Abstract
Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt and Agamben in order to come to a better understanding of this important set of cases.
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Notes
Strictly speaking, Agamben can hardly be said to be a proponent of the claim that there has been a Schmittian turn to US foreign policy in the aftermath of the 9/11 terrorist attacks (even though that is a common assumption in the literature). Indeed, it is one of his crucial points in State of Exception that this Schmittian element has a history which clearly predates the focus on terrorism which dominated the first decade of the third millennium. In other words, it would be more precise to say that according to Agamben the recent anti-terrorism legislation first and foremost serves to strengthen and make apparent a tendency which has been in place for a long time.
In January 1861 Confederate troops had driven of a ship carrying reinforcements to Sumter and the day after his inauguration Lincoln received note from the commander at Fort Sumter that the existing provisions for the troops were sufficient to last at most forty days (Rehnquist 1998, p. 12). On 25 March Lincoln ordered a naval expedition to bring provisions to the Fort (Rehnquist 1998, p. 14). These provisions were still under way on 11 April when the commander of the Confederate forces in Charleston sent a note to the commander at Fort Sumter, Major Anderson, ‘demanding the surrender of Fort Sumter and offering to remove all personnel and property at the post to any other fort in the United States that they might select’ (Rehnquist 1998, p. 15). When Anderson refused, Confederate batteries opened fire on Sumter and on 14 April Anderson was forced to surrender and the outbreak of the Civil War was a fact (Rehnquist 1998, p. 15). ‘For the next 4 years, the twenty-three states of the Union and the eleven states of the Confederacy were locked in [a] brutal conflict’ (Stone 2004, p. 84). 620,000 soldiers lost their life in the Civil War, ‘dwarfing the human cost of any other American conflict’ (Stone 2004, p. 84).
Both Schlesinger and Rossiter argue that Lincoln deliberately delayed the convocation of Congress, ‘as a considered determination to crush the rebellion swiftly without the vexatious presence of an unpredictable Congress to confuse the narrow issue’ (Rossiter 2002 (1948), p. 225) and took action unilaterally, ‘lest constitutionalists on the Hill try to stop him from doing what he deemed necessary to save the life of the nation’ (Schlesinger 2004 (1973), p. 58).
‘Prize’ is a legal term that refers to a ‘vessel or cargo captured at sea or seized in port by the forces of a nation at war, and therefore liable to being condemned or appropriated as enemy property’ (Black’s Law Dictionary).
A ‘letter of marque’ is a ‘license authorizing a private citizen to engage in reprisals against citizens or vessels of another nation’ (Black’s Law Dictionary). In other words, the Confederate Government was encouraging its supporters to take up privateering.
Act Aug. 6, 1861, ch. 63, sec. 3; and Act March 25, 1862, ch. 50.
The Amy Warwick, the Crenshaw, the Hiawatha, and the Brilliante (Prize, p. 637). The ships had been captured and brought in as prizes by public ships of the United States (Prize, p. 636). The owner of Amy Warwick and the owners of the goods she was carrying were all residents of Virginia, which was one of the Confederate states; that was also the case of the Crenshaw. The Hiawatha was a British vessel and the cargo belonged to British subjects. The Brilliante and the cargo she was carrying belonged to Mexican citizens. Idem.
The details pertaining to the capture and ownership of each particular vessel on the other hand are not relevant to the theoretical problem of emergency.
Lincoln actually argued both that exceptions to law may be legitimate, but also that they would be constitutional since the failure to act would contradict the presidential oath. See Lincoln’s address to Congress, 4 July 1861.
The translation by G L Ulmen is lacking at this point, as he translates ‘Ortung’ into ‘orientation’. Thereby the crucial point that ‘Ortung’ describes an active form of making place easily gets lost, because ‘orientation’ can very well be understood as something one is in possession of or lacking. In other words as something, which follows as a consequence of an original ‘Ortung’, but which does not exactly describe the ‘Ortung’ itself.
Indeed, that was the opinion of Nelson and several of the other dissidents. Before the war finally broke out he expressed strong belief that a peaceful approach would be the prudent course of action if the Union were to be saved. He was joined by Justice Campbell, who also dissented in Prize, in arguing that ‘an inflexible adherence to a policy of moderation and of peace would inevitably lead to the restoration of the Union in all of its integrity; that there was an imperative obligation upon the part of the Government to display moderation and an indulgent ‘spirit of endurance’ to prevent the spread of secession and ‘recompose the Union’ (Crawford 1887, p. 326). Given these opinions of the dissenting Justices it is hard not to see some element of politicizing of the Court in their opinions. The discussion regarding such politicizing of the Supreme Court is beyond our current focus however. We point to these opinions merely to show how it was possible to opine against the decision to act with the use of force before that decision was made. Before the outbreak of the war there was a vigorous debate on this issue. Justice Nelson was not alone to hold this opinion (McLaughlin 2001, p. 597 ff). In that regard it is striking that the dissenting voices did not argue that Lincoln’s decision was wrong, even though they seemed to have thought so before the war. Instead, the argument of Nelson was exactly directed at the dangerous precedence he thought the Court would be setting.
In this sense he seeks a genuinely positive concept of the messianic which aims at a profanation of the Law, which should be the only adequate answer to the problems posed by the consequences Agamben sees in Schmitt’s doctrine of sovereignty. The explication of this notion of profanation would be beyond the scope of the present discussion, but the reader can find a very rich discussion of it in a recent article by Mika Ojakangas (see Ojakangas 2009).
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US Supreme Court cases referred to
Hamdi v. Rumsfeld. 2004. 124 S.Ct. 2633, U.S.
Rasul v. Bush. 2004.124 S.Ct. 2686, U.S.
Rumsfeld v. Padilla. 2004. 124 S.Ct. 2711, U.S.
Hamdan v. Rumsfeld. 2006. 126 S.Ct. 2749, U.S.
Boumediene v. Bush. 2008. 128 S.Ct. 2229, U.S.
Prize Cases, The Amy Warwick. 1862. 67 U.S. 635.
Acknowledgments
We are grateful for helpful comments on draft versions of the article from the anonymous reviewer for Law and Critique, Professor Joseph Weiler (New York University School of Law), Professor David Golove (New York University School of Law), Professor Stavros Tsakyrakis (Athens University, Faculty of Law), Associate Professor Mikkel Thorup (Aarhus University, Department of Philosophy and History of Ideas) and Assistant Professor Christopher David Jenkins (Copenhagen University, Faculty of Law).
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Hartz, E., Ugilt, R. The Problem of Emergency in the American Supreme Court. Law Critique 22, 295–316 (2011). https://doi.org/10.1007/s10978-011-9090-5
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DOI: https://doi.org/10.1007/s10978-011-9090-5