The Korematsu Case Revisited

korematsu

I remember very few papers I wrote as a college student. One exception is a paper about the horrific, anti-constitutional internment of the Japanese, including citizens, during World War II. It was an action initiated in panic by a racist Army General but ratified by some distinguished American liberals: President Roosevelt, Attorney General Francis Biddle, Justice Hugo Black, and then California Attorney General Earl Warren. It is a stain on all their memories and on American history. So much so that Congress and President Reagan formally apologized for internment in 1988. That right, Ronald Reagan knew it was wrong. There are ominous signs that the Trumpers do not.

TPM is usually the first political site I look at every morning. One headline was a real eye-opener, the textual equivalent of 2 cups of coffee, Trump Surrogate: Japanese Internment Camps A Precedent For Muslim Registry:

One of Donald Trump surrogate’s claimed Wednesday that the forced internment of Japanese Americans during World War II provided a “precedent” for the next administration creating a registry of Muslims living in the United States.

Carl Higbie, a former Navy SEAL and booster of the President-elect, told Fox News’ Megyn Kelly that such a registry was necessary until “we can identify the true threat” posed by Islamic extremists.

“We have in the past,” Higbie said. “We have done it based on race, we have done it based on religion, we have done it based on region.”

<SNIP>

“It is legal. They say it’ll hold constitutional muster,” Higbie said of the registry. “I know the ACLU is going to challenge us, but I think it’ll pass. And we’ve done it with Iran back a while ago. We did it in World War II with Japanese, which, call it what you will—”

I call it bigotry. That’s what I call it. Targeting a religious minority is also an egregious violation of the First Amendment. I am, however, glad that barking mad Naval Seal mentioned the Bush years. They were not big on the constitution either. It *can* happen here. In fact, it already has.

I have a a few questions. Will the “Muslim registry” apply to citizens? Is this partial payback for Khizr Khan? Trump is capable of such petty vindictiveness, after all. Who’s going to restrain him? Rudy? Kris Kobach? Jared Kushner? Not bloody likely.

Back to the post title. The Supreme Court upheld the Japanese exclusion order in Korematsu v. United States in 1944. Fred Korematsu, an American citizen, was convicted of “violating the civilian exclusion order.” SCOTUS upheld his conviction in an opinion by Justice Hugo Black with three Justices in dissent: Stanley Roberts, Frank Murphy, and Robert Jackson. It was not one of Justice Black’s finest hours but Justice Jackson’s dissent rings true in the wake of the comments by that barking mad Navy Seal:

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.
<SNIP>
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once 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, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

I added the bold face for obvious reasons. Korematsu has been discredited but never overruled. It still “lies about like a loaded weapon.” If the Islamophobes have their way, the chamber will be reloaded with their so-called registry. If that happens, all good people should try their damnedest to sign the thing in solidarity with those being oppressed. What’s next? A Yellow Crescent?

One thought on “The Korematsu Case Revisited

  1. Despite what people like to think about how friendly things are in Canada, much the same thing happened here – ask Dr. David Suzuki. His family and many others of Japanese heritage from across Canada were shipped to a remote, abandoned loggin camp in northern British Columbia – shacks with no running water or insulation in the Rocky Mountains.
    Of course, the US, sadly, are not only the modern experts in this treatment of “others”, they are the blueprint for the same treatment of People throughout Europe during WWII. The Third Reich based their Interment Camps on the US system…though in N.A. they are colloquially known as “Indian Reservations”. The Lakota Reservation at Pine Ridge is still officially known as “American Prisoner of War Camp #334”.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: