War and Human Right

There is no doubt that war changes American society. In World War II, women entered the work force; in America's current War in Iraq, gas prices and college tuitions are skyrocketing. But is there another trend that occurs when America goes to war, a darker, more disturbing trend? America is a country built on the principles of justice and liberty for all, but in war times, do those principles go out the window when America is threatened? America is a melting pot of so many different people from so many different places. If America is at war with, say, Italy, do Italian-Americans suddenly lose the rights guaranteed them by the Constitution of the United States simply because Italy poses a threat to America? Does the Supreme Court follow Cicero's maxim: "During war law is silent?" Do rights and liberties matter less to the courts if America is threatened? Evidence has shown that in times of war, the Supreme Court is more willing to curtail rights and liberties than it is to support them.

In what ways can the Supreme Court rule in cases such as these? There are two legal precedents the Supreme Court can follow. Ex parte Milligan in 1866 said that "The Constitution...is a law for rulers and people, equally in war and in peace..." (165) This means that no matter what, the playing ground is level. The Constitution does not apply any less to one American than another. Therefore, the court should be especially careful about upholding the civil rights and liberties of the American people in war. "The Court [should] acts as a guardian, not a suppressor" (166).

Then there is the Korematsu v. United States, in 1944, which upheld an exclusion order in which Japanese Americans were forced to relocate from parts of the Pacific Coast, thus suffering financial loss, because of the attack on Pearl Harbor that brought America into World War II. This shows that justices tend to overlook rights and liberties to its citizens when America is under threat. Is this fair? Maybe not, but this is largely how justices rule, and this is how the majority of the legal community sees as the best way.

There is no shortage of supporters of either thesis. Advocates of the Milligan view argue that the Court should take a cooler approach to war. Where most Americans have the hot streak of patriotism coursing through their blood, it is the Court's duty to rule fairly and not "to curtail rights and liberties" (171). That way, no one feels as if they have been treated unfairly. It was the Framers' intentions, by giving the justices lifelong positions, that they would be above the political influences and they would not worry about public opinion (171). Their role was to be the voice of reason. Justices do not have to run every so often; therefore they can be the stability in a political system in which the other two branches are elected. This was by design, so that they would not worry about what was right in terms of what would get them reelected or what is in their best political interests. Their main concern was, and should be, to uphold the Constitution and judge each case according to the law (171).

But largely more popular is the Korematsu view, or the "crisis thesis" (171). It is so popular because the supporters argue that during wartime, the Court has the duty to protect the greater good by overlooking the rights and liberties of certain people (171). The Court is still seen as a protector, but now it protects the public from a potential threat. This is to be seen especially in cases related to wars. The courts are to be a reflection of the rest of America. They will uphold elected officials' decisions and not exactly go by the book (172). The Court is constitutionally supposed to defer to the other branches when there is an international crisis. The Constitution gives Congress and the President powers that are expanded in times of crisis, yet it does not really give the Court any other expansive powers (172). The elected branches are the best ones to defer to when emergency situations come up (172). When national security is