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:
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:
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. (more…)