By George Will
Two of the three most infamous Supreme Court decisions were erased by events. The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.
The third, Korematsu v. United States (1944), which affirmed the president has wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology. Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for a Supreme Court repudiation of the Korematsu decision and other Japanese internment rulings. Such repudiation, if it occurred, would be unprecedented.
A harrowing week after the Boston Marathon bombings: One suspect in the Boston Marathon bombings died after a shootout with police, and a second suspect was arrested that night.
An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading in today’s context of anti-constitutional presidencies, particularly regarding war powers.
On Feb. 19, 1942, President Franklin Roosevelt authorized the military to prescribe military areas … from which any or all persons may be excluded. So some 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations. Supposedly, this was a precaution against espionage and sabotage. Actually, it rested entirely on the racial animus of Gen. John DeWitt, head of the Western Defense Command.
The 1943 Final Report on Japanese evacuation, prepared under DeWitt’s direction and signed by him, said a Japanese invasion was probable, that racial characteristics of Japanese Americans predisposed them to assist the invasion.When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, though one copy escaped DeWitt’s cover-up. The FBI, however, reported no information of any espionage activity ashore or … illicit shore-to-ship signaling. The Korematsu decision reflected perennial dangers: panic and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies.
It is less important that the decision be repudiated than that it be remembered. Especially by those currently clamoring, since Boston, for a U.S. citizen arrested in America and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network to be detained by the military as an enemy combatant. The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.
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