Extra-Constitutional Sources of Emergency Power: Perhaps the most expansive argument for a constitutionally sanctioned, unqualified emergency power is that developed and expressed by Justice George Sutherland in a work published in 1919,[731] before his accession to the bench, and restated in his opinion for the Court in United States v. Curtiss-Wright Export Corporation.[732] In Constitutional Power and World Affairs, he asserted:
“As the highest duty of the nation is self-preservation, the rights of peace must then be held in subjection to the necessities of war. This does not result in a suspension of the Constitution, as some have petulantly suggested, but it may result in a suspension of constitutional rights of the individual because they conflict with the paramount powers of war....
“This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, of property and of life.”[733]
The later Supreme Court opinion only removes the inconsistencies from these passages, and recognizes the war powers as extra-constitutional in nature:
“It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality.”[734]
Justice Jackson, dissenting in the Japanese relocation case, Korematsu v. United States,[735] advocated complete judicial abnegation of any pretended power to review the necessity for emergency action. Favoring, however, a reversal of the judgment and a “discharge of the prisoner,” Jackson added that he couldn’t subscribe to the view that the existence of “reasonable military grounds” for such a wartime program made it constitutionally valid and subject to judicial enforcement.[736] The Court cannot
“... require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be....
“But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient....
“A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes a doctrine of the Constitution ... a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order....”[737]
It is true that the existence of this power in the government in wartime, and the admitted inability of the Court to restrict it, is “an inherent threat to liberty.”