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Thursday, November 17, 2016

Justice Jackson on Japanese Internment

Earlier today, a Donald Trump supporter, Carl Higbie, spoke out in favor of Trump's plan to register Muslims, and cited the infamous Korematsu v. United States decision as "precedent" for this plan. Here's the video:

Higbie's statement has been rightly condemned here and as reported here, although it is worth noting that Korematsu has never been overruled. Higbie's statements lend a disturbing relevance to this portion of Justice Jackson's Korematsu dissent:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle 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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.
It is a dangerous policy that draws its support from Korematsu, and the fact that Justice Jackson's dissent appears increasingly prescient is a disturbing feature of the current political climate.