All the Laws But One: Civil Liberties in Wartime Paperback - 2000

First line

"A COLD DRIZZLE of rain was falling February 11 when Lincoln and his party of fifteen were to leave Springfield on the eight o'clock at the Great Western Railway Station.

From the jacket flap

In All the Laws but One, William H. Rehnquist, Chief Justice of the United States, provides an insightful and fascinating account of the history of civil liberties during wartime and illuminates the cases where presidents have suspended the law in the name of national security.
Abraham Lincoln, champion of freedom and the rights of man, suspended the writ of habeas corpus early in the Civil War--later in the war he also imposed limits upon freedom of speech and the press and demanded that political criminals be tried in military courts. During World War II, the government forced 100,000 U.S. residents of Japanese descent, including many citizens, into detainment camps. Through these and other incidents Chief Justice Rehnquist brilliantly probes the issues at stake in the balance between the national interest and personal freedoms. With All the Laws but One he significantly enlarges our understanding of how the Supreme Court has interpreted the Constitution during past periods of national crisis--and draws guidelines for how it should do so in the future.

Excerpt

A cold drizzle of rain was falling February 11 when Lincoln and his party of fifteen were to leave Springfield on the eight o'clock at the Great Western Railway Station. Chilly gray mist hung on the circle of the prairie horizon. A short locomotive with a flat-topped smokestack stood puffing with the baggage car and special passenger car coupled on; a railroad president and superintendent were on board. A thousand people crowded in and around the brick station, inside of which Lincoln was standing. One by one came hundreds of old friends, shaking hands, wishing him luck and Godspeed, all faces solemn. Even huge Judge Davis, wearing a new white silk hat, was a somber figure."

On that dreary Illinois winter day in 1861, President-elect Abraham Lincoln began his journey to Washington, D.C., where he hoped to be inaugurated as President on March 4. "Hoped to" because there were already rumors afloat that secessionist sympathizers would somehow prevent his inauguration from taking place. In the November presidential election, Lincoln had prevailed over three opponents, receiving 180 electoral votes. The incumbent Vice President, John Breckenridge, the candidate of the South, received 72; John Bell, the candidate of the Constitutional Union Party, 39; and Lincoln's longtime Democratic opponent Stephen Douglas, only 12. But the electoral vote did not tell the whole story of this bitterly contested election. Lincoln received a minority of the popular vote, slightly less than 1.9 million votes out of a total of some 4.7 million. In ten states of the South, he did not get a single popular vote. Indeed, he was not even on the ballot in some states. He was elected by the nearly solid electoral votes of the North, together with those of California and Oregon. In an election dominated by the issue of the extension of slavery, Lincoln received no electoral votes from any state south of the Ohio River.

Unquestionably, then, he was a sectionally chosen President, and soon after his election the states of the Deep South began to carry out their threat to secede from the Union. Within days of the election, the two Senators from South Carolina resigned their seats, and the state legislature enacted a bill calling a convention to determine whether it should secede from the Union. Delegates were duly elected, and on December 20, 1860, the convention voted to take South Carolina out of the Union. By the time Lincoln was boarding the train to Washington, South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana had passed ordinances of secession, and delegates from these states were meeting in Montgomery, Alabama, to launch the Confederate States of America.

From the rear platform of the car that would bear him and his party on their slow and circuitous journey to Washington, Abraham Lincoln said goodbye to his Springfield friends:

My friends-No one, not in my situation, can appreciate my feeling of sadness at this parting. To this place, and the kindness of these people, I owe everything. Here I have lived a quarter of a century, and have passed from a young to an old man. Here my children have been born, and one is buried. I now leave, not knowing when, or whether ever, I may return, with a task before me greater than that which rested upon Washington. Without the assistance of that Divine Being, who ever attended him, I cannot succeed. With that assistance I cannot fail. Trusting in Him, who can go with me, and remain with you and everywhere for good let us confidently hope that all will yet be well. To His care commending you, as I hope you and your prayers will commend me, I bid you an affectionate farewell.

Lincoln's train moved eastward over the flatlands of Illinois and Indiana, reaching Indianapolis in the late afternoon. There he was greeted by Governor Oliver P. Morton, and spoke in the evening from the balcony of his hotel. The next day, February 12--Lincoln's fifty-second birthday--the special train took him and his party from Indianapolis to Cincinnati, where he could look across the Ohio River to the state of Kentucky, where he had been born.

When little Abe was seven, he moved with his parents and brother north across the Ohio River, to Indiana. His mother, Nancy Hanks Lincoln, died when he was nine, and at the age of twenty-one he moved with his father and family to a farm near Decatur, Illinois.

He worked in a store in New Salem, was elected to the Illinois legislature, and then moved to Springfield, where he began the practice of law in 1836. Six years later, he married Mary Todd, ten years his junior and the daughter of an aristocratic Kentucky family. Four sons were born to them during their twenty-five years in Springfield.

On February 13, the Lincoln train arrived in Columbus, Ohio, and was greeted by friendly crowds. In Washington, D.C., on this same day, the Joint Session of Congress provided for by law met to count the electoral votes. There had been threats, and excitement ran high. All of the doors to the Capitol were patrolled by armed guards, and during the day there was much street fighting between secessionist and Union sympathizers. Ironically, it was Vice President Breckenridge who declared Abraham Lincoln to have been elected President by the Electoral College.

The next day the special train went from Columbus to Pittsburgh, and then on to Cleveland and Buffalo. In Buffalo, Lincoln was met by Grace Bedell, a little girl who had written him that she thought he ought to grow a beard, advice which he had followed. The train proceeded from Buffalo across upstate New York, and on February 18, when it neared Albany, Jefferson Davis was sworn in as President of the Confederate States of America in Montgomery. At that moment there were six states in the Confederacy, but a few days later, on February 23, Texas would vote to secede. All seven states of the Deep South would then regard themselves as being out of the Union. Jefferson Davis, in his inaugural address, had said that the Confederate States of America were taking their place among the independent nations of the earth. "If denied that place, they would seek 'the final arbitrament of the sword'; they would with firm resolve 'appeal to arms and invoke the blessings of Providence on a just cause.' "

Two days later, Lincoln arrived in New York City, already the financial center of the country and one of the world's great ports--and considerably more sympathetic to the South than other parts of the North. Indeed, Mayor Fernando Wood had expressed a wish to declare New York a "free city," independent of both the United States of America and the Confederate States of America. Wood closed the exchange of remarks between himself and the President-elect with a firm insistence on conciliation with the South: "To you, we look for a restoration of friendly relations between the States, only to be accomplished by peaceful and conciliatory means, aided by the wisdom of Almighty God." When the ceremonies were finished, Lincoln was ferried across the Hudson River to New Jersey, and made his way across the state to Trenton, where he addressed the state legislature. New Jersey was the first state on his journey that he had not carried in the election; Douglas had narrowly beaten him there.

Lincoln then proceeded by train to Philadelphia, where he was scheduled to raise the American flag over Independence Hall the next day. That evening, his longtime friend Norman Judd asked him to come to his hotel room to meet with Allan Pinkerton, the founder of the Pinkerton Detective Agency. Pinkerton told Lincoln he had evidence of a plot to assassinate him as he went through the city of Baltimore the day after the flag-raising at Independence Hall. Lincoln questioned Pinkerton at length, and heard the details of a plot by a group of fanatics led by a barber named Fernandina. Pinkerton urged the President-elect to depart directly for Washington that evening, but Lincoln refused. He intended to keep his commitment to raise the flag over Independence Hall the next day, and to visit Harrisburg and speak to the Pennsylvania legislature.

Later that evening Frederick Seward, son of Lincoln's Secretary of State-designate William H. Seward, arrived in Philadelphia bearing a message from his father. The message transmitted a warning from Colonel Stone, chief of the militia for the District of Columbia--much the same warning that Pinkerton had conveyed: a New York detective who had been on duty in Baltimore for several weeks had found evidence of a plot to assassinate Lincoln while his party was passing through Baltimore.

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 Illinois Congressman 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.

Media reviews

"Offers intelligent, balanced commentary . . . a valuable book." --Houston Chronicle

"[Rehnquist is] a most eloquent explicator. . . . All the Laws but One is narrative history of a high order, each episode fixed carefully in its historical context, and not excluding deft characterizations of its principals." --Washington Times

"A dispassionate and lucid book. . . . A highly original account of the proper role of the Supreme Court, a role that makes most sense in times of war, but that has its attractions whenever the Court is embroiled in great social controversies." --The New Republic

"Rich in the history of wartime dilemmas." --The Washington Post

Citations

• New York Times, 01/02/2000, Page 20