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The Limits of U.S. Governmental Power in Times of Crisis Adam M Lynchburg College Digital Showcase @ Lynchburg College Undergraduate Theses and Capstone Projects Spring 4-10-2006 The Limits of U.S. Governmental Power in Times of Crisis Adam M. Goldwater Lynchburg College Follow this and additional works at: http://digitalshowcase.lynchburg.edu/utcp Part of the American Politics Commons, Comparative Politics Commons, International Relations Commons, Models and Methods Commons, Other Political Science Commons, and the Political Theory Commons Recommended Citation Goldwater, Adam M., "The Limits of U.S. Governmental Power in Times of Crisis" (2006). Undergraduate Theses and Capstone Projects. 23. http://digitalshowcase.lynchburg.edu/utcp/23 This Thesis is brought to you for free and open access by Digital Showcase @ Lynchburg College. It has been accepted for inclusion in Undergraduate Theses and Capstone Projects by an authorized administrator of Digital Showcase @ Lynchburg College. For more information, please contact [email protected]. The Limits of U.S. Governmental Power in Times of Crisis By Adam M. Goldwater Submitted in partial fulfillment for the degree of Bachelor of Arts with Honors in Political Science April 10, 2006 Dr. Dan Lang, Supervisor Dr. Lorna Dawson, Thesis Chair Dr. Tim Meinke, Committee Member Dr. Dan Messerschmidt, Committee Member Table of Contents Page Number Abstract i An Introduction to Emergency Powers Within the United States 1 Statement of the Research Question 2 Hypothesis to be Tested 3 Definitions of Martial Law 6 Review of the Literature and Introduction of 10 Hobbes’ and Locke’s Theory Brief History of Martial Law in the United States 16 Case Study: Declaration of Martial Law by Abraham Lincoln 18 Judicial Review: Ex Parte Milligan (1866) 28 Case Study: Declaration of Martial Law in Hawaii 31 Judicial Review: Duncan v. Kahanamoku (1945) 42 The 2001 USA Patriot Act 44 The Future of the Patriot Act and Possible 50 Introduction of the Patriot Act II Conclusion and Final Analysis 52 Bibliography 58 Abstract Government’s Emergency Power Throughout the History of the United States This paper reviews the use of power by the United States government during times of crisis. This paper analyzes both the arguments from Thomas Hobbes and John Locke regarding how limited both believe government should be. Throughout this debate John Locke believes that in leaving a state of nature we must enter into civil society through a social contract with each other. Hobbes’ view of the state of nature is such that he believes that there should be virtually no limitations on the power of government in eliminating citizens from the state of nature conditions. These debates are important today in answering how much power should be given to our government in times of crisis and what protections need to be put in place to ensure government does not abuse its power. The following essay analyzes 1) President Abraham Lincoln’s use of martial law and suspension of habeas corpus during the Civil War, 2) Hawaii’s use of martial law after the attack on Pearl Harbor, and 3) 2001 Patriot Act and the future of such emergency powers within the United States. In analyzing these cases the focus remained on whether within these emergency powers the government ever: suspended the writ of habeas corpus, seized private property, set up military courts to try civilians, or advanced other restrictions of citizen’s civil rights. In evaluating these elements one can look at whether government has given back these powers when the threat subsided or has been used to extend government’s power or merely as a tool in bringing us out of the state of nature and back into civil society. The findings of this paper suggest that in each case the government gives power back to its citizens, doing such in manner that is timely and respectful of citizens’ rights/liberties. l Throughout the history of the United States there have been crises that have made the government make many tough decisions as to what its role should be in enforcing civil rule. Many times the government for security reasons, in these times of crises, has seized many powers from civil society. Some o f these powers seized are what we call liberties and were given to people when they were born (i.e. liberty, life, property), while others that we call rights, were given to us by the government (i.e. right to vote, freedom of speech). The focus is of this thesis is primarily on martial law, since it is the most obvious seizure of power by the government. These are the only two cases of martial law and they date all the way back to the times of the Civil War. The government has seized these certain powers from civil society in order to regain control of society and end the “state of nature” conditions. This has been seen even as recently as the passage of the Patriot Act in 2001 after the terrorist attacks on the United States. While this is not a case of martial law, it is a significant grab of power by the government as Congress passed the Patriot Act. In the following thesis I will investigate the role of the US government when it grabs power from civil society for security reasons and whether it gives these certain powers back to the people when the time of threat subsides. I will focus on the effects these cases have had on civil liberties, more specifically, on the erosion of certain legal rights such as the suspension of habeas corpus and the government seizure of private property. This remains an important study today as our government looks to combat modern day terrorism and has once again decided it needs to grab power from its citizens. Often, in trying to combat terrorism, governments have traditionally curtailed certain civil liberties for the sake of the protection of the country as a whole. In the following 1 study, I will focus on the United States government’s efforts in crisis situations, to determine, when the country returns to civil society, whether or not the government is trying to seize the opportunity to gain more power over its citizens. This is an extremely important study, in the sense that in a liberal democracy, certain checks and balances have been established to ensure, in times of crises or in times of peace, that the government is not abusing the power it holds over its citizens. In ensuring that this is the case, ultimately, we are ensuring that we are a democracy that lives up to the vision of Abraham Lincoln who that believed “that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth” (Basler 1953-55, 22). As you will see in the Lincoln case, the civil war would ultimately serve as a test of this principle. Research Question The question to be investigated therefore is: when the United States government seizes certain powers from its citizens (i.e. the suspension of writ of habeas corpus, ability to seize private property, and ability of military to control courts) for the sake of security will the US government give these powers back to its citizens when the time of crisis is over? These powers have an impact on both the rights and liberties of citizens and, therefore, are extremely important in understanding what the role of government should be in times of crises and more importantly on the limitations of government in modern day society. Modem day threats of terrorism pose the question every day how government should balance the protection of its citizens from terrorists versus the protection of its citizens from its own grasp of power perhaps needed to ensure domestic security. Another question will focus on whether this power grab by the government is 2 legitimate? Furthermore, can citizen’s rights always be secure within a liberal democracy, like the United States? Hypothesis To Be Tested My hypothesis is that when the government for security reasons seizes certain powers such as suspending the writ of habeas corpus, seizing private property or using military courts to try civilian cases in military courts that it will not give those powers back to its citizens when the time of crisis is over. I believe that this is due to the fact that government uses the opportunities to extend its scope of power over its citizens. Furthermore, I believe the reason for this is the fact that the government in gaining this power realizes it can utilize this power in other facets of domestic or national security, and therefore, is more reluctant to give back these powers. To test this hypothesis I will perform a case study analysis of when the United States government has seized powers for security reasons. Since martial law is the most obvious grab of power by the government I will assess the following cases of martial law: Lincoln’s informal declaration of martial law and the suspension of habeas corpus throughout the Civil War era, and martial law in World War II era of Hawaii after the attacks on Pearl Harbor. These cases represent the only major declarations of martial law made in US history. In many much smaller cases martial law was declared in small towns during the Civil War for the sake of protection against the Confederate army, however, there is little to no detailed cases of martial law from these events. Also, many modified, but unofficial forms of martial law have been used to put down many mining strikes throughout the late 19th and 20th centuries. However, as Harold Relyea points out in a 3 congressional report on government’s emergency powers, these events were sporadic and there remain almost no data specifics around each occasion (Relyea 2005, 1).
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