Monday, January 30, 2017

Happy Birthday, Fred Korematsu

Right about now in the spring semester, my Constitutional Law class reaches the case of Korematsu v. United States, 323 U.S. 214 (1944), in which the U.S. Supreme Court upheld the criminal conviction of Fred Korematsu, an American citizen who resisted relocation to an internment camp.  In reviewing the criminal law, a six-member majority of the Court found that strict scrutiny applied to its review, yet upheld the law.  According to the Court, "[p]ressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."  The Court concluded that these measures were not race-based, but necessitated by the dynamics of World War II.  This year, in particular, my students want to know, "is Korematsu still good law?"

The Korematsu case has never been reversed, but most scholars and judges consider it to be discredited -- part of the anti-canon, as Professor Noah Feldman put it in a recent New York Times op-ed.  No wonder, then, that alarm bells sounded when Trump acolytes began to invoke Korematsu as precedent that would support restrictions on Muslims and others based on race, religion and national origin.  

January 30 is Fred Korematsu's birthday.  Through the Korematsu Institute for Racial Justice, Social Equity and Human Rights, his family carries on his legacy as a brave individual citizen willing to speak truth to power.  If your day-to-day routine makes it hard to prioritize individual acts of resistance, think about purchasing the Institute's 2017 calendar.  It will provide a daily reminder of the importance of taking action to ensure that we do not go back to a time when the federal government and the Supreme Court could find that such race-based restrictions were constitutionally permissible.

In a 2014 speech to University of Hawaii Law Students, Justice Scalia responded to a question about the Korematsu case like the one posed by my own students:  is it good law?  "It was wrong," he opined, "but you're kidding yourself if you think the same thing will not happen again."

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