Korematsu v. United States

[I spent the winter writing songs about getting better]

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/korematsu.html

Wrong decision, and one of the worst ones the Court ever issued.

[nini2287]

You must be logged in to read this quote.

[The Duke]

I can't say I agree with Korematsu.

[??????????]

Option 1

[Jake]

Solid decision and an example of the proper response of courts in wartime.

[Emsworth]

Horrendous decision. The Supreme Court simply ignored the habeas corpus clause, the Fourth Amendment, the Fifth Amendment, and the separation of powers.

[Alcon]

Horrendous decision. The Supreme Court simply ignored the habeas corpus clause, the Fourth Amendment, the Fifth Amendment, and the separation of powers.

[A18]

As much as people like to focus on Korematsu, it was simply the natural result of the unanimous Hirabayashi v. United States.

Justice Roberts's point about contradictory proclamations was as dubious as the "substantive due process" doctrine that supposedly made it relevant.

Justice Jackson focused on the racial discrimination element and harshness of the measure. What the first has to do with anything, I'm not sure. The latter matters only if one believes that the federal government is restrained by its enumerated powers, and must, under the Necessary and Proper Clause, show a means-end fit. Since Jackson shared in the New Deal Court's silent denial of the enumeration principle, this second point is also irrelevant.

Justice Murphy, as usual, was the most passionate dissenter. "[T]o infer that examples of individual disloyalty ... justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights." Of course, Korematsu was not being treated this way for the crimes of other individuals, but because of his race.

Murphy's point was that the measure was racially discriminatory to an extent that could not survive strict scrutiny. The argument that there was no time to "treat ... on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry," he wrote, was refuted by the facts: "Nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these 'subversive' persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed."

Thus, Murphy concluded, "the order deprive[d] all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment."

There is only one problem with this argument: there is no such provision.

[Emsworth]

Thus, Murphy concluded, "the order deprive[d] all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment."

There is only one problem with this argument: there is no such provision.

This sounds like a precursor to the Bolling v. Sharpe.

It is true that none of the dissenters made valid arguments. For example, one could have easily pointed out that the federal government had deprived Korematsu of liberty without due process of law: he was imprisoned pursuant to an executive order, not an Act of Congress. Even more clear is the Fourth Amendment argument: the internment of the Japanese clearly constituted an unreasonable seizure.

[A18]

Was there no statute involved? I know in Hirabayashi, the Congress effectively ratified FDR's action by imposing penalties and such.

[Emsworth]

Was there no statute involved? I know in Hirabayashi, the Congress effectively ratified FDR's action by imposing penalties and such.

If I recall correctly, there was a statute allowing the Secretary of War to exclude individuals from "military zones." I am not aware of any statute authorizing internment, although I may be wrong.