Introduction

Abstract

Introduction Melvin I. Urofsky The articles in this issue of the Journal, based on last fall’s annual lecture series, are particularly timely in light of the current war against terrorism and the fighting in Iraq and Afghanistan. As anyone who has followed the news can attest, there are a number of legal issues involved regarding how people desig­ nated as “terrorists” or “enemy combatants” are to be treated. How far do the normal pro­ cedural rules for criminal trials go when ap­ plied during wartime? How extensive are the war powers claimed by the executive branch, powers that definitely exist but are not spelled out in the Constitution? Some of these issues are already being considered in lowerfederal courts, and so there is good reason to believe that at some point they will reach the Supreme Court. While one can never predict how a current court will act basedonpastexperience, knowingthatpast ex­ perience may be a guide to understanding why courts do—and do not—act in certain ways during times ofnational crisis. The six articles that comprise this issue do not, of course, cover fully all war-related issues that have come before the Court, nor could they. But they do give a good sampling of how the Court—which, one should always remember, is a branch of the government and not some abstract body of platonic guardians hidden away in a marble Olympus—has re­ sponded when the nation has been threatened in the past. The record is, as we would expect, mixed. In some instances, the Court has shown such great deference to the political bodies as to almost abdicate its responsibilities for inter­ preting the Constitution. In other instances, it has essentially toldthe President and Congress that despite the fact ofwar, fundamental con­ stitutional safeguards must be observed. The problem, of course, is that the war on terrorism—the first war in almost two cen­ turies to inflict casualties on our homeland— is very different from the traditional wars we fought during the twentieth century, even v vi JOURNAL OF SUPREME COURT HISTORY Vietnam. The issues are, in many ways, con­ fusing, since the acts of terrorists are so alien to the rule of law that we cherish so highly. But as prior courts have reminded us, even if our enemies do not observe our constitutional rules, we must, and how we do that is often difficult to discern. These lectures give some idea ofthe prob­ lems involved. No doubt we shall learn much more in the years to come. ...