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(For Frank ‘Austin’ England III) 

 (Blog Master’s Note:  I did my best filling in links to the cases, when I didn’t find the link I noted where the case was.  The Schooner Charming Betsey became a doctrine, this is a case it lead to, not the case. Murray v. The Schooner Charming Betsey



(More on War Powers)

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)

[This is the famous “one-man, one-vote” case (208-210) representative form of government; legislative redistricting within a state; political questions]

[369 U.S. 186, 224]Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed “A republican State, in every political, legal, constitutional, and juridical sense,” and that enforcement of the new Acts “Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, . . . is destroying that very government by force.” Congress had clearly refused to[369 U.S. 186, 225] recognize the republican character of the government of the suing State.It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress’ action at the behest of a claimant relying on that very guaranty.

[369 U.S.186, 216] Compare Georgia v. Stanton, 6 Wall. 50, 77. The Chief Justice made clear that if the issue of the Cherokees’ rights arose in a customary legal context, “a proper case with proper parties,” it would be justiciable. Thus, when the same dispute produced a case properly brought, in which the right asserted was one of protection under federal treaties and laws from conflicting state law, and the relief sought was the voiding of a conviction under that state law, the Court did void the conviction. Worchester v. Georgia, 6 Pet. 515. There, the fact that the tribe was a separate polity served as a datum contributing to the result, and despite the consequences in a heated federal-state controversy and the opposition of the other branches of the National Government, the judicial power acted to reverse the State Supreme Court. An example of similar isolation of a political question in the decision of a case is Luther v. Borden,
7 How. 1, see infra.

(3) Georgia v. Stanton, 6 Wall. 50, involved the application of the Reconstruction Acts to Georgia – laws which destroyed by force the internal regime of that State. Yet the Court refused to take jurisdiction. That question was no more “political” than a host of others we have entertained. See, e. g., Pennsylvania v. West Virginia, 262 U.S. 553; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579; Alabama v. Texas, 347 U.S. 272. [369 U.S. 186, 247] Today would this Court hold nonjusticiable or “political” a suit to enjoin a Governor who, like Fidel Castro, takes everything into his own hands and suspends all election laws? Georgia v. Stanton, supra, expresses a philosophy at war with Ex Parte Milligan,  4 Wall. 2, and Duncan v. Kahanamoku , 327 U.S. 304.The dominance of the civilian authority has been expressed from the beginning. See Wise v. Withers, 7 U.S. (3 Cranch) 331, 337; Sterling v. Constantin,
supra, 287 U.S. 378.

[369 U.S. 186, 223] The First Reconstruction Act opened: “Whereas no legal State governments . . . now exists [sic] in the rebel States of . . . Georgia [and] Mississippi . . .; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: . . .” 14 Stat. 428. And see 15 Stat. 2, 14.

Georgia v. Stanton, 6 Wall. 50, 73 U.S. 50 (1868) (The state of Georgia brought suit against the Secretary of War and two of his generals in an effort to prevent the enforcement of the Reconstruction Acts following the Civil War. The case arose under the Court’s original jurisdiction. …  Question Presented: Do the military laws invoked under the Reconstruction Acts unconstitutionally deprive Georgia of its sovereignty?  … A State is “a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others.

It is an artificial person. It has its affairs and its interests. It has its rules. It has its rights. A republican State, in every political, legal, constitutional, and juridical sense, as well under the law of nations, as the laws and usages of the mother country, is composed of those persons who, according to its existing constitution or fundamental law, are the constitutent body. All other persons within its territory, or socially belonging to its people, as a human society, are subject to its laws, and may justly claim its protection; but they are not, in contemplation of law, any portion of the body politic known and recognized as the State. On principle it must be quite clear that the body politic is composed of those who by the fundamental law are the source of all political power, or official or governmental authority. … Conclusion: Nelson maintained that this was a “political” question and thus out-of-bounds for judicial inquiry. Georgia sought rights of a political character, not rights of persons or property. Thus the issue was outside the domain of a law or equity court. … [ Baker v. Carr, 369 U.S. 186, 204 (1962) Fn. (3) (Georgia v. Stanton, 6 Wall. 50, involved the application of the Reconstruction Acts to Georgia – laws which destroyed by force the internal regime of that State. Yet the Court refused to take jurisdiction. That question was no more “political” than a host of others we have entertained. See, e. g., Pennsylvania v. West Virginia, 262 U.S. 553; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579; Alabama v. Texas, 347 U.S. 272.[369 U.S. 186, 247]

Duncan v. Kahanamoku, 327 U.S. 304 (1946) (The petitioners in these cases were sentenced to prison by military tribunals in Hawaii. Both are civilians. The question before us is whether the military tribunals had power to do this. The United States District Court for Hawaii in habeas corpus proceedings held that the military tribunals had no such power and ordered that they be set free. The Circuit Court of Appeals reversed, and ordered that the petitioners be returned to prison. 9 Cir., 146 F.2d 576. Both cases thus involve the rights of individuals charged with crime and not connected with the armed forces to have their guilt or innocence determined in courts of law which provide established procedural safeguards, rather than by military tribunals which fail to afford many of these safeguards. Since these judicial safeguards are prized privileges of our system of government we granted certiorari. 324 U.S. 833, 65 S.Ct. 677.);

Ex parte Milligan,4 Wall. 2, 18 L.Ed. 281 (1866) (Civilians can not be tried in military courts, even in time of war, if the civil courts are open for business [Cf. habeas corpus / military commissions [Indianapolis Treason Trials; Wise v. Withers, 3 Cranch 331, 7 U.S. 331 (1806). … This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it always will have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. … For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proven were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus. There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war, another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [p*142] as belligerents, and a third to be exercised in time of invasion or insurrection within the limits of the United States or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and, in the case of justifying or excusing peril, by the President in times of insurrection or invasion or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights. The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with its shield of protection all classes of men, at all times and under all circumstances.

No doctrine involving more pernicious consequences was ever invented by the wit of men that any of its great provisions can be suspended during any of the great exigencies of Government.); [Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946); Flag; Inter arma silent lege]

Wise v. Withers,7 U.S. (3 Cranch) 331 (1806) (Sentence of a court martial in a case clearly without its jurisdiction will not protect the officer who executes it.) [Aff’d. Erskine v. Hohnbach, 81 U.S. 745 (1872); ex parte Milligan; Inter arma silent lege]

Erskine v. Hohnbach, 81 U.S. (14 Wall.) 613, 745, 20 L.Ed. 745 (1872) (Government argued “The remedy of the taxpayer is to pay his tax under protest and bring an action of assumpsit to recover it back” [City of Phila. v. Collector 72 U.S. (5 Wall.)720]; Held: Where a ministerial officer, acting in good faith, does an injury, he is only liable for the actual loss (745) [Tracy; Pierce v. Strickland; Murray v. The Schooner Charming Betsey, 6 U.S. (2 Cranch)64] … An officer is not protected by an order or process void for want of jurisdiction in the court or judge issuing it [Duncan v. Darst; Leadbetter; Thurston] … Officer is liable for his mistakes in taking property [Buck] … Inferior officer cannot justify act he knows or should know to be illegal by orders from superior [ Mitchell v. Harmony,  54 U.S. (13 How.) 115; U.S. v. Jones] … An appeal to the C.I.R., from an assessment, is only a condition precedent to an action for the recovery of taxes paid. It is not a condition precedent to any other action where such action is permissible (at 747);