Inter Arma Enim Silent Leges

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.

Scalia cited a Latin expression meaning “In times of war, the laws fall silent.”

“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.

Avi Soifer, the law school’s dean, said he believed Scalia was suggesting people always have to be vigilant and that the law alone can’t be trusted to provide protection.

Go here to read the rest.

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:

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

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.

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