The Return of Korematsu

Seventy years after the mass internment of Japanese Americans was upheld by the U.S. Supreme Court, the ugly ideas at the core of its decision are resurfacing.


Last week’s terrorist attack in Paris provoked a backlash among American politicians against the Obama administration’s plans to resettle Syrian refugees. They rushed to protect their constituents from potential ISIS members who could be lurking among the 10,000 refugees that the Obama administration hopes to admit into the country over the next year.

It’s natural enough to wonder, in response to the murky reports of a Syrian passport found at one of the bombing sites, about the United States’ own procedures for screening Syrian refugees. It turns out that refugees chosen for resettlement are exhaustively vetted by law-enforcement and intelligence agencies, with an average processing time of 12 to 24 months, before setting foot on U.S. soil.

But instead of asking questions, some elected officials echoed a response from one of America's darkest moments. Responding to the threat these displaced men, women, and children allegedly pose, Tennessee legislator Glen Casada called for the state National Guard to “round up” all Syrian refugees in the state on Tuesday. When asked about the constitutional protections that safeguard refugees and others in the United States, Casada replied, “And you have to ask yourself, which is greater: life or due process?”

Missouri state representative Mike Moon called for a special legislative session to halt refugee resettlement and “stop the potential Islamization of Missouri.” In his letter to the state speaker of the house, Moon feared that the diversity of Islam’s adherents could be a potent weapon.

I do realize that the refugees we should be scrutinizing most is one who professes the muslim faith. Unless I’m mistaken, a practicing muslim can do whatever is necessary for the "good” of the faith — telling “fibs” is a smallpart [sic] of what they might do. And, from what I’ve seen, a practicing muslim comes in all flavors (black, white, brown, yellow — American, African, European, etc. etc.).  A “white” lie could allow an individual to pass through the vetting process.

In Rhode Island, State Senator Elaine Morgan wrote to a constituent, “I do not want our governor bringing in any Syrian refugees. I think our country is under attack. I think this is a major plan by these countries to spread out their people to attack all non Muslim persons.” She added, “If we need to take these people in we should set up [a] refugee camp to keep them segregated from our [populace].”

In Louisiana, Senator David Vitter, who appears likely to lose that state’s gubernatorial election on Saturday, intensified his rhetoric against Syrian refugees as election day draws near. Vitter tweeted on Tuesday, “Spoke w/ LA State Police. They don’t know where BR [Baton Rouge] Syrian refugee is except that he was headed to DC & no gov agency is in contact with him.” Catholic Charities of Baton Rouge, a religious nonprofit that helps refugees resettle and adjust to their new communities, denied that they lost track of the refugee in question. Later that afternoon, the charity began receiving death threats for its work.

And in Virginia, Roanoke Mayor David Bowers suspended local assistance for Syrian refugees and invoked mass internment as a response to the perceived threat. “I’m reminded that President Franklin D. Roosevelt felt compelled to sequester Japanese foreign nationals after the bombing of Pearl Harbor, and it appears that the threat of harm to America from Isis now is just as real and serious as that from our enemies then,” he said in a statement.

Bowers refers to the mass internment of Japanese-Americans during World War II. In early 1942, President Roosevelt and the U.S. military issued exclusion orders to expel 120,000 people of Japanese ancestry from the West Coast and detained them in internment camps for most of the war. About 70,000 of those interned were American citizens. Those sent to the camps lost their homes, businesses, and many of their personal possessions, keeping only what they could carry with them.

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In one of its most widely condemned decisions, the U.S. Supreme Court upheld the exclusion orders in Korematsu v. United States. Justice Hugo Black argued for a 6-3 majority that the exclusion orders were a necessary outgrowth of the president’s war powers and justified by the situation at hand. “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions," he wrote in his opinion for the Court. “But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”

The Supreme Court has never overturned Korematsu, largely because federal and state governments have not attempted the mass internment of an entire ethnic group since then. But the decision belongs to what legal scholars describe as the anti-canon of American constitutional law—a small group of Supreme Court rulings universally assailed as wrong, immoral, and unconstitutional. Dred Scott v. Sandford, Plessy v. Ferguson, Buck v. Bell, and Korematsu form the anti-canon’s core; legal scholars sometimes include other decisions as well.

Korematsu’s place in that grim pantheon is well-earned. Courts apply strict scrutiny, the highest level of review, when weighing laws or policies that discriminate on the basis of race, national origin, or alienage. Korematsu was the standard’s first application; it was also the last time it failed to protect the group in question. “There is only one situation in which the Court expressly upheld racial classifications burdening minorities: the rulings affirming the constitutionality of the evacuations of Japanese-Americans during World War II,” wrote Erwin Chemerinsky, a UC Irvine law professor and prominent scholar of constitutional law. “No evidence of a specific threat was required to evacuate and intern a person. Race alone was used to determine who would be uprooted and incarcerated and who would remain free.”

In his vehement dissent, Justice Frank Murphy called the order “one of the most sweeping and complete deprivations of constitutional rights in the history of this nation.” He focused specifically on the racial dimensions of internment and how it weakened any purported military justification.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt, rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. In it, he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies . . . at large today" along the Pacific Coast.

“I dissent, therefore, from this legalization of racism,” he concluded. “Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

After the war ended and the fears that drove the exclusion orders faded, the U.S. government gradually renounced Japanese American internment. Congress passed the Non-Detention Act in 1971, which unequivocally states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” to prevent future presidents from attempting it again. The Civil Liberties Act of 1988 paid reparations to Japanese-Americans who lost their property and personal belongings during the war. The U.S. Solicitor General’s office, which represents the federal government before the Supreme Court, admitted in 2011 that it withheld reports on Japanese-Americans’ loyalty from the justices when defending internment in Korematsu and similar cases.

The Supreme Court has also effectively repudiated its decision, albeit without technically overturning it. “A Korematsu-type classification…will never again survive scrutiny,” Justice Ruth Bader Ginsburg declared in a 1998 dissent. Justice Stephen Breyer wrote in a recent book that the decision was “thoroughly discredited.” Justice Antonin Scalia, who previously compared it to Dred Scott, said during a speech last year that Korematsu was unequivocally “wrong.” But he also warned about repeating the same mistake in the future.

“But you are kidding yourself if you think the same thing will not happen again,” he said.

He used a Latin expression to explain why. “Inter arma enim silent leges … In times of war, the laws fall silent.”

“That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot,” Scalia said. “That’s what happens. It was wrong, but I would not be surprised to see it happen again—in time of war. It’s no justification but it is the reality.”

The current political climate towards Muslims may be bear out his warning. In an interview with Yahoo News published on Thursday, Republican presidential frontrunner Donald Trump offered some broad thoughts on additional security measures towards American Muslims in the wake of the Paris attacks. “We’re going to have to do things that we never did before,” he said.

Yahoo News asked Trump whether this level of tracking might require registering Muslims in a database or giving them a form of special identification that noted their religion. He wouldn’t rule it out.

“We’re going to have to — we’re going to have to look at a lot of things very closely,” Trump said when presented with the idea. “We’re going to have to look at the mosques. We’re going to have to look very, very carefully.”

Expelling all Japanese Americans from the Pacific Coast would have seemed unthinkable in 1940. Then came the fear and paranoia that pervaded cities like Los Angeles and San Francisco after Pearl Harbor. Frenzied reports of Japanese submarines off Oregon and saboteurs in California fueled a climate in which extreme constitutional violations towards an unpopular few seemed reasonable to a fearful many.

Korematsu is a reminder that, in times of crisis, there will always be an unpopular minority to fear and opportunistic demagogues to demonize them. But central to the Bill of Rights’ purpose is the protection of the few from the cruelty of the many, no matter who that few or many may be.