A couple of my students approached me today with what they thought was a rather disturbing discussion in their first year Constitutional Law class (I teach Property to the same group).
The class was discussing Korematsu v. United States, the infamous Supreme Court case from 1944, which upheld the internment of Japanese-American citizens.Â Nothing so odd about that, especially in light of modern issues concerning national security and civil liberties.Â But here’s the disturbing thing:
Virtually all of the students who commented defended the decision.Â It was only after several minutes that any student spoke up and set forth the obvious issues, i.e. 1) that US citizens were convicted of simply being present in their country of citizenship; and 2) that German-Americans and Italian-Americans were not similarly treated.
I should quickly say that I don’tÂ question the professor in this case at all (and neither did the students I spoke with).Â He’s very good at raising open-ended questions and allowing the students to think (and speak) for themselves; no one would question his egalitarian and anti-racist bonafides.
So what happened here?
Well, perhaps this is one of those cases where everyone “knows” what the “right” answer is, viz., that Korematsu was an embarrassing abomination, so the students were attempting to argue against the obvious answer.Â I wasn’t in the room, so it’s hard for me to tell.Â But it doesn’t seem like this group: they don’t hesitate to speak up, but they won’t argue for the sake of arguing.
Rather, I wonder if the post-9/11 world has subtly but powerfully transformed our worldview.Â I graduated from law school in 1993; I can’t imagine a room full of law students then defending Korematsu, and I certainly can’t imagine that occurring without a million hands popping up to attack it.Â
The drip, drip, drip of anti-Muslim propaganda from the “respectable” organs of the Right and the constant MSM images of Muslim radicalism has made us more willing to understand or accept why decisionmakers would decide that for national security’s sake, perhaps one group has to be focused on.Â We might accept profiling, which of course is a far cry from internment, but really, it was more serious then, and in fact they had attacked us, and while I certainly don’t like this and would try to do something else and of course the vast majority of Muslim-Americans are loyal citizens you can’t be too sure and….
Justice Jackson’s Korematsu dissent warned that the decision established a principle that “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.”
Perhaps the weapon is still sitting there.