Theย first,ย second,ย third, fourth and fifth installmentsย in this series traced how the Supreme Court responded to President Franklin D. Rooseveltโs efforts to break constitutional limits and create a powerful federal government. After trying to balance the demands of FDRโs โNew Dealโ with the Constitution, the court successively abandoned the Constitutionโs limits on federal spending, federal land ownership, and federal economic regulation.
This installment and the next discuss how the court acquiesced in the suppression of civil liberties.
1937โ1944: The Court Attacks Civil Liberties
Most of the Constitutionโs framers considered the documentโs principal protection for liberty to be its limits on the federal governmentโs enumerated powers. The framers did, however, add some specific protections. And after the Constitution was ratified, Congress and the states added the Bill of Rights.
Even so, the Constitutionโs protections for civil liberty are not complete. For example, most modern Americans would be surprised to learn that the First Amendmentโs guarantee of โthe freedom of speechโย did notย protect against prosecutions for blasphemy. Still, the best way to guard constitutional rights is to enforce them according to their real meaningโthat is, as they were understood when adopted. Judges who purport to widen constitutional rights will narrow them as well.
This actually happened during the years from 1938 to 1944. First, the court announced it would favor some rights over others. Then it suppressed rights it supposedly favored.
1937โ1938: Some Rights are More Equal than Others
The Constitution contains two guarantees of โdue process of law,โ one in the Fifth Amendment protecting against federal abuses and one in the Fourteenth Amendment protecting against state abuses. As originally understood, these Due Process Clauses meant only this: When the government prosecutes you criminally or civilly, it must follow pre-established law. It may not change the rules as it goes along.
During the later 20th century, liberal activist judges stretched the Due Process Clauses to protect invented โrightsโ such as abortion. During the early 20th century, conservative activist justices did something comparable. In the name of freedom of contract, they struck down some minimum-wage and maximum-hours laws, claiming those measures violated Due Process.
In early 1937, however, a five-justice majority effectively overruled the conservative Due Process precedents. The case was West Coast Hotel Co. v. Parrish (pdf).
West Coastย is famous because historians used to believe that FDRโs court-packing plan had bullied Justice Owen Roberts into voting with the courtโs liberals in that case. This was the alleged โswitch in time that saved nine.โ We now knowย thatโs not true. Robertsโ vote had been determined before the court-packing plan was announced.
The following year, United States v. Carolene Products (pdf) essentially confirmed theย Parrishย decision.ย Carolene Productsย is famous as well. When Chief Justice Harlan Fiske Stone wrote the opinion for the court, he added a celebrated footnote known to lawyers as โFootnote 4.โ
Footnote 4 said it was โunnecessary to consider nowโ whether the court should start favoring some constitutional rights over others. This communicated to court-watchers that the justices would start doing just that.
Liberal commentators celebrate Footnote 4 because it offered super-protection for rights liberals like (such as the procedural guarantees enjoyed by accused criminals) and a downgrade of rights liberals do not favor (such as protection for contracts). But in the immediate aftermath of Footnote 4, the court downgraded both categories.
1939: The Court Guts the Second Amendment
The first right diminished was the Second Amendment right to keep and bear arms. United States v. Miller (pdf), an 8โ0 decision, was issued on May 15, 1939. The author of the courtโs opinion was James McReynolds. His opinion improperly narrowed the right to keep and bear armsโjust as his prior opinions had improperly expanded the Due Process guarantee
Jack Miller and Frank Layton were convicted of possessing a sawed-off shotgun not registered under federal law. The Second Amendment was their defense: โA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.โ The court recognized that, in this context, โmilitiaโ refers to all able-bodied males.
Construed correctly, the Second Amendment protects the use and ownership of portable (โbear-ableโ) weapons used for three purposes: (1) To prepare Americans to serve in a federalized militia for the common defense of the country, (2) to enable Americans, both individually and as part of the state militias, to defend themselves against a central government turned tyrannical, and (3) individual self-defense.
Inย Millerย the court recognized only the first purpose. This implicitly allowed the federal and state governments to ban weapons for the other two purposes. It was not until 2008 that the Supreme Court began to correct this mistake (pdf).
The Attack on Habeas Corpus and Trial by Jury
In 1942 the United States was at war with Nazi Germany. In June of that year, the Germans sent two submarines to American shores and dropped off eight would-be saboteurs. All eight were young men who had lived for long periods in America. Two were U.S. citizens.
At least two of the men (including one U.S. citizen) accepted their assignment only to escape from Germany and return to America. After landing, they surrendered themselves to the Federal Bureau of Investigation. They told the FBI everything, and the agency soon picked up the other six.
President Roosevelt was understandably furious that German submarines were able to discharge saboteurs onto American shores. He ordered the FBI to transfer the men to military control. He arranged for them to be tried by a military commission. His goal was to get immediate โguiltyโ verdicts and to execute them promptly.
Under the laws of war, the presidentโs course was entirely legitimate for the six non-citizens. Because, however, capture had not occurred in the immediate theater of war, his course wasย notย legitimate for the two U.S. citizens. Constitutionally, they were entitled to aย writ of habeas corpusย and a court order transferring them back to civilian custody. They also were entitled to be indicted by a grand jury and, if indictedโpresumably for treasonโgiven a public jury trial.
However, FDR, like some other presidents, didnโt care much about limits on his constitutional authority. He flatly told his attorney general, โI wonโt hand them over to any United States Marshal armed with a writ of habeas corpusโ (pdf).
And so the military trial proceeded. Counsel for the prisoners launched a spirited defense. Counsel showed the court that two defendants had turned statesโ evidence. Counsel also pointed to mitigating circumstances involving some of the other defendants.
It didnโt matter. The fix was in. All were condemned to death. The FBI had promised pardons to the two who had turned stateโs evidence, but Roosevelt didnโt honor that promise. He merely commuted their death sentences to long prison terms.
In Ex Parte Quirin (pdf), the Supreme Court quickly rubber-stamped the verdicts and sentences. The justices didnโt wait to prepare an opinion explaining their reasons. They announced only that an opinion would be forthcoming. Just five days after the saboteurs were found guilty, six of the eightโincluding one U.S. citizenโwere electrocuted.
Let me be clear: Itโs hard to be sorry for the saboteurs. They were operating outside the law of war, they were serving an evil cause, and they understood the risks. That said, though, it remains true that the justicesโ conduct was unworthy of the highest court in the land. A key reason for written opinions is to force judges to consider and write out their rationaleย beforeย announcing a decision. Sometimes the writing process induces judges to change their minds. Also, written opinions ensure that, in multiple-member courts, everyone in the majority is on the same page. Postponing the opinion to hasten the executions was, at the least, unprofessional.
As it turned out, after the executions the justices learned that they wereย notย all on the same page. It took nearly three months to craft a written opinion to which everyone on the court could agree.
This opinion was authored by Chief Justice Stone (pdf). It, too, was unworthy of the nationโs highest court. Specifically:
- It never revealed that six of the defendants were already dead.
- It admitted that one defendant was a U.S. citizen, but never mentioned the other.
- It failed to account for the fact that Congress had not suspended the writ of habeas corpus.
- It did not explain why a military tribunal was constitutional for American citizens apprehended outside the theater of warโwhich, of course, it wasnโt. In other words, the opinion never explained why the two citizens could be denied indictment by a grand jury and civil trial by aย petit jury.
Stone, you will recall, was the justice who introduced โrights balancingโ inย Carolene Products. In theย Millerย case, he and his colleagues balanced away the Second Amendment for the sake of a federal license. And inย Quirinย they balanced away habeas corpus, grand jury indictment, trial by jury, and due process of law.
Judges who re-write some parts of the Constitution will re-write others.
This essay is the sixth in a series. Itย first appearedย in the February 1, 2022ย Epoch Times.
- How the Founders Explained Limits on the Federal Government - January 21, 2026
- The Constitution and the Trump Tariffs - December 7, 2025
- Ancient Rome and the Constitution - October 29, 2025