In times of war the laws fall silent. That is from the Latin maxim Inter Arma Enim Silent Leges. A study of history reveals just how true that is, and Justice Scalia reminds us of that fact:
U.S. Supreme Court Justice Antonin Scalia told law students at the University of Hawaii law school Monday that the nation’s highest court was wrong to uphold the internment of Japanese-Americans during World War II but that he wouldn’t be surprised if the court issued a similar ruling during a future conflict.
Scalia was responding to a question about the court’s 1944 decision in Korematsu v. United States, which upheld the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.
“Well, of course, Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime question-and-answer session.
“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality,” he said.
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Internment camps were set up after Pearl Harbor during the invasion scare. Several thousand Italian-Americans and eleven thousand German Americans were interned during the war, but these were individuals who were picked up because investigations indicated that they could be a domestic threat. The west coast Japanese were simply scooped up with no individual investigations. J. Edgar Hoover, head of the FBI, opposed the internment of the Japanese, regarding it as completely unnecessary, but his views sadly were ignored. About 120,000 Japanese -Americans were interned during the war, the vast majority loyal Americans.
The Supreme Court upheld the constitutionality of the internment in the case of Korematsu v. United States. The vote was 6-3. Six out of the eight Supreme Court Justices appointed by FDR voted to affirm the constitutionality of the internment. The lone Republican on the court, Justice Owen Roberts, wrote a dissent which deserves to be remembered. It begins simply and directly:
This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, [323 U.S. 214, 226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.
On the same day as the ruling in Korematsu was handed down, the Supreme Court ruled the internment of loyal Americans unconstitutional in December of 1944 in the case of Ex Parte Endo. After the decision Japanese-Americans were free to leave the internment camps, although about a quarter of the internees had already left to live and work in areas of the country other than the west coast zones excluded to them, or by volunteering for military service. This decision was unanimous and Justice Roberts correctly pointed out that the two decisions contradicted each other.
What happened in World War II was not an aberration. Whenever this country has gone to war some infringement on civil liberties has occurred. Sometimes these infringements have been massive as occurred during the Revolution and the Civil War.
Inter arma enim silent leges was a phrase not uncommon in the North during the Civil War, a time when many cherished laws and safeguards of personal liberty did fall silent. In the aftermath of the War there was a return to peace time norms. This was reflected in the case of Ex parte Milligan, an 1866 Supreme Court case. Lambdin P. Milligan, one of the leaders of the Knights of the Golden Circle, a “secret” Confederate organization in the North that everyone in the North seemed to know about, in Indiana was arrested in 1864, accused of being involved in a plot with others who were also arrested, to free Confederate prisoners from a POW camp and with their aid seek to topple the government of Indiana. Milligan was tried by a military commission and sentenced to death. Showing their neutrality in regard to the Defendant, the military commissioners spoke at Republican party rallies in the fall of 1864.
The case was appealed to the United States Supreme Court. Benjamin Butler, always as competent as an attorney as he was incompetent as a general, argued the case for the government. The Defense had a high-powered team, including Jeremiah Black a former attorney general and Union general and congressman, and future president, James Garfield. The court handed down a unanimous decision as to reversal in 1866 authored by Lincoln’s old friend from Illinois, Justice David Davis, who Lincoln had appointed to the court. This striking passage in the decision indicated that with the ending of the War the court was going to be reasserting its role regarding the law.
During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation.
Sometimes the law does sleep during war, and it is thus very important to reawaken the law during peace time.