If Korematsu Were Decided Today…

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.  Nothing so odd about that, especially in light of modern issues concerning national security and civil liberties.  But here’s the disturbing thing:

Virtually all of the students who commented defended the decision.  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’t question the professor in this case at all (and neither did the students I spoke with).  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.  I wasn’t in the room, so it’s hard for me to tell.  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.  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. 

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.  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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

22 thoughts on “If Korematsu Were Decided Today…”

  1. I started my second week of law school on September 11, 2001, and was in property I when we heard about the first strike. By the time of the second, I knew that law school would be quite different (I was much older than the rest, having been a naval officer and engineer before making a career change).

    Between the appointment of Bush and the almost daily gutting of the Constitution even as we were all supposed to pretend and discuss it as if it still said anything, it was quite surreal.

    Worse than all of that is to help elect a former con law prof who turns out to have even less regard for it than his idiot predecessor.

  2. The Japanese internment situation of WW2 is a fascinating subject to ponder in so many ways. My perspective comes from the point of view of having been born in a suburb of Stalingrad, Aug. 1945. My family ended up there as a result of fleeing Poland several years earlier, just in advance of Hitler’s Blitzkrieg. Complicating things was my father, a young Jewish, Polish doctor having married my mother, A Russian Orthodox, Russian national, studying medicine as an exchange student at the hospital my father practiced in. Stalingrad wasn’t their destination (that would have been China) as my father correctly predicted Poland’s rapid fall, followed by Hitler’s betrayal of Stalin, and attacking the Soviet Union in spite of their non-aggression pact. The only mistake “Pop” made was in predicting Russia’s fall also, hence, destination, China. (Luck was with them) So, after the successful Siege my family made a U-turn and left Russia by reversing the Northward saga of several years prior, and followed the German army’s retreat South. Our travel was greatly facilitated by utilizing the Russian army’s troop trains; The Army willingly, eagerly bartered food and transport for Pop’s medical services.

    Please forgive this preface of my family’s history, but I imagine this thread will be active, and lively, and I just wanted to put this out there so as not to be repetitive going forward.

    I appreciate your indulgence.

  3. A first year law student here. I was shocked a few weeks ago when we did Korematsu. While properly presenting it as “one of the worst ever” my professor felt strongly that, descriptively it is still technically good law, and
    a few more 9/11s in row would probably lead to profiling and/or mass detention. Pretty disheartening but also appears clear that there are few if any legal impediments to executive authority during war.

  4. “The drip, drip, drip of anti-Muslim propaganda from the “respectable” organs of the Right”

    I’m pretty sure it’s got a lot more to do with the drip, drip, drip of absolutely abominable acts in the name of Islam. Absent which, said propaganda probably wouldn’t exist. Note all the anti-Hindu propaganda we’re immersed in…

    And I say that as somebody who believes Korematsu was a legal and moral abomination itself. But then, I’m something of an absolutist about demanding that the government obey limits on it’s power, which is a minority opinion today, and that absolutism contributes to my believing Korematsu wrong.

    Beware of persuading people that the end justifies the means. They won’t engage in that sort of reasoning only when YOU like the means.

  5. Jonathan, I’ve seen the same thing. Post 9-11, the debate has shifted. In some ways, I don’t think we should be surprised about this. Pre-9-11, I always thought that discussions of Korematsu were a bit too self-congratulatory, in a “we obviously know better today” sense. Justice Jackson had it exactly right.

  6. “Little by little a person becomes evil, as a water pot is filled by drops of water…Little by little a person becomes good, as a water pot is filled by drops of water. ” –Gautama Buddha

  7. It’s more than a little interesting to think about anti-muslim propaganda being responsible for the revival of Korematsu. The shift from justifying detention based on ethnic group to detention based on religious beliefs is more than a bit telling. But it certainly would make a heck of a precedent to cite for the mass detention and re-education of the FLDS…

  8. @ Brett

    Please list the “absolutely abominable acts in the name of Islam” (I’ll give you a bonus point for the nifty alliteration) performed in the United States by Muslim citizens of our country. Also, list the number of citizens involved in those acts. Acts aborted by our government (even if it was acting as an agent provocateur) don’t count. So don’t tell me about the pizza delivery dude who wanted to blow up Fort Dix or La Guardia.

    When you’ve finished that, check the estimated number of citizens who profess Islam. Then, figure out for yourself if justice is served by creating internment camps for Muslim citizens.

  9. When Brett is done, we can then move on to the atrocities committed by Hindus – or Christians.

  10. “Please list the “absolutely abominable acts in the name of Islam” (I’ll give you a bonus point for the nifty alliteration) performed in the United States by Muslim citizens of our country.”

    Why would I need to do that? You think the reputation of Islam doesn’t suffer due to acts that take place in other countries? That Americans are utterly ignorant of what’s going on in the rest of the world? I’m not defending Korematsu, keep in mind. I’m just saying, it isn’t propaganda that’s given Islam a bad repuation in the West. Simple news coverage is enough to do that.

    Anway, why would you think that a difficult challenge to meet? Hello, DC sniper ring a bell? Fort Hood? If individual acts of terror by members of a religion were any excuse to discriminate against members of that religion, examples would NOT be lacking. Pretending that they are is almost an admission that you DO think such incidents would justify discrimination.

    Well, *I* don’t, so I don’t have to pretend they don’t exist.

  11. Ok Brett, it’s not propaganda–it’s propaganda feeding bigotry, as always.

    It’s not the news that makes individual bad acts committed by individual Muslims in the name of Islam special and representative in a way that individual bad acts committed by individual Christians in the name of Christianity or by self-styled American “patriots” in the name of patriotism aren’t considered special and representative.

  12. @ Brett

    I’ll raise you Timothy McVeigh. I think I lead in the death count. And as usual, you missed the point. How many Muslims are there in this country? Korematsu holds that we can judge our fellow citizens potential for disloyalty on the basis of something other than their individual behavior. The Constitution appears to hold otherwise, Korematsu notwithstanding.

  13. Again, I think Korematsu was a constitutional abomination. I just don’t think it requires propaganda for westerners to have a generally poor opinion of Islam. Just a minimal bit of paying attention. Although it does require prejudice for that generally poor opinion to be taken as telling you anything about any particular Muslim.

  14. It’s always interesting to watch Brett morph from Uber-Libertarian to Uber- ah, something else – whenever it comes down to supporting Israel. (and bashing Muslims)

  15. I just don’t think it requires propaganda for westerners to have a generally poor opinion of Islam. Just a minimal bit of paying attention.

    Aside from the fact that, as a proportion of a world population in excess of a billion, all the events taken together don’t even begin to approach statistical significance. Aside from that.

  16. Does the percentage of nations with majority Muslim populations which are at best authoritarian approach statistical significance, in your opinion?

  17. @Dennis

    Please list the “absolutely abominable acts in the name of Islam” (I’ll give you a bonus point for the nifty alliteration) performed in the United States by Muslim citizens of our country.

    This one is easy–at least, for n=1. Think Fort Hood. Brett got that one right. DC Sniper? Not so much. Religion was not an issue in that case and if there was any brand of Islam implicated WRT the two snipers, it certainly had nothing to do with the actual killings. So Brett has one hit, one false positive. But I can add one more–you left too much room in your restrictions. The Times Square bomb was prevented largely due to the ineptitude of the bomber, not to law enforcement vigilance. But that really is an exhaustive list.

    I’ll raise you Timothy McVeigh.

    I’d go in a different direction. Let’s see how many doctors and other medical/administrative personnel have been killed by mad anti-abortionists in the name of Christianity? I can think of at least 5 off the top of my head and, I suspect, the list is a lot longer. So, if we are going by the number of US citizens involved in abominable acts leading to death of other American citizens, perpetrated in the name of religion, we should be locking up Christians first. All denominations–Unitarians are not really Christians, so they don’t count. And if we follow Brett down the rabbit hole and look at global (and historical) violence, we can start with the pedophilia and physical (not just sexual) abuse associated with the Catholic Church in every country where Catholic clergy has had a significant presence. I suppose, these are abominable enough, but not in the name of the religion. OK, how about US Evangelical representatives flying to African countries to convince local governments to institute death penalty for homosexuals? Are these not abominable acts done in the name of their religion? Following Brett’s account we’d need no propaganda to condemn all Christians because of their bad acts. Yet, somehow, I don’t think this is going to work as a PR campaign in the US.

    Yes, yes, I know–Brett thinks Korematsu was a horrible decision. Sorry, it was “a legal and moral abomination”. Agreed. It should serve as a reminder that it’s preposterously easy to sneak unconstitutional decisions through the Supreme Court if you’ve got the right kind of ideological majority. Oh, wait…

  18. I’d say that the Republican party has completely metamorphosed from being an anti-communist party to an anti-Islamic party. Finding the enemies within is their specialty and as such there has to be a continuous pushback against Korematsu which stands for the proposition that someone is not an enemy simply due to status. It’s pathetic but almost inevitable that they’ve gained so much ground. Personally I find it very hard to understand the basic fear and cowardice that underlies this approach but it seems to be a feature of gaining electoral advantage. It’s sad to destroy the basic courage and strength of America into question but they seem fine with it. Personally I consider them to be yellow bellied cowards constantly looking for fantastical commies/jihadis under the bed. Pathetic.

  19. Warning….Non-Lawyer

    Korematsu reminds me of those cases I’ve heard about where the entire male (I guess it could also be female) population of a town/village/burg submit to DNA testing for all the popular reasons. So, before I stumble around too much would someone respond to these questions:

    A. is the giving of DNA samples voluntary, or are they compelled?

    And

    B. Is there a numerical limit to the number of potential perpetrators when this procedure is utilized?

  20. To get back to the original point– that the students defended the decision, and Jonathan’s stupefaction at that. I think JMG’s starting in the right place. These students are mostly in their mid-20s, which means they probably started noticing the world in the late 90s. They are partly the children of 9/11. But they are even more the children of Newt Gingrich, Rush Limbaugh, gw bush, and perhaps Glenn Beck (though he’s probably too new a phenomenon to have had that much impact on them). I mean this in terms of tone and ways of speaking about the world, much more than content.

    Their experience of public and government life is basically seeing very loud people attempt to stir easy prejudices and pander to those prejudices. Right now it happens to be Islam and Muslims. In our not-too-distant past, before WWII and the Cold War generated enough pushback to drive these prejudices out of public life, it was Japanese, Chinese, Armenians, Hispanics, Filipinos (that’s just in California), Jews, Catholics, Mediterranean and East European immigrants, Irish, etc, etc. And I don’t mean just sneering and invective. It took the Supreme Court to declare that Armenians were not Asians, thus enabling them to remain in the country and hold property (something Mark Krikorian, who I assume to be at least partly of Armenian extraction, should think carefully about). Even so, the powers that be in California deployed a number of legalistic restrictions to keep them out of Fresno and other similar beauty spots. (Really, is there a history of California that credits the Okie migration with increasing the proportion of whites there enough to calm them down and back off this kind of stuff?) And we won’t even talk about prejudices and assaults based on political opinions or activities related to labor organization.

    The key things for this generation of law students, imho, are two. First, the encouragement of such prejudices as they resurge into our public life isn’t local as it tended to be a century or so ago (Father Coughlin and radio in the 30s made this a pattern of regional and perhaps national extent).

    Second, these students haven’t seen much in the way of opposition. In part this is because of the habits and interests of the media, which really have no interest in presenting any opposing view to expressions that are so colorful and dramatic. And in part it’s due to the slow and un-fundamental response of people who oppose its resurgence. For those of us who grew up in a world where you not only couldn’t say things like that but where nobody with a shred of decency would want to, it’s been really, really hard to understand the return of this phenomenon. David Neiwert and a few others recognized it from the start, but for most of us I think it’s been like watching South Park– yes, they really did say that, but of course they’re being ironic and cool and don’t really believe it. They can’t. But in fact they do.

    So just where are these students supposed to have gotten any idea that maybe there could be something wrong in the way the court decided Korematsu?

  21. Like JMG, I had just started law school on 9/11/01. They had recently installed a new projection system, so my entire Criminal Law class sat and watched the towers collapse on the big screen while our professor (who’d survived Nazi occupation as a child) cried silent tears. Our Dean refused to cancel classes for the day, stating that as future lawyers it was important that we be good at focusing on the law even when horrible things are happening. When we studied Korematsu in the spring, there were a few people who were ok with it but overwhelmingly the response was negative and that was with fairly fresh wounds. I’ve had occasion to discuss Korematsu with more recent law school students and, really, even the Republicans still thought it was a bad decision for the most part.

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