One of the toughest concepts to convey to students in constitutional law, is how precarious our laws are during times of crisis. It is easy enough to study Youngstown Sheet & Tube Co. v. Sawyer 60 years later, and say, yeah Justice Jackson did the right thing, and told President Truman no. But, there was no guarantee Truman would listen to the Court (in hindsight he apparently told Justice Black that he didn’t like his ruling, but liked his bourbon). It is easy enough to study Korematsu as a black mark on the U.S. Reports, and fault the Supreme Court for upholding the horrific concentration camps our country established. But, there was no guarantee FDR would have listened to the Court had they ruled again him (I tend to think he would’ve ignored the Court altogether).

As fragile as our Constitution is, it becomes even more fragile during times of war. We should never forget we are only one crisis away from becoming a dictatorship. This was an animating fear of Justices Frankfurter and Jackson in Youngstown, who looked to the rise of fascism in Europe as a warning to America, of the criticality of our laws. Jackson wrote of the steel seizure, “I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

There is a maxim, “maxim intra armes silent leges,” translated as  “In times of war, the laws fall silent.” Justice Scalia invoked this maxim at a recent event to argue that another Korematsu is possible.

“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 Q-and-A 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.

So what  protect this fragile balance? It is certainly not the Bill of Rights. It is our constitutional structure, and the separation of powers, enforced by the Courts. Scalia makes this point all the time, but as far as I can tell, it originated in his Morrison v. Olson dissent.

Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

Having an independent judiciary that, even in times of war, can check the other branches, is the last line of defense. This is the point Jackson’s concurrence in Youngstown conveys.

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

But let’s address the second part of Scalia’s statement and Jackson’s concurrence, zone 1. What if a majority of Americans support the internment of Japanese? What if Congress votes in favor of that decision? In particular, when the government lies to the people and the other branches about the nature of the threat, as they did in Korematsu. Under Jackson’s approach, then, in times of war, the President would have that power, and the Court defers.

This, is when things get real.

Update: In another account of Scalia’s speech, the Justice explicates this point further–the point of Separation of Powers is to protect individual liberty.

“The function of the court is not to keep the other two branches (legislative and executive) in line; that’s not what we’re for. We’re there to stop harm to individuals,” Scalia said.

I had a discussion in the comment threads that is worth repeating. Why does structure protect liberty? Scalia, Kennedy, and others often throw out the line that structure protects liberty See Morrison v. Olson (Scalia, J., dissenting) or Clinton v. New York (Kennedy, J., dissenting) or Bond v. United States (Bond) or NFIB v. Sebelius (joint opinion). But they never explain how or why. They say it as if it is self-evident. I tend to agree with them, but I would like to articulate *why* structure protects liberty. Another article on the list.

Update 2: Chief Justice Rehnquist made a similar statement in his book, All The Laws But One–Civil Liberties in Wartime:

“An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”