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Kathleen E. Cross
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“The liberty of every American citizen freely to come and go must frequently, in the face of sudden danger, be temporarily limited or suspended.”
This is not a quote from President Bush as he addressed the Congress and the Nation in the wake of the devastation of September 11, 2001, although it might have been. This is not a quote from Attorney General Ashcroft as he promoted legislative initiatives to expand the government’s investigative arsenal against the perpetrators of terrorism in this country, although it might have been. In fact, these words are almost 60 years old. Interestingly, they were authored by Justice Owen J. Roberts in 1944 dissenting from the Supreme Court’s decision that affirmed the conviction of Toyosaburo Korematsu, a Japanese American man whose crime was his failure to report to a detention center as ordered in the months following Japan’s attack on Pearl Harbor.
As the United States again finds itself in the grip of a ruthless attack on its people and its freedoms, there are two lessons for our system of justice embodied in the impassioned dissents of Korematsu v. United States, 323 U.S. 214 (1944). The first is the more obvious of the two and has been recognized in the course of our subsequent history. Over 100,000 citizens and legal aliens of Japanese descent were confined to internment camps from 1942 to 1946 merely for the fact of their shared ancestry with the Japanese who bombed Pearl Harbor. These people demonstrated no disloyalty to the United States, and not one was ever convicted of such an offense. As Justice Frank Murphy reminded in his dissent to Korematsu, “All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.” Korematsu, 323 U.S. at 242.
The digression from democracy represented by the internment camps has since been recognized as a shameful overreaction in a time of near national panic. Mr. Korematsu’s conviction for failing to report to his designated internment camp was revisited in 1983 by a federal court in California and overturned, finding the rules for his internment unjustified. The federal government has made an effort by way of the Civil Liberties Act of 1988 to compensate interned Americans for the damage to their lives caused by their drastic uprooting.
The most valuable legacy of the internment camps, however, has been the insight and sensitivity evidenced by our government and our people over the past weeks, resisting the wholesale condemnation of a vast population of Muslim Americans because of the acts of a few claiming a common religion. Despite the unfathomable loss we have suffered, we continue to affirm as a nation, individually and collectively that, “if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.” Korematsu, 323 U.S. at 243 (Jackson, J., dissenting).
The second lesson of Korematsu is the enormous responsibility of our courts of justice in times of crisis. While all justices recognized the exigencies demanded by the national military emergency in December of 1942, as demonstrated by Justice Roberts’ words above, the dissenters in Korematsu warned that setting aside the Constitution in the name of national security would deteriorate the essentials of our democracy, “like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.” Korematsu, 323 U.S. at 234 (Murphy J., dissenting).
Justice Jackson in particular emphasized the potent indelibility of judicial approval. “A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes a doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.” Korematsu, 323 U.S. at 246 (Jackson, J., dissenting).
As the highest court of our land, the Supreme Court, began its new session this first Monday of October, the country continued its campaign to bring to justice those responsible for the events of September 11, 2001, and systematically contain terrorism worldwide. The tools that we create in legitimate haste for protecting our nation will be subject to judicial scrutiny in the months and years to come.
To our credit, the legacy of judicial scrutiny and Constitutional vigilance of our courts since 1944 has now shaped a national debate much different in form and character than that attendant to Pearl Harbor. There has been no rush to judgment against a people of a certain ancestry or religious credo. The legislature has been appropriately circumspect, while it strives to provide law enforcement with the legal and financial enhancements necessary to fight a type of war with which we have little experience. Despite our instinctive and immediate need for justice, the response of our executive and our legislature has been measured, with an overarching concern not just to get it done, but to get it done right. The courts of our country, while yet to pass judgment on the country’s nascent response to these attacks, will have had a silent but definite influence on the dialogue of our response. Senator John Edwards (D — N.C.) remarked recently on the raging congressional debate regarding expanding legal wiretaps, “[t]he expansion of FISA [Foreign Intelligence Surveillance Act] is a good idea. But we are going to have to make sure we are doing it within the limits of the Constitution.”
The dissenting justices of the Korematsu Court would surely be amazed that our citizens’ view of justice has now embraced what were then minority principles and which have come to stand as hallmarks of our freedom.
