Carl Gleeser, editors of the Staats Zeitung (National News), a German-language newspaper in Kansas City, Missouri, wrote a series of editorials in German aimed at the German-speaking community of Missouri, charging that the prosecution of the war was corrupt and was designed to favor moneyed interests. The articles never mentioned the draft. Gleeser pled guilty to unlawfully obstructing the war effort in the hope of receiving a lenient sentence. He got five years. Frohwerk, who was the president of the Kansas branch of the National German-American Alliance, went to trial, was convicted, and got ten years. The court noted that his editorials might have found their way into the hands of draft-eligible German American youth and exerted a “bad tendency” to foster resistance to the draft. Oliver Wendell Holmes Jr. once again spoke for a unanimous court in affirming Frohwerk’s conviction and harsh sentence.86
What happened to Jacob Abrams and his co-defendants, Mollie Steimer, Hyman Lachowsky, and Samuel Lipman, was even worse. Abrams and his three confederates were charged with tossing copies of two leaflets from a tenement window to a street on the Lower East Side of Manhattan. One leaflet, written in English, opposed the use of American troops in Russia. The second, in Yiddish, called for a general strike and the cessation of munitions production. The four young radicals were arrested and convicted. A fifth, Jacob Schwartz, died in police custody under suspicious circumstances. The federal trial judge ruled that the leaflets had a “bad tendency” to lead readers to engage in unlawful acts. The three men were each sentenced to twenty years in prison. Mollie Steimer, twenty years old, four feet nine inches tall and weighing all of ninety pounds, was sentenced to fifteen years.
This time, Holmes and Brandeis finally voted to reverse the convictions, but seven members of the Supreme Court voted to affirm.87 After Woodrow Wilson refused to consider a postwar amnesty for political prisoners, Warren Harding ordered the four released, but only if they agreed to be deported to Russia.88 Samuel Lipman died in Stalin’s purges. Hyman Lachowsky perished under the Nazis. Mollie Steimer was arrested by the Bolsheviks in 1922 and deported from Russia to Germany the following year. When Hitler assumed power, she fled from Germany, only to be arrested in France and placed in a concentration camp. After World War II, Mollie settled in Mexico City, where Jacob Abrams was editing a Yiddish-language newspaper. She died in Mexico in 1980 at the age of eighty-three.
“Parchment barriers” had a decidedly mixed record during World War II. Things started badly in 1940 when the Supreme Court, picking up just about where it had left off with Mollie Steimer in 1919, voted 8–1 (with justices Black and Douglas joining the majority) to uphold the expulsion of young Jehovah’s Witnesses from public school for refusing to salute the flag.89 Three years later, though, the Court reversed itself and issued one of its most celebrated free speech opinions, ruling 6–3 that compulsory flag salutes violate the First Amendment. Felix Frankfurter dissented.90 Seventy years after it was written, Justice Jackson’s magnificent First Amendment rhetoric in Barnette retains the power to inspire.91 In 1944, however, the parchment barriers collapsed once again. In Korematsu v. United States, the Supreme Court upheld the constitutionality of military orders forcing more than 130,000 innocent Japanese Americans, citizens and lawful permanent residents alike, into internment camps during World War II.92 Not one of the internees was or has ever been charged with unlawful action. No similar wartime programs were even considered for the nation’s German or Italian communities.
We feign astonishment today that we could have been so racist, but the infamous Korematsu opinion was supported by FDR and Earl Warren (as governor of California), written by Hugo Black, and joined by William O. Douglas. In fact, Black and Douglas were the swing votes in a 6–3 decision.
Things didn’t get much better in the 1950s, during the Cold War. During the McCarthy years, despite the First Amendment, ninety-three leaders of the American Communist Party went to jail, not for anything they actually did, but simply for leading a lawful political party pledged to the violent overthrow of capitalism at some point in the indefinite future.93 Thousands of Americans were fired, harassed, and blacklisted solely because of suspected sympathy with communism or socialism. Consider the fate of one of the nation’s original defenders of free speech, Elizabeth Gurly Flynn. Flynn’s life was the stuff of legend. Born in Concord, Massachusetts in 1890, Flynn and her family moved to New York City in 1900. In 1906, Elizabeth celebrated her sixteenth birthday, gave her first speech (at the Harlem Socialist Club), was arrested for the first time (along with her father) for speaking on Broadway without a permit, and was expelled from high school for political activities. By her seventeenth birthday in 1907, Flynn was a full-time organizer for the International Workers of the World, touring Western mining camps as a charismatic platform speaker. She worked with Big Bill Haywood, visited Joe Hill in jail in 1914 (he wrote a song for her called “Rebel Girl”), and played prominent roles in strikes and IWW free-speech movements in Spokane, Missoula, Philadelphia, Lawrence, Paterson, Duluth, Chicago, and the Mesabi Range. Theodore Dreiser called her a young Joan of Arc. Along with Roger Baldwin (and Felix Frankfurter), she was a charter member of the ACLU in 1919. Her membership was not surprising, for in its early days, one of the ACLU’s reasons for being was protection of IWW organizers, both from prosecution for opposing World War I and from arrest for union-organizing activities. Beginning in 1921, Flynn worked tirelessly in an unsuccessful effort to spare Sacco and Vanzetti from the death penalty. In 1927, she collapsed on a speaking tour of the West. Medical diagnoses included an obscure heart ailment, an impacted wisdom tooth, and a strep infection, but the root cause of Flynn’s collapse was almost certainl
y emotional. The execution of Sacco and Vanzetti literally broke her heart. Flynn remained in Portland, Oregon, for almost ten years. In 1936, she returned to New York and was welcomed home as a prodigal daughter. The ACLU unanimously elected her to its board of directors. The American Communist Party welcomed her as a new member in 1937, elected her to the Central Committee in 1938, and to the Political Bureau in 1941. In 1942, Flynn ran for Congress at-large from New York State on the Communist Party ticket and received more than fifty thousand votes. In 1951, she led the mass movement in support of the Communist Party defendants in the first wave of Smith Act prosecutions and was swept up in the second round of indictments. Convicted of holding a leadership position in the American Communist Party, Flynn served two years in federal prison. In 1961, she became chair of the American Communist Party. Flynn died unexpectedly in Moscow in 1964. Her posthumous papers revealed that one of her great regrets was not defending the principle of free speech within the American Communist Party. Perhaps it was just deserts, but the free-speech principle that Flynn ignored as a Communist Party official not only failed to protect her from criminal prosecution for her beliefs, but it couldn’t even protect her from being expelled from the ACLU board in 1938 for her association with communists.
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