Vol. 24 No. 9 (September 2014) pp. 493-495
by Arthur A. Garrison. Boulder, CO: Lexington Books, 2011; 2013. 500pp. Hardback $130.00. ISBN: 978-0-7391-5102-0. Paper $48.99. ISBN: 978-0-7391-5103-7.
Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: email@example.com
Arthur A. Garrison’s SUPREME COURT JURISPRUDENCE IN TIMES OF NATIONAL CRISIS, TERRORISM, AND WAR is an excellent discussion of the role that the Supreme Court has, does and should play in this important policy space. Garrison begins with the thesis that “in times of war and national crises the judiciary maintains the Constitutional boundaries on Presidential power” (p. xii).
Despite its title the book is much more than a retrospective look at Supreme Court jurisprudence. Garrison begins with an excellent in-depth discussion of the debate between Framers James Madison and Alexander Hamilton, with a pinch of Thomas Jefferson, regarding power dispersion in the Constitution. Using the debate between the framers to frame the discussion, by the end of the first chapter Garrison has established that “Congressional acquiescence or complicity with Presidential use of military force and deployment without Congressional approval has established a history that has placed in the power of the President, as Commander-in-Chief, the ability to use military force as he determines the need with or without the strict need to gain Congressional approval” (p. 36).
In chapter two, the Supreme Court’s role in national security is firmly in focus. The emphasis here is on the historical basis of Supreme Court jurisprudence, and includes cases decided in the wake of the Constitutional ratification to post-Civil War cases. Again, the discussion is deep, rich and informative, with Garrison dissecting case after case, and, importantly, opinion after opinion. One of the strengths of the book, beginning in this chapter, is that Garrison does not merely focus on the opinion of the Court, but also includes treatment of the dissents and concurrences of important cases.
In chapters three and four Garrison outlines cases the Court heard regarding communism and national security during World War I and World War II including a fair amount of discussion of the impact of the cases on free speech issues. One of the key topics discussed within these chapters is a rather extended treatment of citizenship questions, especially regarding the rights of naturalized citizens, during World War II. Garrison notes that the Supreme Court, in BAUMGARTNER v. UNITED STATES (1944), upheld the rights of a naturalized citizen from Germany who aligned with Adolph Hitler. According to Justice Felix Frankfurter, “American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation” (p. 151). Similarly, Justice William Douglas, in KNAUER v. UNITED STATES (1946), entrenched the idea that “Citizenship obtained through naturalization is not a second class citizenship” (ibid.).
In the next two chapters, Garrison offers two “case studies” regarding the powers of the president, and the judiciary’s role in establishing those powers. These chapters, which encompass the Roosevelt and Truman administrations, are excellent, interesting and informative. The Roosevelt chapter focuses on the legal questions surrounding the detention of Japanese Americans during World War II. One of the highlights of this chapter is the inclusion of decisions in lower federal courts about the powers of the president and the rights of these citizens. What Garrison establishes with this discussion is that well before cases like [*494] KOREMATSU v. UNITED STATES (1944) reach the Supreme Court, decision after decision in district courts sided with the government. According to Garrison, “West Coast courts provided support for the curfew and exclusion policies throughout the war and even after its conclusion” (p. 207).
Garrison also notes the impact of Supreme Court decisions on lower courts in the wake of HIRABAYASHI V. UNITED STATES (1943). And in this instance, the district judges were distinguishing precedent, saying that the cases that came before them such as SCHUELLER V. DRUM (1943), EBEL V. DRUM (1943) and SCHERZBERG V. MADEIRA (1944), were fundamentally different as there was no clear imminent threat. In SCHUELLER, for example, the court ruled “where there is a direct interference as here with one’s liberty and property, conduct normally beyond the scope of governmental power, such action could only be justified… when the danger to the government is real, impending and imminent” (p. 214, my emphasis).
The heart of the book is found in its second half, the focus of which is on the post-September 11 Supreme Court War on Terror jurisprudence. Early in this section, Garrison sets the stage with a detailed look at the legal justifications offered by various presidential administrations in determining the legal capacity of the president to engage in war in Vietnam, react to hostage taking in the U.S. embassy in Iran and events that could lead to deployment of troops without congressional approval. To offer a summary of the positions taken by executive branch attorneys, in 1986 the Office of Legal Counsel took the position that “any statute infringing upon the President’s inherent authority to conduct foreign policy would be unconstitutional and void” (p. 274). And all of these legal positions served as bases for the George W. Bush administration’s claim of inherent presidential authorities when entering and engaging in the war on terror. Indeed, Garrison argues that the Bush team of (legal) advisors continued to maintain a position that previous presidential administrations had established as the norm. “It is a historical and political reality that although Congress has had a role in the implementation of policies to protect America throughout history, it has been the President who has had the plenary position in the determination of initial military action” (p. 289).
After reviewing the historical trends, Garrison embarks upon a thorough discussion of the “enemy combatant” cases decided by the Supreme Court. In the course of two chapters, all four enemy combatant cases, including the opinions of the Court and accompanying concurrences and dissents are discussed, parsed and excerpted. Garrison’s main conclusions are hinted at in his original thesis, “in times of war and national crises the judiciary maintains the Constitutional boundaries on Presidential power” (p. xii). He notes, for example, that in HAMDI V. RUMSFELD (2004), “the Court made clear that the tool of detaining an American citizen as an enemy combatant was limited by the Constitutional boundary of due process requirements that the citizen be provided a neutral forum to contradict the facts underlying the classification” (p. 304).
In short, Garrison concludes that the Supreme Court has a key role in establishing the powers of the elected branches. Perhaps more importantly, he also concludes that the Court has a key role in determining the outer limits of those powers, even—or especially—in times of war and crisis. Indeed, “[u]nder the U.S. Constitution, the rule of law, the muse of justice, finds her voice in Hamilton’s least dangerous branch” (p. 442).
Despite the high quality of this book there are some minor concerns. I should note up front, though, that these concerns do not diminish the overall quality of this book. The biggest concern is that the book is too long, especially in chapters eight and nine. Professor Garrison includes within these chapters extended discussion of Court opinions, and excerpts from them at length, using the excerpts to support his arguments in each chapter, and he does this skillfully. But he also includes extended excerpts [*495] from these cases in chapter appendices. In my view this is unnecessary both because of the strength of the chapters and because in the information age the opinions are but a few keystrokes away from the reader.
In short, Garrison’s book offers an excellent discussion of the political, philosophical, historical and legal underpinnings of presidential war powers. The book is mistitled, as it suggests limits that do not exist to the breadth and depth of the scope offered within its pages. This is a detailed, important treatment of the players in a key policy space. I recommend this book highly.
BAUMGARTNER v. UNITED STATES, 322 U.S. 665 (1944).
EBEL V. DRUM, 52 F. Supp. 189 (D. Mass. 1943).
HAMDI V. RUMSFELD, 542 U.S. 507 (2004).
HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943).
KNAUER v. UNITED STATES, 328 U.S. 654 (1946).
KOREMATSU v. UNITED STATES, 322 U.S. 214 (1944).
SCHERZBERG V. MADEIRA, 57 F. Supp. 43 (E. D. Pa. 1944).
SCHUELLER V. DRUM, 51 F. Supp. 383 (E. D. Pa. 1943).
© Copyright 2014 by the author, Tobias T. Gibson.