Wartime Legislation

The U.S. government has historically passed legislation and issued executive orders designed to protect national security in wartime. Such wartime legislation often restricts civil liberties in a manner not justified during peacetime. During times of war, however, the government’s rationale for these restrictions is the need to protect national interests in a time of crisis. Consequently, wartime legislation is frequently challenged in the judicial system. The courts have ordinarily taken one of three courses of action: upheld the legislation as justified in light of the national security crisis, thereby outweighing the restriction on individual liberties; struck down the legislation as unduly restrictive; or completely deferred to the judgment of the legislative and executive branches.

An early example is the Sedition Act of 1798, enacted pursuant to an impending war with France. The Sedition Act threatened imprisonment for those opposing or criticizing the president or Congress. Although the Supreme Court never ruled on the constitutionality of the Sedition Act, it is generally recognized that the act was an unconstitutional restriction on freedom of speech. In contrast, the Supreme Court upheld Executive Order 9066 in Korematsu v. United States, a case challenging Japanese internment in World War II. Despite overwhelming restrictions on liberty, the Court found the order justified due to potential security threats from Japanese Americans (although this decision has been widely criticized). Generally speaking, however, such restrictions on civil liberties are justified only in the face of an actual, imminent threat to national security.

ANN B. CHING

References and Further Reading

• Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: Knopf, 1998.
• Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton and Co., 2004.

Cases and Statutes Cited

• Korematsu v. United States, 323 U.S. 214 (1944)
• Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal. 1984)
• Sedition Act of July 14, 1798, ch. 74, 1 Stat. 596

See also Alien and Sedition Acts (1798); Communist Party; Freedom of Associations; Guanta´namo Bay, Enemy Combatants, Post 9/11; Indefinite Detention; Jackson, Robert H.; Japanese Internment Cases; McCarran-Walton Act of 1952; Military Tribunals; National Security; National Security and Freedom of Speech; 9/11 and the War on Terrorism; Seditious Libel; World War I, Civil Liberties in; World War II, Civil Liberties in