Friday, March 30, 2018

Korematsu v. United States is applied social justice philosophy

From Korematsu v. United States, Wikipedia.
Korematsu v. United States, 323 U.S. 214 (1944), was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship.

In a 6–3 decision, the Court sided with the government, ruling the exclusion order was constitutional. Six of the eight appointees of President Franklin Roosevelt sided with Roosevelt. The two others and the lone Herbert Hoover appointee, Owen Roberts, dissented.

The majority opinion was written by Supreme Court justice Hugo Black and held that the need to protect against espionage outweighed the rights of Americans of Japanese descent, such as Korematsu. The Court limited its decision to the validity of the exclusion orders: "The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding."
One of the great stains on our jurisprudence. It was an understandable decision (there was a perceived existential threat) but never justifiable.
Constitutional scholars like Bruce Fein and Noah Feldman have compared Korematsu to Dred Scott v. Sandford and Plessy v. Ferguson, respectively, in arguing it has become an example of Richard Primus's "Anti-Canon", a term for those cases which are so flawed that they are now taken as exemplars of bad legal decision making. The decision has been described as "an odious and discredited artifact of popular bigotry" and as "a stain on American jurisprudence". Feldman summarized the case's "uniquely bad legal status means it's not precedent even though it hasn't been overturned".
This is not a case of differences in time and attitudes. Justice Murphy, in his dissent, was very explicit, making the argument as we might today.
Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism", and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy". He also compared the treatment of Japanese Americans with the treatment of Americans of German and Italian ancestry, as evidence that race, and not emergency alone, led to the exclusion order which Korematsu was convicted of violating:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. 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.
Justice Robert Jackson, also dissenting from the majority, acknowledged the general distinction between civil and military law and the exigencies of military decision-making. He acknowledged it and rejected it as a justification for a decision so contrary to our fundamental beliefs.
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. [...] [H]is 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. 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 peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
Wonderful words.

Jackson is so explicit that race counts for nothing in consideration of justice, that there is one law for all citizens and that there is no room for heritable guilt or collective guilt in our national philosophy that it serves as a striking reminder what a danger social justice postmodernism represents to the Classical Liberal philosophy.

For the postmodernist, group identity trumps the individual, racial identity is inherent, there is heritable guilt (and privilege), and the law is expedient and selectively applied. Korematsu v. United States is a perfect example of the application of social justice philosophy and would be championed rather than reviled.

Social Justice yields Korematsu v. United States as the product of its philosophy. Classical Liberalism gives you Korematsu v. United States as the Anti-Canon. An acknowledged mistake.

No comments:

Post a Comment