“Well of course Korematsu was wrong.” Scalia said, referencing a pro-internment Supreme Court case. “And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.”
Scalia was referring to the infamous case Korematsu vs. United States in 1944. In that case the court ruled that President Franklin D. Roosevelt had the authority to prosecute Japanese American citizens who refused to report to internment camps during World War II.
What is the Korematsu Decision and Why Should You Be Scared of It?
Here is how Supreme Court Justice Owen J. Roberts, who was on the court in 1944, described the Korematsu case in his dissent:
“It is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”
The Korematsu case began in May 1942 when federal authorities ordered people of Japanese descent living on the West Coast to report to what were called relocation camps or assembly centers for reasons of “national security.” The popular term for such facilities in the 1940s was “concentration camp.” No effort was made to give those “evacuated” any sort of hearing or due process.
Roosevelt’s rationale for the action was that the United States was at war with Japan and that Japanese Americans were a threat to national security. The United States was also at war with Germany and Italy but only a handful of German and Italian Americans were interned.
A Japanese-American named Fred Korematsu refused to go along with the order and was arrested. After his arrest Korematsu appealed on the grounds that Roosevelt’s action was unconstitutional because it violated the Fifth Amendment to the Constitution. The Fifth Amendment makes imprisonment without trial illegal in the United States. Korematsu was convicted and the case was appealed to the Supreme Court.
What the Supreme Court Did
In November 1944, six Justices of the Supreme Court upheld Korematsu’s conviction in a case that was seen to justify the internment. Three justices refused to go along with the majority and rejected the government’s rationale. One of them, Robert Jackson, had some very interesting things to say about Korematsu.
“No claim is made that he is not loyal to this country,” Jackson wrote in his dissent. “There is no suggestion that apart from the matter involved here he is not law-abiding and well-disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”
Jackson was arguing that that the Roosevelt administration had presented no evidence to justify its actions. Yet the court upheld it, because of wartime panic, as Scalia noted.
“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot,” Scalia said of Korematsu. “That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.”
Panic and Internment
Scalia’s belief is that panic could lead the public to accept and courts to uphold internment in the future. He isn’t the only Supreme Court justice to believe that internment could occur again. In a book in 1998 late Chief Justice William H. Rehnquist wrote:
“There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”
Rehnquist was referring to Abraham Lincoln, who ordered Confederate sympathizers imprisoned without trial during the Civil War, and Woodrow Wilson whose administration prosecuted and imprisoned Socialist Party leader Eugene V. Debs for “espionage” during World War I. Debs’ crime was to exercise his First Amendment right by making speeches against the war.
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