12/7 and 9/11: War, Liberties, and the Lessons of History

Abstract:     
In this essay, originally presented as the Edward G. Donley Memorial Lecture at the West Virginia University College of Law in February, 2002, Muller compares the Roosevelt administration's domestic policies affecting Japanese Americans after the attack on Pearl Harbor with the Bush administration's domestic policies affecting people of Arab ancestry and Muslim faith after the September 11 attacks on the World Trade Center and the Pentagon.

U.S. Supreme Court Justice Robert Jackson, dissenting in the 1944 Korematsu case, predicted that the Court's opinion upholding the eviction of 120,000 Japanese Americans from the West Coast would "lie about like a loaded weapon," threatening future generations. Canvassing the Bush administration's post-September 11 policies touching on race and ethnicity, Muller finds a healthy measure of restraint - a significantly greater measure of restraint than the Roosevelt administration showed in the days after Pearl Harbor, and, more interestingly, a significantly greater measure of restraint than has marked the Bush administration's post-9/11 policies that do not touch on race and ethnicity.

Muller challenges the oft-heard assertion that the Bush administration's policies repeat the mistake of Korematsu, and speculates that recent events may show that the racist assumptions that underlay the Roosevelt administration's policies have been pushed to, or even beyond, the fringes of acceptable policy discourse, even in times of crisis.

Number of Pages in PDF File: 23

Keywords: War, constitutional liberties, Korematsu, internment, terrorism

Accepted Paper Series