June 19, 2020 Articles

Appellate Precedent and Executive Power in the Time of COVID-19

Americans must ask themselves how much they are willing to cede in times of fear.

By Robert A. O’Donnell

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U.S. military forces under the Authorization for Use of Military Force fight groups that did not exist when Congress passed that wartime resolution. Detention without trial under President Bush evolved into proxy assassinations under President Obama. President Trump’s administration appears chary of committing to the Middle East, though it has still made targeted strikes, sometimes dramatic ones, under the justification of national security.

Now, a new national security threat has arisen, and it, too, has emboldened politicians’ clamor for yet more power. At the time of this writing, a respiratory infection from inland China has shattered the world. The global response to the pandemic has been unprecedented: nations have imposed widespread lockdowns and closed their borders.

Americans must ask themselves how much they are willing to cede in times of fear, whether their concessions are temporary or whether the American governments, like C. S. Lewis’s N.I.C.E., intend to garrison their posts with each new advance. This brief study turns to the obscure past to help with the hard work of coming to understand the various ways that our legal tradition has interpreted the proper scope of a just government’s authority during times of crisis.

Demerara and the Military Trial of Civilians

We last considered a disagreement between Justices Antonin Scalia and Clarence Thomas concerning the deference that the courts should grant to the executive branch to imprison citizens without process during times of war. We examined the long fight in the Supreme Court over the meaning of Ex parte Milligan, a case from the Civil War that addressed military trials of citizens. The Supreme Court discussed Milligan at length in Ex parte Quirin, the military trial of Nazi saboteurs in WWII, and later in the Bush-era detention case of Hamdi v. Rumsfeld. We now continue that theme, turning to one of the controversies that the Milligan Court cited in order to situate itself within the British legal tradition: the 1824 debate in British Parliament over the death of the “Demerara Martyr”—the Reverend John Smith. Through that debate, our tradition evolved to address the treatment of civilians during crises and to consider the doctrine of necessity as an excuse for a government’s intrusion into the lives of its subjects or citizens.

Rev. Smith was arrested by island authorities and charged with encouraging the Demerara slave rebellion of 1823. Though Smith was a civilian, a court-martial tried and sentenced him to death. He died of pneumonia awaiting news of his commutation from England. The Commons ultimately rejected a motion to condemn the administration of justice on Demerara during and immediately after the slave rebellion, but the debate surrounding the motion illuminates Parliament’s intuitions concerning the correct process to demand during chaotic times, as well as the conflicted heritage of the laws of war in our tradition.

Those who condemned Rev. Smith’s military trial did so in the spirit of the great body of legal custom arising from early articulations of Britain’s unwritten constitution. They invoked in particular the Petition of Right, which arose from numerous grievances, chief among them the Crown’s repeated attempts to try civil offenses by military tribunal. The petition states that “no man ought to be adjudged to death but by the laws established in this realm, either by custom of the realm, or by Acts of Parliament,” and “the commissions for proceedings by martial law shall be revoked and annulled, lest by colour of them, any of His Majesty’s subjects be destroyed or put to death, contrary to the laws and franchise of the land.” The laws and franchise of the realm, preserved by the courts of common law, guardians of British custom, were meant to extend through all the holdings of the Crown, to every subject, even if he be “born, or resident, or settling for a season, in those new dominions.”

The petition immediately preceded England’s civil war and the execution of her king but, like the civil war itself, addressed controversies that preceded Charles I. From 1611 to 1621, Charles’s father, James, ruled without a true parliament. The judiciary fought back, led by Sir Edward Coke, one of the greatest of England’s jurists, one deeply learned in medieval law, and one who hoped for a renewal of the many medieval precedents that if renewed would oppose the Crown’s new claim to broad authority. Coke and the courts began to confront James with the old Roman and medieval notion that the law was greater than the sovereign, that the law was not so much made as discovered. When Charles I needed money for war with Spain and tried to force a loan, many English noblemen refused. Charles threw them into prison. Five of these, the “Five Knights,” applied to the courts for habeas corpus, but the King’s Bench refused to assert the rights of the imprisoned against the Crown. In response, Coke guided Parliament to enunciate the Petition of Right, which denounced, among other injuries, the denial of habeas corpus and martial trial of civilians, these things “being contrary to the rights and liberties of the subject, and the laws and statutes of the nation.”

Demerara and the Petition of Right

The Petition of Right, and the principles it implies, formed the background of Parliament’s debate over the trial of Rev. Smith and the limits of military justice. By invoking the petition, Parliament was anchoring its discussion in one of the deepest and truest expressions of British custom, what Winston Churchill called the main foundation of English freedom, i.e., the principle that denied the prerogative of government to imprison a man for reasons of state—“and that denial, made good in painful struggles, constitutes the charter of every self-respecting man at any time in any land.” 2 Winston Churchill, History of England 185 (1957).

Churchill was merely enunciating a constitutional principle that had wide acceptance for centuries. The Demerara debate over Rev. Smith’s treatment shows just how deeply the English objected to military trials of civilians. Henry Brougham in his first address in the debate argued that the treatment of Rev. Smith was anathema to received custom: “[M]artial law of such a description . . . is entirely unknown to the laws of England. . . .” British Parliamentary Debate on the Trial of Rev. John Smith 23 (Odeen Ishmael ed., 2013) [hereinafter Trial of Smith].

Importantly, Brougham addressed the doctrine of necessity. He argued against the prerogative of a military court to usurp the authority of the common law and added that a military court could not hide its usurpations of power under the cloak of necessity. To Brougham, no principle of necessity could correctly be invoked as long as the civilian courts were open. Indeed, when any court is “created by necessity,” then “necessity must limit its continuance,” for “it would be a calamity unspeakable if the whole law and constitution of England were suspended one hour longer than the most imperious necessity demanded.” Id. at 31. That would be the persistent argument in the Commons among those who wished to condemn Rev. Smith’s treatment: a court-martial may indeed try civilians in the case of a needed emergency closure of the civilian courts of justice, but the military courts in Demerara had continued to try civilians after the rebellion had been quelled.

Indeed, in an effort to show that the claims of necessity on the part of the military government in Demerara were illusory, Brougham took pains to emphasize both the length of the imposition of martial law, as well as the relative peace in Demerara in the months after the rebellion: “In the midst of tranquility, that offence against the constitution was perpetrated for months, which nothing but the most urgent necessity would warrant for an hour.” Id.

Sir James Mackintosh similarly rejected the premise that the authorities in Demerara could rightly appeal to necessity to justify imprisoning Smith by rule of military tribunal. Sir James agreed with Brougham that the open administration of civil courts implies that no real military necessity exists for courts-martial. Sir James clearly interpreted British custom to proscribe military trial of civilians when the civil courts are able to sit: “[N]othing but the necessity arising from the absolute interruption of civil judicatures by arms can warrant the exercise of what is called military law.” Id. at 110. And again: “[B]y the law of England [martial law] cannot be exercised except where the jurisdiction of the courts of justice is interrupted by violence.” Id. at 112. Where common law prevails in parts of the country, martial law can only be exercised by “an extraordinary imposition of the supreme legislative authority itself.” Id. at 111.

While reminding the Commons that “[t]he only principle on which the law of England tolerates what is called martial is necessity,” Mackintosh invoked Hale to argue that martial law is really just a rude substitute: In fact, it is “not a law, but something indulged, rather than allowed, as a law.” Id. at 109–10 (quoting Matthew Hale, The History and Analysis of the Common Law of England 40 (1713)). Hale goes further, arguing that the “Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the Land.” Hale, supra, at 41 (paraphrased by Trial of Smith, supra, at 110 (Mackintosh speech)). Justice Davis later adopted Hale’s rule in Milligan and thereby helped make it a foundational precept of American legal analysis concerning the trial of civilians before courts-martial.

Implications of the Demerara Debate

A state’s appeals to necessity—by definition appeals to something outside the law—are anticipated by wise lawmakers who understand that a state will act against the law out of what it calls necessity much as a man will act against prohibitions against killing when confronted with the necessity of his own self-preservation. See Ex parte Jones, 71 W. Va. 567, 77 S.E. 1029 (1913).

The Milligan Court, by invoking the debate over Rev. Smith, anchored its analysis in that intuition, namely, that force will do what it will in emergencies but that military exigency should not receive the consent of the legitimate courts. George H. Pugh, in oral argument during the Milligan era, captured the sentiment: A commander usurping the traditional role of the courts “may take it without my consent; he may be so strong that I cannot resist . . . but . . . no power on earth can deceive me . . . into any measure of compliance.” Ex parte Vallandingham, 28 F. Cas. 874, 880 (C.C.S.D. Ohio 1863). Even though the Supreme Court refused to take Vallandingham’s appeal from his conviction by military tribunal, it would later acknowledge in Milligan that it indeed had jurisdiction over military courts trying civilians and that civil courts need not bestow their imprimatur over careless appeals to military necessity.

Similar worries about a state’s abusing claims to necessity underlie the intuition, famously acknowledged in Milligan but recognized throughout the common law, that military necessity is attained only when the courts are closed. Theobold Wolfe Tone’s agent made the argument eloquently when he went before the King’s Bench in 1798, dramatically convincing the court to send the sheriff racing to the barracks to stay the execution of Tone, an Irish rebel:

In times when war is raging, when man was opposed to man in the field, courts martial might be endured; but every authority is with me, while I stand upon the sacred and immutable principle of the constitution—that martial law and civil law are incompatible—and that the former must cease with the existence of the latter.

Much authority was with him, indeed, and much of that authority claimed then and in the many decades that followed that martial law and civil law are so incompatible that the courts of the former cannot have authority over civilians as long as those of the latter are able to sit. That is, the common law will tolerate military courts to act as civil courts only “when the regular court of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be open.” The Parkhill, 18 Fed. Cas. No. 10,755a (E.D. Pa. 1861); see also Ex parte McDonald, 49 Mont. 454, 459 (1914) (“the executive can establish martial law in time of war when the ordinary tribunals are not open”).

America’s founding thinkers likewise understood the dangers of a government acting outside the law. James Madison, for example, expressed the following in Federalist No. 41: “It is in vain to impose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power.” A wise lawmaker works not to prevent a state from acting illegally out of what it calls necessity, but rather finding ways to circumscribe that action—ways to limit appeals to necessity through prudent foresight and through the threat of liability after the fact. To such an end, the Parliament of England acted to establish the Habeas Corpus Act under Charles II: the “Magna Carta only in general terms declared that no man should be imprisoned contrary to law; the Habeas Corpus Act points him out effectual means, as well as to release himself, though committed even by the King in Council, as to punish all those who unconstitutionally misuse him.” 4 William Blackstone, Commentaries on the Laws of England 439 (1979).

Alexander Hamilton shared Madison’s worry. In Federalist No. 25, Hamilton argued that allowing a government to undertake illegal measures in the name of necessity would undermine the authority of law in measured steps:

[E]very breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.

When a government invokes necessity in order to justify its courts-martial, it begins to corrode the law. To be sure, courts-martial are not courts at all; they are, to recall Hale, merely something indulged. Indeed, courts-martial “are more committees formed for the purpose of carrying into execution the discretionary power assumed by the government.” In re Egan, 8 F. Cas. 367 (N.D.N.Y. 1866). The Egan court continued:

When foreign invasion or civil war renders it impossible for courts of law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military, which is the only remaining force in the community; and, while the laws are silenced by the noise of arms, the rulers of the armed force must punish, as equitably as they can, those crimes which threaten their own safety and that of society; but no longer.

Id. at 368.

To that end, the doctrine of necessity threatens to consume the law from the inside. Hale expressed the worry much earlier: “[M]en’s properties would be under a strange insecurity, being laid open to other men’s necessities, whereof no man can possibly judge.” 1 Matthew Hale, History of the Pleas of the Crown 54 (G. Wilson ed., 1778). Though as eminent a natural law theorist as Thomas Aquinas allows for the appropriation of property in times of need (Summa Theologica II-II, quaestio 66, articulus 7), a more worrying conflict between the claims of the moment and the claims of moral order arises when a state’s claim to necessity places a man’s life or liberty in the dock.

Arguments from necessity seem to stand athwart the hope for true law in right reason with nature, a law that does not vary with place or time. Cicero famously articulated the need for vera lex, one true law for all men at all times:

True law is right reason in agreement with nature, let out to all, constant, sempiternal . . . there is not one law in Rome, another in Athens; one now, another later; but rather one immutable and sempiternal law for all men and for all times, and there will be one master and ruler, God, for He is the author of this law, its promulgator, and its judge.

The Republic 3.33. An appeal to necessity, by contrast, introduces contingency into vera lex, justifying lawbreaking by the avoidance of a harm greater than that undertaken. The act of breaking the law out of a proposed necessity by its very nature implicates the sacrifice of some for the sake of the many and acknowledges no principle to protect the former as long as the interests of the latter countervail.          

The judge who takes such a position, who justifies lawbreaking, introduces himself and his judgment as the true authority. The judge, by appealing to necessity as a justification for ignoring the laws, hands down decrees based on his own calculus of the social advantage of one course over that of another. He does not speak from the law, as the doctrine of necessity is by its very nature outside the law. Some judges repudiate the entire practice and refuse to invoke necessity in all cases—fiat justitia ruat caelum. An increasing cadre of others invoke necessity whenever it is politically expedient. Many likely fall somewhere between. But after the emergency has passed, the law must somehow reconcile itself to the unlawful action.

The Greeks were sensitive to the limitations of the law and to their incapacity to judge the agon among the gods—dramatized in their tragedies as a contest among ethical obligations, each with unimpeachable claims. Antigone at the burial ground and Agamemnon upon his foundering ship face the horror not that the good is difficult to discern but that it is unavailable. The unhappy hero must break the law and is left to the Furies; the city lives on, one way or another, and is chastened by her own injustice, resigned to the scandal of moral luck.

In a tragic world, the best laws perhaps do not attempt to preempt extralegal appeals to necessity but rather to contain them, and to develop institutions resilient enough to survive them. For every Cincinnatus there are 100 Caesars, and we will never want for folly or ambition among our leaders. But it has been a peculiarly American principle, one that perhaps takes Machiavelli’s side against, say, Francesco Petrarca and Francesco Patrizi, one that respects but moderates away from the classical traditions of virtue politics (though the Senate was conceived as a place for men of arête, of moral excellence; perhaps we would do well to meditate upon that rich irony) in order to try to build a just system that can survive unjust men.

We were not meant to leave the great tradition entirely behind. Both Madison and John Adams were passable students of Plato, though Aristotle in particular is most useful here: an invocation of necessity to overcome established legal protections perhaps makes sense when it is invoked not so much to make unlawful action lawful but rather to make unlawful action excusable. That is, we make allowance for the unlawful actor when he does not act with the malice that criminal law often is intended to punish—when the actor, not truly intending the consequence of his action, has the exigency of the moment thrust upon him: “[i]n some cases such submission [to moral disgrace] though not praised (epainos) is given allowance, when a man does something wrong through fear of penalties that impose too great a strain on human nature, and that no one could endure.” Aristotle, Nicomachean Ethics 1110a.20ff. We punish criminals for acting in ways avoidable by ordinary human resistance. Necessity, on the other hand, leaves room for the extraordinary. We do not absolve the unlawful act, but we excuse the actor out of an understanding of our shared human frailty.

Such a position may reconcile the intuitions of the British parliamentarians with the actions of the courts-martial during crises. The former could not find in the English tradition a justification for the suspension of the protections of law during times of crisis; the latter would not allow its authority to defer to constitutional discipline. The tragic vision suggests that we accept that the tension is not one resolved through theory but rather one that is mitigated through the nurturing of post facto measures that corral and minimize what law cannot prevent.

Demerara Debate: Application to Today’s World

At the moment, agents speaking for an increasingly technocratic and omnipresent state address the nation daily. They adjure us to shutter our businesses and to stay clear of our friends. They promise to lend from the Federal Reserve almost without interest. They hint at still other measures to increase money supply. They announce new travel restrictions by the day. They warn of a million deaths. They justify each measure as a necessity during times of crisis. Most, if not all, of America’s rich coastal cities have imposed mandatory closures of one sort or another. We are told that our neighbors are a threat, each perhaps unknowingly carrying a fatal disease. In order to offer an extraordinary remedy, our governments have assumed extraordinary powers. Our common-law tradition demands that those powers be surrendered at the earliest chance.

Robert A. O’Donnell is an attorney in Coral Gables, Florida.


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