43 Pages Posted: 19 Feb 2010 Last revised: 23 Feb 2011
Date Written: February 16, 2010
In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – and there is, again, a fear of those on our soil who resemble them or come from the same ethnic (and in this case, religious) group. Thus the principle of law Korematsu enunciated no longer constitutes a relic of a past era; rather, it raises real questions. Since we now face a foreign threat from an identifiable group, can the government act in ways that discriminate against that particular group, as it did in Korematsu? Can the government do this with no evidence of any particular wrongdoing by identifiable persons? It would have seemed hard to believe ten years ago that such questions might arise. But that was before September 11, 2001. Now, many believe that the time to dust off Korematsu, and to put its principles to work, has come. And contrary to widespread belief, Korematsu does not require a revival; it remains alive – “good law,” in legal parlance. Nothing in American constitutional law would keep any branch of government from relying on it.
Many jurists and scholars believe that no court today would ever use Korematsu to justify another internment. Unfortunately, the law does not support this view; regardless of what we wish were so, Korematsu remains a present reality, like the “loaded weapon” Justice Jackson knew it would be. Thus if we are to avoid a repetition of this dark chapter in our history, something besides the law must come into play.
This article argues that by looking not just at the law but at how Americans view Korematsu today, we see reasons to hope that, if faced with another large-scale terrorist attack, our institutions would not react the way they did in the early 1940s. Ironically, the basis for this assertion comes at least in part from the very damage that Korematsu itself caused in the 1940s, and the lasting impact it has had.
Keywords: Korematsu, Internment, Civil Rights, Equal Protection, Terrorism, Terrorist Attack, National Security, Profiling, Detention, Discrimination, Constitutional Law, 9-11, Executive Power, War Power
Suggested Citation: Suggested Citation
Harris, David A., On the Contemporary Meaning of Korematsu: 'Liberty Lies in the Hearts of Men and Women' (February 16, 2010). U. of Pittsburgh Legal Studies Research Paper No. 2010-03; Missouri Law Review, Vol. 76, No. 1, Winter 2011. Available at SSRN: https://ssrn.com/abstract=1554084