Say the word “war” and the rule of law often implodes, with courts frequently employing sophistry to avoid any interference with governmental conduct. To take an obvious example, during World War II the Roosevelt administration interned thousands of American citizens of Japanese descent solely on the basis of their ancestry, and the Supreme Court, in an opinion by Justice Hugo Black, upheld this patently unconstitutional confinement by simply repeating the mantra that, in time of war, total deference (unchecked and unbalanced) is due the military.
During the same war, the US troops fighting Nazi racism were, without judicial interference, segregated by color. Even the 1940 draft law, which stated that “in the selection and training of men under this Act,…there shall be no discrimination against any person on account of race or color,” was held by the Second Circuit Court of Appeals not to prohibit separate draft quotas for whites and blacks, since “the Army executives are to decide the Army’s needs.”
The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.
One of the voices decrying this judicial failure is that of Owen Fiss, a very distinguished Yale law professor, who over the past dozen years has written one essay after another analyzing, or one might say exposing, the shallowness of the judicial response to executive excesses committed in the name of national security. That Fiss would undertake this task was by no means inevitable. Now in his late seventies, he had focused much of his academic career (which had made him one of the most-cited legal scholars in the country) on such subjects as civil procedure, freedom of speech, and equal protection of the law. But his palpable disagreement with the way federal courts were, in the name of an uncertain and shifting war, largely avoiding judicial scrutiny of everything…
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