“In times of war, the laws fall silent.”

Like most maxims, it sounds better in Latin: Inter arma enim silent leges.  Its message, however, is not merely important, but provides a deep insight into the dynamic of jurisprudence.  At Volokh/WaPo, Ilya Somin writes about Nino Scalia’s extrajudicial observations:

In a recent speech in Hawaii, Supreme Court Justice Antonin Scalia made some interesting predictions about two of the Supreme Court’s most notorious decisions: Kelo v. City of New London (2005), which ruled that government can condemn private property and give it to other private owners to promote “economic development,”  and Korematsu v. United States (1944), which upheld the internment of over 100,000 Japanese-Americans in concentration camps during World War II.

With regard to the controversial Kelo decision, Nino offered his view that it “will not survive.”  More significantly here, however, is that he addressed one of the most disgraceful opinions of the Supreme Court, the World War II ruling that held constitutional the internment of Americans of Japanese descent, Korematsu v. United States.

On Korematsu, Scalia unequivocally stated that the ruling was “wrong,” thereby differing with the small but noteworthy group of conservatives who have defended the decision in recent years, such as Judge Richard Posner and columnist Michelle Malkin. But he also predicted that a similar internment might be upheld in the future:

“But you are kidding yourself if you think the same thing will not happen again,” he said.

He used a Latin expression to explain why. “Inter arma enim silent leges … In times of war, the laws fall silent.”

There has been much speculation as to how and why the rhetoric of war has become pervasive in the realm of criminal law, from the militarization of police (see Balko’s Rise of the Warrior Cop) to the specific descriptor, the War on Drugs, and now our War on Terrorism.

The maxim isn’t subject to the rules of statutory interpretation, but rather to the visceral influence it carries in the court’s decision-making.  If the feeling is that this nation is threatened, then the thinking is that the law cannot prevent us from defending ourselves, no matter what.  Survival in times of war matters more than anything else.

“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot,” Scalia said. “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.”

Today, Nino can openly concede that Korematsu was unquestionably bad law, outrageous law.  And indeed, as is noted by so many criminal defense lawyers who consider and opine about the decisions of the Supreme Court that fail, facially, to protect our constitutional rights in order to achieve law enforcement convenience and effectiveness, to protect the sensitivities of prosecutors who bury Brady, to forgive deliberate attacks on the Constitution by offering assurances and excuses why no one getting a government paycheck would ever intentionally do wrong, the wrongfulness of the ruling is manifest.

We bang our heads against the wall wondering how, how is it possible, that nine seemingly intelligent men and women refuse to honor the mandates of the Constitution, preferring instead to engage in rhetorical gymnastics to reach a desired result.

“Inter arma enim silent leges … In times of war, the laws fall silent.”

The United States of America has been at war, whether engaged in armed dispute or metaphorical, nearly my entire life.  There was but a brief period between the end of the Korean Conflict and the Cuban Missile Crisis where our focus wasn’t battling something, and even then, the Cold War was brewing.  We are Americans. We must win the war.  We must defend our way of life. We must do whatever we have to in order to prevail.  And no court, no opinion, should stand in our way.

In his dissent in Terminiello v. Chicago, Justice Robert Jackson crafted a phrase that embodies the subjugation of rights to transient fear.

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.

Nino, on the other hand, openly recognizes that this leads the law into black holes of doctrinal failure and the systemic violation of constitutional rights, but that the Court is only willing or capable of seeing that clearly from a distance, once the threat of war has passed.

Nino warns that we would be kidding ourselves not to realize that this will happen, and will happen over and over as the Court perceives our country to be threatened by harm, at War as the maxim goes, and crafts its decisions so that honoring the Bill of Rights doesn’t result in our suicide.  Still, Nino doesn’t seem troubled by this. If anything, he appears to offer it in explanation, that sound doctrine and faithful adherence to the Constitution will invariably take a back seat to whatever war we’re fighting at the moment.

This explains a lot about our jurisprudence and the Supreme Court’s rulings.  For those who tried desperately to persuade the Court that they are on the wrong side of the Constitution and history, at least they now understand why reason, logic and the Constitution never stood a chance.

 

 

7 comments on ““In times of war, the laws fall silent.”

  1. John Burgess

    Perhaps I’m perverse, but I like the fact that the Constitution is a suicide pact, if the citizens wish to make it so. It gives the citizenry enough rope with which to hang itself, if it so choose. There’s nothing in the Constitution that prevents an amendment to do away with elections, particular offices, separation of church and state, or criminalizing speech.

    Luckily, those things are not likely to happen. Given a threatening enough situation, though? It could happen. I don’t think it’s likely to happen, ever, but there’s no bar to it.

    1. SHG Post author

      The issue with giving the citizenry enough rope with which to hang itself is the tyranny of the majority, which may choose to hang together but will hang those who prefer not to as well. Granted, it’s the nature of a constitutional democracy, but hanging sucks.

  2. Jim Tyre

    One of the first appellate case to mention the War on Terror (which was also one of the first appellate cases to cite Wikipedia) includes a wonderful quote. But, per the remarks of Justice Scalia, most courts might see it differently:

    We also reject the notion that the Department of Homeland Security’s threat advisory level somehow justifies these searches. Although the threat level was “elevated” at the time of the protest, “[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times.” Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on “yellow alert” for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.

    Bourgeois v. Peters, 387 F.3d 1303, 1312 (11th Cir. 2004)

  3. ryan

    What Justice Scalia said is sad but true, and he appears to be conceding that.

    Americans who hate the Bill of Rights often cite President Lincoln’s statement that: “a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”

    But today these war on terror hawks who hate the Bill of Rights don’t even concede what President Lincoln did, that these “measures . . . [are] unconstitutional . . . .” Today Americans are told that torture, NDAA, due process free drone killing and now NSA general warrants are all in fact magically constitutional. Thus no limbs are sacrificed and only lives saved.

  4. Brett Middleton

    Survival in time of war matters more than anything else? Those who fought the American Revolution placed less value on survival than on liberty or they wouldn’t have risked their lives to achieve it. Do we now see “give me liberty or give me death” as a suicide pact? If there is nothing worth dying for, then what is worth living for?

    To throw law and liberty out the window when survival is threatened is to say that law and liberty operate against survival. A curious proposition. If true, then it makes no sense to ever establish such institutions. It would be like cutting ourselves until we lose a significant amount of blood, at which point we will put down the knife until we recover. Striving for civilization would be insane, self-destructive behavior.

  5. Pingback: Liberty Is Not Suicide

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