Madison's Music (28 page)

The only clear message that emerges from over two centuries of experience with judicial review is that it's a game of chance—unpredictable and deeply dependent on the political beliefs of the justices who read the open-ended provisions of the Constitution against the backdrop of their personal values. Every presidential election is a rolling constitutional convention empowering the winner, with the advice and consent of the Senate, to populate the Supreme Court with justices who will, in hard cases, bend the arc of the Constitution to reflect the values of the president who appointed them. That's not to say there is no difference between judges and legislators. In most cases (especially in the lower courts), a combination of clear text and binding precedent provides real guidance to a principled judge, overriding political preferences. Even in the Supreme Court, where cases are chosen primarily because lower courts disagree over the right answer, most cases can be decided as a matter of text and precedent. But in genuinely hard cases, where text and precedent run out, there is no escape from value-laden judging. Would recovering Madison's music provide a complete antidote to the huge gamble that is judicial review?
Would it eliminate value-driven disagreement over constitutional meaning? Of course not. The Constitution's abstract and ambiguous text will always resist efforts to domesticate it fully and can never be divorced entirely from the values of the judges doing the reading. But rediscovering the music in Madison's lost poetry would improve the odds by vesting the Bill of Rights with a coherent theme. Over time, the magnetic field of that theme should lead to a reading of the text that is closer to both its brilliantly structured organization and its timeless story of the intimate relationship between democracy and individual freedom.

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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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 months 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.
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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.
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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.
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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.
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