Is That Legal?

The first half of the nineteenth century saw a remarkable wave of German immigration into the United States. Fleeing economic chaos in Europe in the wake of the Napoleonic Wars, German immigrants fanned out across the American landscape, settling not just in the major east coast cities but also in inland trade centers. Among these German immigrants were Jews, primarily (although not exclusively) merchants. By 1860, about sixteen thousand Jewish country peddlers were at work in the United States, supported by a network of primarily Jewish retailers, wholesalers, and manufacturers that stretched all the way back to the east coast. Many of these Jews settled along the major inland trade routes of the time--the Ohio, Missouri, and Mississippi Rivers. Some struggled, many (like the Brandeis family of Louisville, Kentucky) moderately prospered, and a few became business and civic leaders. Some quickly assimilated; others did not.

With the outbreak of the Civil War, the western trade routes, especially the Mississippi, became crucial to both North and South. At first, both North and South left the Mississippi open to trade. For the South, the river brought much needed coin and supplies southward to support the war effort. The North, for its part, needed southern cotton and was reluctant to wreak havoc on the economies of the western border states by shutting down trade with the South. By the summer of 1861, however, both South and North took steps to stem trade along the Mississippi. President Lincoln took the bolder step, announcing in August that all trade with the Confederacy was prohibited. Individuals wishing to trade could do so only by applying for a permit from the Department of the Treasury.

Memphis, Tennessee, was probably the greatest southern commerce center along the Mississippi north of New Orleans. It remained in rebel hands until the Confederate defeat at the Battle of Shiloh in April 1862 forced the Confederacy to abandon western Tennessee to General Ulysses S. Grant's advancing Union forces. Two months later, Memphis was under federal occupation.

Under Lincoln's order of August 1861, Union traders (and those who would take a loyalty oath to the Union) were free to operate in any federally occupied locale. With the occupation of Memphis, this southern trade center saw a wave of northern merchants, including but not limited to Jews, sweep into town. The situation in Memphis immediately became quite complex. On the one hand, the Lincoln administration wished to entice the local population back into the Union fold by ending their deprivation and allowing them to regain at least a fraction of their lost prosperity. The Union also desperately needed cotton for its own military and economic uses. On the other hand, the markets of Memphis were close to enemy lines; goods bartered for cotton quickly made their way to the Confederate army to support soldiers in the field. Because of these conflicting demands and incentives, the trade policies of the occupying Union forces shifted frequently from prohibition to encouragement and everything in between. In such a confused setting, bribery and corruption--even in the ranks of the Union army--soon became rampant.

Union military leaders, charged with the responsibility for administering the military Department of the Tennessee (which included that state and parts of Mississippi and Kentucky), quickly began expressing their frustration with the trade, licit and illicit, that they felt undermined the Union war effort. Grant complained in a letter to his sister that "(w)ith all my other trials I have to condend (sic) against is added that of speculators whos (sic) patriotism is measured by dollars & cents. Country has no value with them compared with money." Most of the ire, however, focused on the Jews, even though they represented only a fraction of the offending traders. Grant wrote to the Assistant Secretary of War that "in spite of all the vigilance that can be infused into Post Commanders(,) . . . the Specie regulations of the Treasury Dept. have been violated, and that mostly by Jews and other unprincipled traders. . . . (The Jews) come in with their Carpet sacks in spite of all that can be done to prevent it. The Jews seem to be a privileged class that can travel anywhere."

When Grant decided to take action, he set aside his concerns with the "other unprincipled traders" and took aim solely at the Jews. On December 17, 1862, he issued his General Order Number 11:

I. The Jews, as a class, violating every regulation of trade established by the Treasury Department, and also Department orders, are hereby expelled from the Department.
II. Within twenty-four hours from the receipt of this order by Post Commanders, they will see that all of this class of people are furnished with 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 permits from these Head Quarters.
III. No permits will be given these people to visit Head Quarters for the purpose of making personal application for trade permits.

Thus, all Jews in the Department of the Tennessee had twenty-four hours to clear out or be arrested. Grant's order applied indiscriminately to all Jews-- men, women, and children; traders and nontraders; recent arrivals and established members of the community. On its face, it applied even to Jewish soldiers in the Union army. Such a military order would not be seen again until General [John] DeWitt evicted [Japanese Americans] from the west coast eighty years later.

Like the west coast Japanese-Americans, the Jews of the Tennessee complied with the military order. Twenty-five hundred Jews desperately began looking for scarce transport up the Mississippi river and out of the reach of Grant's order. Their departure was rushed and traumatic. One surviving account tells of "a baby almost left behind in the haste and confusion and tossed bodily into the boat" and of "two dying women permitted to remain behind in neighbors' care." Another account tells of a group of four Jews in Oxford, Mississippi, whose horse, buggy, and luggage were confiscated shortly before they were sent away by train under guard. When one of them asked the reason for their detention, he was told, "Because you are Jews, and are neither a benefit to the Union or Confederacy."

Jewish community leaders complained about the order and sought to have it rescinded. A delegation of Jews from Paducah, Kentucky sent a telegram to President Lincoln protesting Grant's "inhuman order, the carrying out of which would be the grossest violation of the Constitution and our rights as citizens under it, (and) which will place us . . . as outlaws before the whole world." The leader of this delegation, Cesar J. Kaskel, also sent letters and telegrams to Jewish community leaders and newspapers around the country, urging them to speak out against Grant's order.

Kaskel then traveled to Washington, D.C., where he, an Ohio congressman, and the leader of a national Jewish organization were granted an appointment with President Lincoln. Kaskel showed the president Grant's order and explained its background and impact. Lincoln, shocked by the order, responded with a biblical metaphor:

Lincoln: And so the children of Israel were driven from the happy land of Canaan?
Kaskel: Yes, and that is why we have come unto Father Abraham's bosom, asking protection.
Lincoln: And this protection they shall have at once.

At that, Lincoln drafted a note to his General-in-Chief of the Army, Henry W. Halleck, instructing him to rescind General Order Number 11.
Halleck later took the opportunity to explain to General Grant why President Lincoln had revoked the order:

It may be proper to give you some explanation of the revocation of your order expelling all Jews from your Dept. The President has no objection to your expelling traders & Jew pedlars (sic), which I suppose was the object of your order, but as it in terms prescribed an entire religious class, some of whom are fighting in our ranks, the President deemed it necessary to revoke it.

Lincoln himself explained to a group of Jewish leaders that he "d(id) not like to hear a class or nationality condemned on account of a few sinners."

This episode thus marks an early appearance on record of what now seems commonplace: heightened or "strict" scrutiny of a law that singles out a racial, ethnic, or religious group for a unique burden. The order was both underinclusive, in that it did not target non-Jewish traders, and overinclusive, in that it did target nontrading Jews. But heightened scrutiny was not part of legal or constitutional understanding in 1863. Indeed, many decades would pass before courts would develop the doctrine as they struggled to give meaning to the Fourteenth Amendment's Equal Protection Clause.