“In Times of War, the Laws Fall Silent”

Over winter break I watched The Pianist. As the film opens, the main character is playing live on the radio in 1939—just as Warsaw is being bombed by Germany. With the bombs falling, the pianist rushes home. His family is Jewish, and his sister is a young lawyer.

The bombing continues for days. The family is relieved when France and Britain announce that they have declared war on Germany, but no nation comes to their rescue, and before long Warsaw is under the umbrella of one ideology. The pianist and his family, who are forced to wear blue Star of David armbands and are not allowed to work, eventually are relocated to a Warsaw ghetto. The pianist is separated from his family by a friend serving in the Jewish Ghetto Police. It is a heartbreaking moment as the rest of the family—including the pianist’s sister—are shoved into a cargo train and sent to their certain deaths.

That scene and the sister’s character arc have haunted me this entire semester. Although the movie is primarily focused on the pianist, I wanted to know more about her, what she was thinking—as an attorney, she must have agonized over the supposed legal justifications as the Jewish population lost their jobs, then their homes, until finally they were transported to the Treblinka extermination camp. What I found so frightening (and chilling) about the sister is that despite being a lawyer, she was unable to protect her family. Under the circumstances, what could she have done?

Everything was moving so fast. In a time of war, Poland’s civil society and its institutions were collapsing. The moment was bigger than one person, one attorney, or one Jewish woman.

But it still haunts me. And I have not been able to shake that feeling.

The Pianist remained close in my mind when I attended BC Law’s Rappaport Center for Law and Public Policy event called “Fighting Fascism: Lessons from Nazi Germany about the Rule of Law.” It included a documentary screening of Nazi Law: Legally Blind, followed by a discussion with documentarians Susan and John Michalczyk. The documentary covered the rise and fall of Hitler and the Nazi regime in Germany, and it compelled me to think more deeply about our own nation and system of governance.

Hitler used the political process to come to power, and then he used the legal process to consolidate power and eliminate dissent. When the German parliament building was blown up, Hitler urged President Hindenbergh to pass an emergency decree and pursue all communists in Germany. He dismantled democratic norms and suspended all civil liberties. Under the guise of national security, he took away rights from Jewish citizens and then persecuted them. The Nazi regime banned all Jews from taking the bar exam and from practicing law. With alarming precision, the Jewish citizens of Germany were stripped of their livelihoods, their homes, their rights, and their dignity. The social contract that the Jewish citizens relied upon had been destroyed.

Hitler did not come to power with brute force. He used the law and the constitution and consolidated power with no real check on his authority or agenda. After watching the documentary, I was reminded of how incredibly grateful I am for our system of checks and balances. The American system of governance generally does not allow for too much consolidation of power in any one branch of government. Except, as it appears to me now, in times of war.

All this was brought home to me when, around the time of the Rappaport film screening, we were discussing the issue of racial classifications in my Constitutional Law II class—in particular, the dreadful Supreme Court case, Korematsu v. United States, 323 U.S. 214 (1944), in which the Supreme Court upheld the internment of American citizens of Japanese heritage/ancestry in the aftermath of the attack on Pearl Harbor. Nearly 71 years after the case was decided, I found former Supreme Court Justice Scalia’s reflection on Korematsu to be particularly haunting:

“But you are kidding yourself if you think the same thing will not happen again…Inter area enim silent leges…In times of war, the laws fall silent… That’s what was going on—the panic about the war and then 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.”

Source: https://www.theatlantic.com/politics/archive/2015/11/the-shadow-of-korematsu/416634/

These days it seems like war—or the potential for greater war—is all around us: North Korean aggression, hostilities with Russia and China, the war in Syria, and the wars in Iraq, Afghanistan, Yemen, and other parts of the globe.

In this time of war and under the guise of national security, there are those who seek to rewrite the social contract for their fellow Americans who happen to adhere to the Islamic faith or happen to be of Latinx heritage. It is incumbent upon all of us to remind all Americans that our evolving ideals as a country and our constitutional rights were not just meant for prosperous and peaceful times, but especially for times of hardship and war.

As those who seek to rewrite the social contract embrace the blatantly sinister and regressive rhetoric across the nation, whether knowingly or unknowingly, in due time, they will come for the Muslims and Latinxs just as they once came for the Jews and Japanese. And without the mobilization of the masses and a higher enlightenment in the judiciary, the laws of justice may fall silent once again.

As a country we must ask the question: If we are to be perpetually at war, for how long will our laws and the judiciary be silent?

Do they have to fall silent?

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