US chief justice signals support for White House assault on constitutional rights

William Rehnquist, chief justice of the United States, on June 15 gave a speech before a gathering of federal judges in which he condoned the suppression of democratic rights in wartime.

Rehnquist told a national judicial conference in Virginia, “One is reminded of the latin maxim, inter arma silent leges. In times of war, the laws are silent.”

The Supreme Court justice said he was offering “only a historical perspective,” but his choice of topic and what he had to say about it were obviously intended to bolster the Bush administration’s attack on constitutional guarantees of free speech, assembly, privacy and due process, which is being carried out under the cover of the government’s “war on terrorism.”

Rehnquist’s speech elaborated on themes developed in his 1998 book All Laws But One: Civil Liberties in Wartime. The title refers to President Abraham Lincoln’s 1861 speech to Congress justifying his suspension of habeas corpus, a legal procedure for a person in custody to obtain court review of the detention. Rehnquist’s seizing on this historical precedent to justify the current attacks on civil rights turns history upside down.

Article 1, Section 9 of the US Constitution provides that “the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” After the Confederate states seceded and commenced an armed insurrection with an attack on Fort Sumter, Lincoln suspended the writ along the Philadelphia-Washington railroad line in response the efforts by Baltimore public officials to bomb the railroad so that federal troops could not arrive to defend the US capital.

The federal judiciary was replete with judges sympathetic to the slave owners, including Chief Justice Roger Taney, infamous for his majority opinion in Dred Scott v. Sanford, which upheld the right of owners to travel throughout the United States with their slaves, and denied that persons of “Negro” descent could be citizens of the United States with standing to bring suit for their own freedom. The effect of the Dred Scott ruling was to overturn all Congressional actions limiting the extension of slavery into the territories, and, arguably, to legitimize the institution in the “free states” as well.