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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

The more promising textual basis for holding the exclusion and internment as unconstitutional is that they exceed Congress’s enumerated powers. But this path is not open to the major nonoriginalist critics of Korematsu, since they embraced extremely broad national powers. Thus, those critics are not able to argue that the original basis for protecting civil liberties in the federalist structure of the Constitution is what protected against the Japanese exclusion and internment.

What power allowed either the Congress or the President to exclude and intern Japanese citizens without any substantial evidence that these individuals were dangerous? Congress has the power to declare war, to define and punish offenses against the law of nations, and to make rules for the armed forces. But the original meaning of none of these powers allows for the federal government to exclude or intern an entire race of citizens without substantial evidence of their being dangerous.

Nor does the President’s commander in chief power allow him to do it. Excluding and interning these citizens did not involve the movement of armies in a war zone. The President is commander in chief of the armed forces, not of the nation.

Presumably, Congress would claim that it is exercising its power to take necessary and proper measures to declaring war – to engage in the successful pursuit of the war. But this argument is problematic. Congress cannot simply do whatever it pleases if it believes that this will promote the war effort. It no more has this power than it has the power to do whatever it pleases if it believes that this will influence interstate commerce. The enumerated powers have real limits.

It is true that Congress does have significant power under its necessary and proper authority to conduct a war. Congress can certainly pass a law that prohibits and punishes the actions of enemy spies or saboteurs who come into the country during wartime. But that is clearly distinguishable from the exclusion and internment. The law would prohibit the actual spying or sabotaging. One might possibly – although not certainly – say that Congress could take preventive measures that restricted the actions of people who were suspected with some evidence of engaging in wrongdoing. But that would be as far as one could go. That view would not allow Congress to exercise authority as to all Japanese, nor could Congress use it for mass exclusions and internments.

Of course, this position requires the courts to draw a line under the Necessary and Proper Clause. And therefore the New Deal coalition could never endorse this view. The New Deal ended up supporting the Korematsu decision (6 of the 8 Justices appointed by Roosevelt were in the majority) and the dissenters disapproved the ruling based on a made up constitutional right.

Reader Discussion

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on April 07, 2015 at 14:23:13 pm

You described it as "the exclusion of Japanese from such a large area without any individualized suspicion" doesn't this suggest that the real problem was a due process one? That these individuals should have been given procedural due process of being presented with a crime that they had done before their liberty of movement was restricted?

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Devin
on April 07, 2015 at 17:20:05 pm

" It no more has this power than it has the power to do whatever it pleases if it believes that this will influence interstate commerce."

Really? Uh oh, someone better tell the Supreme Court this as it seems to have missed this point for the past 80 years..

Interesting take on the Fed Gov't and due process under the 14th - but how about under the 5th?

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gabe
on April 08, 2015 at 11:32:31 am

Japanese Citizens or American citizens of Japanese descent?

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R Richard Schweitzer
on April 08, 2015 at 12:10:15 pm

Thanks, Mike, for this concise account. Gabe: precisely on account of national security concerns the Fifth and the 14th should not be construed identically. Racial/ethnic profiling may be perfectly constitutional under the 5th but dubious under the 14th. My further reflections on the ethnic Japanese exclusion here: http://www.libertylawsite.org/2013/05/08/lessons-from-the-ww-ii-japanese-relocation/

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Ken Masugi
on April 08, 2015 at 14:04:44 pm

1/3 were resident aliens, like my father, and by Japanese law were still Japanese nationals. Under American law they could not be naturalized. 2/3 were citizens (like my mother) often quite young (like my cousins).

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Ken Masugi
on April 08, 2015 at 21:26:55 pm

9th Amendment?!? Why is that of no value? 4th Amendment? 5th Amendment?

Although the 14th doesn't strictly apply, it shouldn't have to do so, because the Feds have virtually no power of STATE citizens and residents. We just assume TODAY that they do, because they always have in our experience. But I don't see any kind of power to be going into any state at all to do these kinds of things, be it this, or selling marijuana or whatever.

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John Ashman
on April 09, 2015 at 00:22:51 am

This is the problem with civil rights vs natural rights. Civil rights can be given, they can be taken away. They are only as good as the people responsible for administering them.

The problem is, the right doesn't fight for natural rights, because they too, would like to be able to infringe the inalienable rights of the people in various different ways.

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John Ashman
on April 10, 2015 at 08:42:57 am

"Due Process of Law" was always thought to have an "anti-class legislation" component,which would apply to executive action as well. Nothing non-originalist about relying on the component of due process. The problem in 1944 was that the Court had already eviscerated that aspect of due process in an attempt undo the due process rulings of the pre-New Deal Court.

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David Bernstein
on April 14, 2015 at 04:16:06 am

"Korematsu was rightly decided" --Richard Posner.

In the official report, authored by Navy Lieutenant C. B. Baldwin and dated January 26, 1942, Baldwin wrote, "The fact that the two Niʻihau Japanese who had previously shown no anti-American tendencies went to the aid of the pilot when Japanese domination of the island seemed possible, indicate likelihood that Japanese residents previously believed loyal to the United States may aid Japan if further Japanese attacks appear successful."[
http://en.wikipedia.org/wiki/Niihau_Incident

We do not know, and will never know, the internment of the Japanese hampered Japanese intelligence. But given the severity of Japanese intelligence penetration of the United States, internment was justifiable on intelligence grounds alone.

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Shalom Beck
on April 14, 2015 at 10:34:23 am

Thank you, Shalom Beck for that information. The Niihau episode cast a long shadow over the relocation. Opponents of the action almost never mention it and deny it the significance it had at the moment and should have to us looking back at WW II.

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ken masugi

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