Lobbyists For Liberty

One of the most blatently anti-Semitic acts of the U.S. government in the history of the United States was made in December 1862 by Ulysses S. Grant, the top general for the Union in the Civil War, when he issued General Order 11 which stated that:

The Jews . . . are hereby expelled from the department [the "Department of the Tennessee," an administrative district of the Union Army of occupation composed of Kentucky, Tennessee and Mississippi] within twenty-four hours from the receipt of this order.

Post commanders will see to it that all of this class of people be furnished passes and required to leave, and any one returning after such notification will be arrested and held in confinement until an opportunity occurs of sending them out as prisoners, unless furnished with permit from headquarters.

General Grant's order also provided that "no Jews are to be permitted to travel on the railroad southward [into the Department of the Tennessee] from any point."

This order was no paper tiger. Dozens of Jewish families who were long time residents of the region were expelled from the territory at gunpoint as a result of this order.

Almost as notable is that the order was rescinded about three weeks later, entirely as a result of political action, rather than litigation, without a stated rational, through a direct appeal via politically connected people of the President's political party, several steps removed from the people harmed, to the President of the United States:

A group of Paducah's Jewish merchants, led by Cesar Kaskel, dispatched an indignant telegram to President Lincoln, condemning Grant's order as an “enormous outrage on all laws and humanity, ... the grossest violation of the Constitution and our rights as good citizens under it.” Jewish leaders organized protest rallies in St. Louis, Louisville and Cincinnati, and telegrams reached the White House from the Jewish communities of Chicago, New York and Philadelphia.

Cesar Kaskel arrived in Washington on Jan. 3, 1863, two days after the Emancipation Proclamation went into effect. There he conferred with influential Jewish Republican Adolphus Solomons, then went with a Cincinnati congressman, John A. Gurley, directly to the White House. Lincoln received them promptly and studied Kaskel's copies of General Order No. 11 and the specific order expelling Kaskel from Paducah. The President told Halleck to have Grant revoke General Order No. 11, which he did in the following message:

A paper purporting to be General Orders, No. 11, issued by you December 17, has been presented here. By its terms, it expells (sic) all Jews from your department. If such an order has been issued, it will be immediately revoked.

Grant revoked the order three days later.

Civic textbook political theory, and a good deal of constitutional law scholarship say that majoritarian elected officials don't protect the individual rights of unpopular minority groups against official oppression. But, the reality is more human and more complicated.

Indeed, the track record of litigants trying to enforce civil liberties protections in the face of military misconduct is poor even in the 21st century in the United States and other developed countries that we call our allies. In times of crisis, political remedies are often more effective than legal ones.

In this case, the survival of the petition clause of the First Amendment proved more important in practice than its more directly applicable freedom of religion provisions. It also didn't hurt that President Lincoln himself, was one of eighteen U.S. Presidents who did not strictly subscribe to Christian orthodoxy.

Hat Tips Enik Rising and Gene Expression.