The Wilmington morning star. [volume] (Wilmington, N.C.) 1909-1990, 1946-03-03
Constitution Reasserted
By ARTHUR KROCK

BY ARTHUR AhOCA
WASHINGTON, March 2.-It may come to
pass as Justice Burton in his dissent sug-
gested, that the decision Of the Supreme Court
this week in the cases Of Hawaiian citizens,
who were tried and convicted by wartime
military tribunals has set 'precedents which
in other emergencies may handicap the ex-
ecutive branch Of the government" defending
the nation. But believers in the democratic
doctrine that the civil power must be pre-
served from any usurpaticn by the military
will surely hold that contrary decision would
have set a far more perilous precedent
Justice Black, who wrote the majority
opinion, described the issue as whether civil
courts. established to protect the rights of
citizens under the Constitution, and able to
function, shall be supplanted by military tri-
bunals in wartime or any other, for the trial
of civil offenses by American citizens on
American soil Certain residents Of Hawaii
had been tried and sentenced by the military
in these circumstances. And in three written
opinions-by Justices Black and Murphy and
the Chief Justice-the Supreme Court held
this to be unconstitutional
The reasoning and language, both OF the
majority and Of Justices Burton and Frank
furter, the dissenters were vigorous enough
to have made the case historic If its I'M
portance had been less. But as marker on
the long road on which Anglo-Saxon democra-
cy overthrow and has kept subordinate the
exercise Of summary, including military pow
er over the civil conduct OF CITIZENS It's I'M
portance is very great indeed
What was involved, wrote Justice Black,
were 1.-THE rights OF individuals charged with
crime (embezzlement and fst-fighting to
nave their guilt or innocence determined in
courts OF law which provide established pro-
cedural safeguards rather than by military
vrrnir oh, fail b. 81 taca
safeguards" The offenses were committed at
Honolulu in August, 1872 and February, 1914,
months and years respectively after the Japa-
nese attack on Pearl Harbor But from Dec.
T. 1871, forward, with the approval of the
President the Commanding General in Ha-
waii had proclaimed a state of martial law,
and under it he took over the government
of the islands including the courts
The District Court of Hawaii, steadily deny.
do this, held the trials and sentences void
and ordered the release Of the prisoners. This
was reversed by the Federal Court of APP
peals, which in turn was reversed by the
Supreme Court and the original tribunal
was upheld.
The government, supporting the military,
commended that Section 81 Of the Organic Act
of Congress that established the Territory full
ly authorized what was done. This section
sion, the Governor may proclaim martial
laws whenever the public safety requires 1t.
The defendants pleaded that martial law
did not invest the military with power to try
and sentence them for the offenses stated,
and that, If Section 81 carried the inference
this could be done, 1t was itself unconsti-
tutional
Justice Black began by noting these things:
Conditions in the islands at the time Of the
frio1 lie ,oH oo+ fbo - ri
VILLAINS or even Of areas where the civil courts
do business. Hawaii was not enemy territory
and was loyal No interference with the en-
forcement of orders in military program
was involved. The term martial law is not
mentioned in the Constitution and Congress
has never defined 1t. Thus Section 81 fails
to measure the scope of military power in
Hawaii and we must examine our legislative
and political history, as well as the Consti-
tuition, to decide how far martial law may
supersede the civil process.
This history discloses that military trials
of civilians charged with crime, especially
when not made subject to judicial review,
are obviously contrary to our political
courts Of law" In the Organic Law Congress
traditions and our institution Of jury trials in
also put Section 5, which provides that 'the
Constitution shall have the same force
and effect within the same Territory as else
Wlere In the Un1CeQ StateS. 1t follows that
the Constitutional guarantee of fair trial
covers citizens of Hawaii as thoroughly as it
does Americans elsewhere in the nation. r
they could be hauled into military courts for
civil offenses fheir own courts being open)
because OF state Of war or threatened in
vasion, then SO could citizens in California or
New York.
In the only discussion of the issue by the
Supreme Court prior to the passage of the
Organic Act 1t was held Tin parte Milligan)
that civil liberty and this kind of martial
law cannot endure together; the antagonism
is irreconcilable; and in the conflict one or
the other must perish Congress, in writing
the Organic Act, never intended that civil
liberty should be the victim anywhere on
American soil, including Hawaii. Thus Justice
Black.
The Chief Justice held that since in the
conditions that prevailed the public safety
would not have been endangered by civil
trials, Section 81 did not authorize the in
depreciation which was made of the scope of
martial law and therefore the trials were
illegal. Justice Murphy saw no legality in
what was done because Of the absence of
any corresponding factor" of danger to the
public safety that. by any construction Of any
law, could have justified even temporary sus-
pension Of the Bill Of Rights.-New York
Times.
N,,' TII:1~ A~