"ALL THE LAWS BUT ONE"

November 11, 1998

David Gergen, editor-at-large of "U.S. News & World Report," engages William Rehnquist, chief justice of the Supreme Court and author of "All the Laws But One, Civil Liberties in Wartime."

DAVID GERGEN: Mr. Chief Justice, American historians generally agree that the three greatest presidents we've had are Washington, Lincoln, and Franklin Roosevelt, and yet, two of these men, Lincoln and Roosevelt, play very prominently in your book about how presidents have suppressed civil liberties during time of war. As you went through this, did your estimation of these two men go up or go down? WILLIAM REHNQUIST, Author, "All The Laws But One:" I don't know that it changed, because certainly Lincoln, more so than Franklin Roosevelt, did suppress civil liberties during the Civil War, but both Lincoln and Roosevelt were devoted to - Lincoln to winning the Civil War, saving the union, and Roosevelt to winning World War II. And I think an executive in that position is probably not going to be a great champion of civil liberty. DAVID GERGEN: And probably not a great president unless he has to - unless he sets forward the larger goals, and he may have to cause some hardship in the process. WILLIAM REHNQUIST: That's right. You don't want someone who is constantly kind of overly cautious in a situation like that. You want someone who has balance. DAVID GERGEN: Were you drawn to this book by the conflict between Lincoln and Chief Justice Taney in the Supreme Court? WILLIAM REHNQUIST: Yes, I was. I've been interested in Lincoln for some time and also interested in the history of the court and its members. Of course, Roger Taney was one of the prominent ones. DAVID GERGEN: And that case was the first that really -the one between them - regarding Baltimore - a man named John Merriman - was a front runner - really you open the book with that. WILLIAM REHNQUIST: That's right. It was really the first effort by Lincoln to suppress, if you want to call it that, or circumscribe people's civil liberties, because he had called for 75,000 troops to suppress the rebellion after Ft. Sumter was fired on. The troops had to go Baltimore. They had to change stations in Baltimore, and about the second day they were there, there was a mob, and the mob threw stones at them, the troops fired back, and it was a very, very contentious situation. And that night a number of the - the mayor and the chief of police of Baltimore got together a bunch of people and went out and blew up the railroad bridges leading into Baltimore from the North, so no more troops could come that way, and at that point Lincoln finally told Winfield Scott that he could suspend the writ of habeas corpus from Philadelphia to Washington along the rail line. He did that, and the man, Merriman, who was one of the ring leaders thought to be in to blowing up the bridges, was arrested and confined in Ft. McHenry. He sued out a writ of habeas corpus before Roger Taney sitting as a circuit judge, and that's how the Merriman case came about. DAVID GERGEN: Help us to define what the writ of habeas corpus is. WILLIAM REHNQUIST: A writ of habeas corpus is a common-law writ very essential to civil liberty that enables someone who is detained in executive custody to ask a court to order his custodian to come in and show why this person is being detained. And the court will decide then should he be set free, or should he be continued to be detained. DAVID GERGEN: And so Chief Justice Taney in this case heard that proceeding and issues a writ. WILLIAM REHNQUIST: He issued the writ because he said because there's a clause in the Constitution in Article I says the writ of habeas corpus shall not be suspended unless the public in time of war, rebellion, the public safety shall require it. And he said a placement of that clause in Article I, which gives power to Congress, meant that the president alone couldn't suspend it. He had to have an Act of Congress to do it. DAVID GERGEN: And the President then - WILLIAM REHNQUIST: The President then ignored it. Taney issued his opinion, I think, in May, and Lincoln paid no attention to it. And, of course, Taney realized he couldn't enforce it. Then so Lincoln didn't do anything until his address to a special session of Congress that he had called for in July, and it was at that point that he said, concluded his reference to it by saying that shall all the laws but one go unenforced. DAVID GERGEN: And so that was the first of a number of cases where civil liberties were suppressed. WILLIAM REHNQUIST: Yes. DAVID GERGEN: Not only in the Civil War but then in World War I and then World War II. WILLIAM REHNQUIST: Right. DAVID GERGEN: You seem to speak with some sympathy about the role of the executive here. Would you have agreed with Lincoln's view - "should all the laws but one?" WILLIAM REHNQUIST: I would have agreed with his view as to suspending the writ of habeas corpus, I think, because that seemed to be a real threat to the union. When the upper South seceded, Washington became a capital right on the frontier, right across the Potomac was Virginia, and the union simply could not afford to lose the nation's capital. So there I think you have a real situation that calls for some executive determination. On the other hand, when his postmaster general, Montgomery Blair, decided just to deny mailing privileges to all the newspapers in New York that were opposed to the war, there really was no justification. You've got to continue to have free speech and freedom of the press during the war. DAVID GERGEN: Let's turn to your view of the courts in this situation. You seem to be suggesting in the book that a court is not - you don't punch a computer button and come out with a law - that the court also has a role in the governance of the country - it has to take into account the context in which it's governing or in which it's making its ruling. WILLIAM REHNQUIST: Yes. I think you can see that, David, from comparing decisions that come down during the wartime with decisions come down after the wartime. Look at World War II. The "Kweran" case, which was decided in the summer of '42, one of the darkest times for the United States, right after Pearl Harbor, is quite hostile to civil liberties. The Japanese internment cases decided during the war are also very restrictive of civil liberty. The "Duncan" case regarding martial law in Hawaii during the war is very much individual liberty-oriented. But it comes down in 1946, a year after the war is over. DAVID GERGEN: Is that the case, then, if one is sitting on the court, that you do look at the context of your times and you do take that into account, that it inevitably plays a role in your mind as you think about what the law, what a decision should be? WILLIAM REHNQUIST: I don't know if it's a terribly conscious thing, and of course, I don't know that there's anything the equivalent of wartime. And I've never sat on the court in wartime. But it's in the back of your mind; it can help but be, that is this just the time to get into this subject, and that sort of thing, particularly with a court like ours, which has almost complete discretion as to what cases to hear. DAVID GERGEN: So it really is a matter of discretion about when something is right, not just legally but perhaps whether it's right within the system? WILLIAM REHNQUIST: That's right. It isn't just legal - legal rightness, but it's a question of, is this something we want to take up in the court now, or would it be better to take it up a year or two from now? DAVID GERGEN: I just have to ask you, in closing, you seem to have such a love of history in this book. WILLIAM REHNQUIST: I do. I have a love of history. DAVID GERGEN: That comes from? WILLIAM REHNQUIST: I don't know. Perhaps a somewhat slighted education where I didn't have a chance to take many history courses, and I've been kind of making up for it afterwards by outside reading. DAVID GERGEN: And you do this at night or during the summers when you're - WILLIAM REHNQUIST: Yes. I do a lot of the writing during the summer and some of it, you know, during the term, during times - breaks - and that sort of thing. DAVID GERGEN: Mr. Chief Justice, thank you very much for joining us. WILLIAM REHNQUIST: Well, thank you, David.