Academic journal article Albany Law Review

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence and the Detention of "Enemy Combatants"

Academic journal article Albany Law Review

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence and the Detention of "Enemy Combatants"

Article excerpt

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution--that "Eighteenth-Century sketch of a government hoped for" (1)--struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at Nuremberg, Justice Jackson sought to explain how the foreign affairs powers were distributed within the national government, how they related to constitutional civil liberties, and the appropriate role of the courts in achieving that balance.

Jackson was no dove; in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, he announced that he would "indulge the widest latitude of interpretation to sustain [the President's]" power to command, "at least when turned against the outside world for the security of our society." (2) But Jackson also understood that claims of national security were themselves one of the greatest threats to the fidelity of constitutional governance. By the time he reached the Court, he viewed the war powers as "the Achilles Heel of our constitutional system," (3) due to the claims of necessity and the corresponding challenges to judicial protection of liberty that security crises bring. His powerful insights in his Youngstown concurrence into how a liberal democracy must reconcile the tension between security and liberty continue to dominate any reasoned analysis of national security questions.

This comment, offered in Jackson's honor on the fiftieth anniversary of his death, addresses the contribution of Justice Jackson's wartime security jurisprudence to contemporary questions of executive detention of "enemy combatants," and particularly to the recent decision in Hamdi v. Rumsfeld. (4) Hamdi, of course, involved the executive's claimed authority to indefinitely detain a U.S. citizen accused of fighting with the Taliban in Afghanistan. This comment argues that Justice O'Connor's plurality opinion and Justice Thomas' dissent in that case missed a fundamental point of Justice Jackson's Youngstown analysis by failing to rigorously scrutinize claims that Congress had authorized such detentions. The Justices thus failed to appreciate the importance which Jackson placed on explicit participation by Congress in legitimizing deprivations of liberty in times of crisis. The Hamdi Court's ultimate conclusion that executive detention of a citizen could not occur absent basic procedural protections, however, was consistent with Justice Jackson's preference for legal process as the most effective defender of individual freedom.


It is impossible to exaggerate the significance of Justice Jackson's concurrence in Youngstown for U.S. foreign relations jurisprudence. My colleague at the University of Texas, Sandy Levinson, regards the concurrence as "the greatest single opinion ever written by a Supreme Court justice," (5) and I certainly will not disagree with him here. Although Justice Black's majority opinion in Youngstown dealt the fatal blow to President Truman's effort to seize the steel mills during the Korean War, it was Justice Jackson's concurrence that established the starting framework for analyzing all future foreign relations and individual liberties problems. Justice Jackson explained how the Constitution's cryptic and deeply ambiguous division of authority between Congress and the President in wartime--the grant of the power to declare and regulate war to one and the Commander in Chief power to the other--should be elaborated in practice.

Jackson rejected Justice Black's formalistic view that the powers of Congress and the executive were hermetically sealed and instead envisioned the branches in a symbiotic relationship. …

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