The Zeroth Article of The US Constitution
“Inter arma enim silent leges” should not be, but it is.
The Japanese attacked Pearl Harbor on December 7th, 1941. Just over two months later, President Roosevelt issued Executive Order 9066, authorizing the creation of military areas, which could exclude groups of citizens.
This order led to the internment of some 120,000 people, of whom approximately 80,000 were US Citizens, predominantly of Japanese ancestry.
Citizens were removed from their homes and places of work.
Fred Korematsu, an American citizen, refused to comply and was arrested, convicted, and sentenced to five years probation before being sent to an internment camp in Utah.
Korematsu appealed, which culminated at the Supreme Court on December 18, 1944, with a ruling of 6–3 against Korematsu. The court decided it was constitutional for military authorities to remove US citizens from their homes. The war with Japan would end 8 months later on August 15, 1945.
The Korematsu v. United States case is considered one of the most egregious decisions of the Supreme Court, in which the Court failed to defend the constitutional rights of US citizens. This case has been considered part of the “Anticanon” of Supreme Court decisions, in which legal decisions are now viewed as having been wrongly reasoned or ruled.
The Anticanon often includes cases such as Dred Scott v. Sanford, Plessy v. Ferguson, and Lum v. Rice, in which the Supreme Court failed to condemn slavery, racial segregation, and racial discrimination.
The decision against Dred Scott reasoned that since he was a black slave his constitutional rights were not violated, because he had no such rights. Constitutional rights remained “intact”.
The decision against Homer Plessy ruled that laws treating people differently based on race did not violate the Constitution, affirming the doctrine of “separate but equal”. Constitutional rights remained “intact”.
The decision against Martha Lum ruled that she could be excluded from white-only schools since racial segregation and youth education are up to the states. Constitutional rights, again, remained “intact”.
Egregious, appalling, and wrong, but consistent.
The Korematsu case, on the other hand, stands out amongst these cases of racial discrimination. The majority decision, in that case, recognized that Korematsu’s constitutional rights were indeed violated, but that since it was wartime, this was acceptable.
In his majority opinion, Justice Black wrote: “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions,”.
What Justice Black reasoned was that constitutional rights can be legally violated, so long as there are dire emergencies and perils. This was the first example of the “Strict Scrutiny” standard being applied, in which the Supreme Court recognized that rights were violated, but that their violation was justified to achieve a “compelling state interest”.
If “dire emergency and peril” is sufficient justification for applying the Strict Scrutiny standard, the question arises: what exactly constitutes such a perilous emergency?
In Justice Black’s majority opinion, he outlines four reasons that led him to conclude such peril was in place:
“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.”
His threshold for dire emergency and peril can be summarized:
- The nation was at war
- The military authorities felt sufficient fear for the safety of the country to take action
- The military authorities decided some citizens should have their rights violated to ensure national security
- And congress determined that military authorities should have the power to violate rights
In wartime, authorities can determine whether they should have the power to legally violate the Constitution.
In the following decades, Supreme Court Justices have expressed their disagreement with the Korematsu decision, with Justice Breyer even going as far as saying the decision was an “injustice”.
In a 2014 speech in Hawaii, Justice Scalia stated that the 1944 decision was “wrong”, but added in his observation “ But you are kidding yourself if you think the same thing will not happen again,”.
In his observations, Justice Scalia added a Latin expression: “Inter arma enim silent leges … In times of war, the laws fall silent.”
This aphorism: “Inter arma enim silent leges” is attributed to the Roman Statesman Cicero in the 1st Century BC. Justice Scalia’s reference to this Latin phrase was given as an observation of what happens in wartime, not as a justification of when laws should be rightly suspended.
Laws should not fall silent, but they do. And they will.
You could see the Korematsu decision as a mistake of the courts, or you could see it as the expression of a blunt, underlying reality: laws are contingent on a country’s continued existence. If that existence is perceived to be threatened, laws will be violated to preserve existence.
The Korematsu decision articulates the existence of a Zeroth Article of the Constitution.
Science fiction writer Isaac Asimov, who coined the term “robotics”, wrote extensively about robots and about how they would work. In a 1942 short story, Asimov outlined three laws governing how robots should act, with each subsequent law being conditional upon obeying the law that preceded it.
First Law: A robot may not injure a human being or, through inaction, allow a human being to come to harm.
Second Law: A robot must obey the orders given by human beings except where such orders would conflict with the First Law.
Third Law: A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.
Robots must protect humans, obey humans and survive, in that order.
A Zeroth Law was first named in Asimov’s Robots and Empire. Following the logic of lower-numbered laws superseding higher-numbered laws, the Zeroth Law comes before the First Law and reads:
The Zeroth Law: A robot may not harm humanity, or, by inaction, allow humanity to come to harm.
In Asimov’s books, the Zeroth Law is an unwritten law, not explicitly programmed into robots’ brains, but reasoned at a philosophical level to supersede all other laws. The Zeroth Law is what allows some robots to harm individual humans, in violation of all explicit laws, in order to serve the higher purpose of protecting humanity.
The Constitution is the supreme law of the United States. The seven articles and 27 amendments of the US Constitution are inviolable and explicit… except when strict scrutiny is applied such as in times of war.
“Inter arma enim silent leges” is the US Constitution’s Zeroth Article.
The contemporary relevance of the Korematsu case is whether such a violation of constitutional rights could happen again. Upon reflection, Justice Black’s four criteria for meeting Strict Scrutiny are not too difficult to overcome.
Since 9/11, the US has perpetually been at war with terrorists and state sponsors of terrorists. The military actions in Afghanistan, Iraq, Libya, and Syria, are the more obvious examples of the larger War on Terror that also ranges from operations in Pakistan to drone strikes in Yemen. The post-9/11 world is one in which military authorities are in constant fear of attack, to the point where they believe action is warranted.
If military authorities were to deem it necessary to violate the Constitution and Congress were to agree that such a violation was warranted, who is to say whether the Supreme Court would defend constitutional rights or not?
In Justice Breyer’s 2010 C-SPAN interview, he summarized the 1944 Court’s Korematsu reasoning:
“It’s the military trying to protect us from invasion. Now, we run the war or Roosevelt runs it, and we can’t run it. So we have to let Roosevelt do what he wants.”
A June 2018 decision by the Supreme Court relating to President Trump’s travel ban effectively overturned the Korematsu case, with Justice Roberts opining that it “has no place in law under the Constitution”. Justice Sonia Sotomayor, joined by Justice Ginsberg, went as far as asserting that “Today, the Court takes the important step of finally overruling Korematsu,…”, and therefore it no longer holds precedent.
Despite the universal condemnation and effective overruling of the Korematsu decision, it remains part of constitutional history. Rights were violated and those violations were upheld. To think that such a scenario could never again occur underestimates the realities of war.
The Constitution and the rule of law exist to protect minorities from the tyrannies of majorities, regardless of conditions. These are the values that the statements by Justices Ginsburg, Sotomayor, Breyer, Roberts, and Scalia expressed when they opined against the Korematsu decision.
Korematsu was wrongly decided, but decided it was nonetheless.
An unwritten, superseding Article that goes against the explicit values of the nation is deeply troubling. With the ongoing War on Terror repeatedly compelling military action, there remains the possibility of constitutional rights getting in the way. Protections provided by the rule of law may not be as reliable as we may think.
“Inter arma enim silent leges” should not be, but it is.
As Justice Scalia noted, “It’s no justification but it is the reality”.
