The Beltway, War and Civil Liberties

With the Newsweek-led drive to mainstream "What Dick Did", it is important to remember that the Beltway and Newsweek have no grasp of history. This morning on Joe Scarborough's show, Newsweek Managing Editor Jon Meacham demonstrated his feeble grasp of the history regarding Lincoln, the Civil War and civil liberties. I addressed that here. In addition, FDR's name was also thrown around as an example to follow. You see, according to Newsweek, Korematsu was one of the great moments in American jurisprudence, not a shameful chapter in our history.

But the interesting thing is "Dick" did not even pass the Korematsu test. I'll explain why on the flip.

Korematsu involved the FDR Administration's policy, approved and authorized by the Congress, to inter Japanese-Americans in detention camps. Outside of William Rehnquist, most American historians and legal scholars consider Korematsu one of the most shameful chapters in the history of the United States, especially in the history of the United States Supreme Court. With Plessy and Dred Scott, Korematsu is one of the most infamous decisions in the history of the Supreme Court.

What did Korematsu decide? Justice Black, wrote the majority opinion:

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. . . .

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that

". . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense."

As you can see, one major difference between "What FDR Did" and "What Dick Did" was that FDR went to Congress and had a law passed. the truth is that law was unconstitutional, but there is clearly something different about what FDR did in the light of day and what Dick did in the dead and secrecy of the night. Perhaps Jon Meacham might want to learn that fact. Or perhaps not. In any event, the Supreme Court in Korematsu failed. Justice Black wrote:

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as Commander in Chief of the Army, and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In Hirabayashi, the Supreme Court of the United States upheld a curfew statute passed by the Congress and administered by the President aimed expressly and solely at Japanese-Americans. It was a triple failure of our government and our people and an everlasting stain on FDR, on the leading Congressmen of the time and on those Justices who voted in the majority in Hirabayashi and Korematsu. Justice Robert Jackson dissented in Korematsu:

MR. JUSTICE JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four -- the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole -- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress, in peacetime legislation, should enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the "law" which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that, if the military commander had reasonable military grounds for promulgating the orders, they are constitutional, and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander, in temporarily focusing the life of a community on defense, is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

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 argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U. S. 81, when we sustained these orders insofar as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case, we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said:

"Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew."

"We decide only the issue as we have defined it -- we decide only that the curfew order, as applied, and at the time it was applied, was within the boundaries of the war power."

And again: "It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order." 320 U.S. at 320 U. S. 105. (Italics supplied.) However, in spite of our limiting words, we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that, in Hirabayashi, we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely, and if that, we are told they may also be taken into custody for deportation, and, if that, it is argued, they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

Of course, the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

My duties as a justice, as I see them, do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.

(Emphasis supplied.) I assure you that Jon Meacham and his Newsweek cohorts have not read Justice Jackson's dissent in Korematsu.

Speaking for me only

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  • Display: Sort:
    I would add GORE vs. BUSH (5.00 / 1) (#2)
    by kenosharick on Tue Jan 13, 2009 at 04:28:50 PM EST
    to your list of shameful episodes in Supreme Court history.

    I would add Bowers v. Hardwick (none / 0) (#4)
    by andgarden on Tue Jan 13, 2009 at 04:32:53 PM EST
    I'm sure we could all come up with something.

    Buck v. Bell (none / 0) (#5)
    by eric on Tue Jan 13, 2009 at 04:44:31 PM EST
    O.W. Holmes opinion, sadly.

    The problem is (5.00 / 1) (#3)
    by Steve M on Tue Jan 13, 2009 at 04:32:38 PM EST
    it is exceedingly hard to find examples in our history where the courts have said no to the President during "a time of war."  Ex Parte Milligan, for example, was not decided until after the war.  When the courts confront tough issues while the war is still ongoing, you typically end up with stuff like Korematsu and Ex Parte Quirin.

    The Steel Seizure Case is a notable exception, where the court simply did not buy the argument that the presidential act had anything to do with war powers.  And Justice Jackson's famous concurrence formalized an exceedingly practical consideration: in the real world, it is very very hard for the courts to go against both elected branches on a matter of urgent concern.  On the other hand, where Congress has already taken issue with the President, it's much easier for the courts to step in and take Congress' side.  While Jackson's concurrence is routinely cited as a legal doctrine, it's actually a very pragmatic statement of political reality whether he couched it that way or not.

    Meacham et al (5.00 / 1) (#6)
    by Alien Abductee on Tue Jan 13, 2009 at 04:47:15 PM EST
    can't seem to distinguish a strong chief executive from a lawless one. They want to argue that what was done the past eight years was more a failure of style or tone than substance:

    The flaw of the Bush-Cheney administration may have been less in what it did than in the way it did it--flaunting executive power, ignoring Congress, showing scorn for anyone who waved the banner of civil liberties.

    Sure the country needs a strong chief executive, and not just in times of war and crisis. It needs three strong branches, all upholding their proper functions. But what is strong, and what does it mean to be a strong chief executive? I would say it's being able to uphold and adhere to the principles of the constitution even when the country is under the severest threat, not trampling them out of convenience or panic.

    Both this and your "War" and Civil Liberties post are excellent. Thank you.

    Jackson's dissent is very well written (none / 0) (#1)
    by andgarden on Tue Jan 13, 2009 at 04:23:16 PM EST
    The Court really blew it on that one.