Preservation of fundamental constitutionnal rights is the most important responsibility of the federal judiciary. The structural protections enjoyed by Article III judges-life tenure; no diminution of salary; two-thirds Senate vote for impeachment-are designed to insulate the judicial branch from political pressures in order to make it possible for it to act as an institutional safety-net in settings where a risk of majoritarian overreaction exists. It is a truism that the risk of government overreaching peaks during periods of national crisis, especially wartime.
It is also a truism that risks associated with the full-fledged enjoyment of certain constitutional rights increase during wartime. Thus, in time of war or national crisis, federal judges have the daunting responsibility of balancing a heightened risk of government overreaching against a heightened risk created by enforcing certain constitutional rights against the government. How should a federal judge react in such a setting when the political branches assert that enforcement of an individual constitutional right poses an unacceptably high risk?
One extreme would be for the Article III judiciary to take the government’s assessment of risk at face value, effectively leaving the scope of constitutional rights during wartime in the hands of the political branches. Given the difficulty of second-guessing the government’s initial risk assessment, such a passive approach is institutionally seductive. But both history and human nature tell us that government estimates of the risks associated with unpopular or frightening behavior are often overstated, especially in times of great national stress. We have only to remember the Alien and Sedition Acts, Lincoln’s suspension of the writ of habeas corpus, the Palmer raids after World War I, anti-union activity during the Depression, the Japanese internment camps, the McCarthy era, and the jailing of draft card burners during the Vietnam War.
The other extreme would be to insist that the judicial role should not change during wartime. Under such a view, the classic “checking” function of a federal judge as a brake on majoritarian overreaching should continue unabated during periods of crisis, with the government required to satisfy an extremely high burden of justification before it can act in derogation of traditional constitutional values. Although the examples are less well-known, federal judges have occasionally played precisely such an aggressively protective role during periods of military insecurity.
If forced to choose, I would opt for the latter approach. Abdication of the judiciary’s checking function during time of war or national crisis is virtually certain to result in serious misbehavior by overzealous government officials who will, in good faith, abuse their powers in the name of national security. The tragic misbehavior at Abu Ghraib merely illustrates the certainty that power will be abused in the name of national security unless its exercise is subject to effective outside scrutiny.
But we should not be forced to choose between the extremes of no effective judicial protection, or full-scale peacetime judicial review. Abdication of effective judicial oversight in time of war virtually guarantees the kind of oppressive behavior that has far too often marred our constitutional heritage. Ask a Japanese-American who was forced from her home and confined in a concentration camp during World War II what she thinks of a system with no judicial effective protection. On the other hand, insistence on a “business as usual” approach to judicial risk assessment in wartime may pose unacceptable levels of danger to society. Ask someone getting on a plane today whether a fairly administered prophylactic search of her baggage and the baggage of fellow passengers violates the Fourth Amendment.
Instead of being forced into an either/or choice between extremes, I wonder if it is possible to distill from our wartime experiences an intermediate position that would permit the Article III judiciary to continue to play an important checking function during wartime, while taking account of the changed reality that war brings? I propose to canvass briefly two strands of our wartime judicial experience, and to suggest an appropriate role for the Article III judiciary in a time of military hostility.
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