In time of war, rights guaranteed by the Constitution

For sixty years Ex parte Milligan, 4 Wall. 2, 120, 125 (18 L. Ed. 281 ), has been regarded as a splendid exemplification of the protection which this court must extend in time of war to rights guaranteed by the Constitution, and also as decisive of its power to ascertain whether actual military necessity justifies interference with such rights.

The doctrines then clearly-I may add, courageously-announced, conflict with the novel and hurtful theory now promulgated. A few pertinent quotations from the opinion will accentuate the gravity of the present ruling:

'Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided.

Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law.

The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its 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 man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. ...

'This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always 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.

If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen.

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 proved 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.

Moreover, well settled rights of the individual in harmless property and powers carefully reserved to the states, ought not to be abridged or destroyed by mere argumentation based upon supposed analogies. The Constitution should be interpreted in view of the spirit which pervades it and always with a steadfast purpose to give complete effect to every part according to the true intendment-none should suffer emasculation by any strained or unnatural construction. And these solemn words we may neither forget nor ignore:

'Nor shall any person ... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.'

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.'

"You boyos got time to defend beer prohibition one more time?"

Yes, but not from the dissenting judge. "Since Congress has power to increase war efficiency by prohibiting the liquor traffic, no reason appears why it should be denied the power to make its prohibition effective". --Mr. Justice NRANDEIS delivered the opinion of the Court.

Why does an opinion finding a silly right to 'ban beer' in wartime support your "contention that Congress did not need the 18th amendment to prohibit alcohol"? - The two have little or no correalation, save that of the concept of 'banning' something, the idiocy of which is well demolished by the dissent opinion.

bvw, you were looking for a USSC ruling which affirmed the constitutionality of The Lever Food and Fuel Control Act and The War Prohibition Act. Here you go.

The "War Powers" of congress are a given. It was also a given that rational 'legislators' would use them, not abuse them, as in this instance. Sad commetary that you 'warriors' are reduced to using such lame examples to find 'penumbras' for your prohibitionary agenda.

"of which is well demolished by the dissent opinion"

The "dissent opinion" was the losing opinion. The Act banning alcohol was upheld by the USSC.

Of couse it was. Did you even read the whole thing? I'd bet not. - The link is right above, and the dissent makes the majority opinion look stupid.

I didn't hear you making exception for War Powers before, tpaine. All I heard from you, ad nauseum, was that the 18th amendment gave Congress the power to ban alcohol. Now you're tempering your rantings somewhat.

You 'hear' the damndest things, - that have absolutely no basis in reality. Apparently you believe no one can remember what is said from thread to thread. Weird person.

Also, WWI ended November, 1918. The War Prohibition Act passed Congress in November, 1918. Can you explain your War Powers theory again?

Read the link to the case, and your confusion will clarify itself, - or, - maybe not. But, in any case, I am unable to help, due to a lack of sympathy. - Sorry.

My prior contention -- that the short-life laws you refer to aren't tested, still holds. I no big history buff on that era and prohibition either. But I was just touring around on the internet and noted three gems.

(One) That in the 1915 Congressional elections, the Anti-Saloon League swept in their candidates, so that there was a great legislative pressure to "do something."

(Two) Three that one of the key reasons the Anti-Saloon League was so potent was due to hatred of the Germans, the war-time enemy. Germans were closely associated with the Beer Trade.

(Three) the Cato Institute put the following apt poem up:

Prohibition is an awful flop.
We like it.
It can't stop what it's meant to stop.
We like it.
It's left a trail of graft and slime,
It don't prohibit worth a dime,
It's filled our land with vice and crime.
Nevertheless, we're for it.
—Franklin P. Adams (1931)

And there's a nugget of GOLD with those two gems ... the Cato Institute's study continues:

History of Prohibition
If the value of drug prohibition is not self-evident,one might ask why it was put into effect in the first place.Drugs in one form or another were in effect legal for thousands of years before the Harrison Act of 1914, but the period of greatest availability in the United States was the 19th century. For most of the century, opium, morphine, and cocaine were legally and cheaply available without a prescription at drugstores and grocery stores and through the mail.[8] And yet, far from being marked by drug-crazed criminals and drug-paralyzed workers, that period was a time of unprecedented economic growth and productivity.
Regarding the impact of pre-prohibition drug use in theUnited States:
There was very little popular support for a law banning [narcotics]. "Powerful organizations for the suppression of alcoholic stimulants exist throughout the land" [citation omitted], but there were no similar anti-opiate organizations. The reason for this lack of demand for opiate prohibition is simple: the drugs were not viewed as a menace to society and . . . they were not in fact a menace.[9]
The situation in l9th-century England was remarkably similar:

Consumption under conditions of free supply in effect plateaued out. . . . Incapacity from use of opium was not seen as a problem of such frequency and severity as to be a leading cause for social anxiety.The prime image of the opium user was dissimilar to that of the wastrel and disruptive drunkard. Opium users were not lying about in the streets, or filling the workhouses, or beating their wives. It seems fair to conclude that at the saturation level which the plateau represented, opium was not a vastly malign or problematic drug in terms of its impact on social functioning.[10]

If there was no catastrophic drug problem before prohibition, why then was the Harrison Act enacted? In 1926, after11 years of narcotics prohibition, an editorial in the Illinois Medical Journal stated:

The Harrison Narcotic law should never have been placed upon the statute books of the United States. It is to be granted that the well-meaning blunderers who put it there had in mind only the idea of making it impossible for addicts to secure their supply of "dope" and to prevent unprincipled people from making fortunes, and fattening themselves upon the infirmities of their fellow men. As is the case with most prohibitive laws, however, this one fell far short of the mark.So far, in fact, that instead of stopping the traffic, those who deal in dope now make double their money from the poor unfortunates upon whom they prey. . . .The doctor who needs narcotics, used in reason to cure and allay human misery, finds himself in a pit of trouble. The lawbreaker is in fact in clover. .. . It is costing the United States more to support bootleggers of both narcotics and alcoholics than there is good coming from the farcical laws now on the statute books.As to the Harrison Narcotic law . . . people are beginning to ask, "Who did that, anyway?"[11]

The most important "who" was Secretary of State William Jennings Bryan:
A man of deep prohibitionist and missionary convictions and sympathies, he urged that the law be promptly passed to fulfill United States obligations under the new international [drug control] treaty. The supporters of the Harrison bill . . . said little about the evils of narcotics addiction in the United States. They talked more about the need to implement the Hague Convention of 1912. . . .Far from appearing to be a prohibition law, the Harrison Narcotics Act on its face was merely a law for the orderly marketing of opium, morphine, heroin, and other drugs--in small quantities over the counter, and in larger quantities on a physician's prescription. . . . It is unlikely that a single legislator realized in 1914 that the law Congress was passing would later be deemed [by the courts] a prohibition law.[12]
Two other reasons for the passage of the Harrison Act were the association of opium and its derivatives with the scorned minority of Chinese Americans,[13] and the lobbying of physicians and pharmacists eager to gain a legal monopoly over distribution of the prescribed drugs.[14]
As for marijuana, when it was banned in 1937, no medical testimony was presented to Congress.[15] Drug prohibition was thus not based upon even a semblance of analysis and research.

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