In Ludecke v. Watkins, 335 U.S. 160 (1948), the U.S. Supreme Court turned down an appeal by an individual whom the government had classified as an “alien enemy” under the Alien Enemy Act of 1798 and had decided to deport back to Germany. Some justices dissented with the opinion, saying they feared that the ruling represented both the denial of due process and an infringement of First Amendment free speech rights.
Justice Frankfurter’s majority decision
The Court’s opinion, written by Justice Felix Frankfurter, was largely based on the idea that, even though America and its allies had won the war with Germany, a state of hostilities remained.
Frankfurter observed:
“It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.”
Frankfurter also predicated his opinion on the understanding that the Alien Enemy Act precluded judicial review of a removal order.
Four justices question effort to suppress political speech
In a dissent, Justice Hugo Black, joined by Justices William O. Douglas, Frank Murphy and Wiley Rutledge, raised significant First Amendment concerns.
Noting that Ludecke had been “a legally admitted resident of the United States,” Black believed that he was entitled to due process. Further arguing that the law at issue only applied when an individual had the capacity to aid a foreign government, Black noted that with the Allied victory, no such foreign government remained for him to aid and that “it is nothing but a fiction to say that we are now at war with Germany.”
Justice Black believed political ideas ‘must not be suppressed’
Black further argued that debates over the Alien Enemy Act at the end of World War I indicated that individuals had the right to a full and fair hearing before they could be deported, especially in light of the fact that the war with Germany had now ended. He was also concerned that the government’s decision might have been influenced specifically by the petitioner’s criticisms of its actions.
Noting the majority’s fear that “Germans, if now left in the United States, might somehow ‘have a potency for mischief’ even after the complete subjugation and surrender of Germany, at least so long as the ‘peace of Peace has not come,” Black believed that any such apprehension of mischief “must be based on fear that Germans now residing in the United States might emit ideas dangerous to the ‘peace of Peace.” Such fear was inconsistent with the First Amendment, which “represents this nation’s belief that the spread of political ideas must not be suppressed.”
Alien Enemy Act not meant to stifle speech after hostilities ended, Black says
Further observing that “the purpose of the Alien Enemy Act was not to stifle the spread of ideas after hostilities had ended,” Black noted that “Others in the series of Alien and Sedition Acts did provide for prison punishment of people who had or at least who dared to express political ideas.” For his part, Black refused to give “new life to the long repudiated anti-free speech and anti-free press philosophy of the 1798 Alien and Sedition Acts,” noting that “I would not disinter that philosophy which the people have long hoped Thomas Jefferson had permanently buried when he pardoned the last person convicted for violation of the Alien and Sedition Acts.”
In its historic decision raising the standards for proving libel against public figures in New York Times Co. v. Sullivan (1964), the Supreme Court later affirmed that “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”
Justice Douglas thought immigrant deserved a fair hearing
In a separate dissent joined by Justices Murphy and Rutledge, Justice Douglas objected to what he believed was an overly restrictive interpretation of the court’s role in habeas corpus proceedings.
Douglas observed that:
The needs of the hour may well require summary apprehension and detention of alien enemies. A nation at war need not be detained by time-consuming procedures while the enemy bores from within. But with an alien enemy behind bars, that danger has passed. If he is to be deported only after a hearing, our constitutional requirements are that the hearing be a fair one. It is foreign to our thought to defend a mock hearing on the ground that, in any event, it was a mere gratuity. Hearings that are arbitrary and unfair are no hearings at all under our system of government. Against them habeas corpus provides in this case the only protection.
Douglas added that “The notion that the discretion of any officer of government can override due process is foreign to our system. Due process does not perish when war comes. It is well established that the war power does not remove constitutional limitations safeguarding essential liberties.”
Modern applications
This decision, and the accompanying dissents, could have renewed relevance as President Donald Trump has, at the beginning of his second presidential term, evoked the Alien Enemies Act in his attempts to stop the flow of illegal immigration.
John R. Vile is a political science professor and the dean of the Honors College at Middle Tennessee State University.