Wednesday, April 11, 2012

Dudziak on Robert Jackson on Law and Security after Nuremberg

Mary L. Dudziak, University of Southern California Law School, has posted Law, Power, and 'Rumors of War': Robert Jackson Confronts Law and Security after Nuremberg, which will appear in the Buffalo Law Review 360 (2012) 367.  Here is the abstract:
Library of Congress
Supreme Court Justice Robert Jackson’s most important legacy was his role as chief prosecutor for the United States at the Nuremberg Trials. This essay follows Jackson’s legal thought from his return to the United States after Nuremberg, until his death in 1954. Jackson hoped that the lesson of Nuremberg would be “to establish the supremacy of law over such lawless and catastrophic forces as war and persecutions.” Jackson changed law that applied to warfare. In looking to the future, he seems to have assumed that although law had changed, war would retain its essential character. Yet as the post-war years became instead the Cold War years, Jackson found himself in an era when the boundaries around wartime were eroding. The world entered an ambiguous era that seemed to be neither war nor peace. As Jackson himself would put it in 1951, rather than a break between wartime and peacetime, there was instead “a prolonged period of international tension and rumors of war, with war itself as the ever threatening alternative.”

Jackson’s response to the Cold War era was twofold. In cases involving members of the Communist Party, he argued that they were different in kind from other dissenters, so that the Justice who argued that the rule of law should apply to Nazi leaders also argued for a departure from applicable first amendment analysis because of the dangers posed by communism. In the area of war-related powers, Jackson took up more directly the ambiguous character of an era that seemed neither wartime nor peacetime. In this context, he favored limits on presidential power. Calling the Korean War an undeclared “foreign venture,” he argued in his famous Steel Seizure concurrence that it would subvert constitutional limits for a president to go to war without a declaration from congress, and then use that state of war as the basis for expanding his own domestic authority.

The essay is based on my contribution to the 2011 James McCormick Mitchell Lecture program at SUNY Buffalo Law School, which commemorated Robert Jackson’s inaugural Mitchell Lecture in October 1951.