Archive for November, 2011

Over on a distant corner of the Internet, Michael Ramsey offers an interesting insight into his law class’s legal textbooks and the case of Korematsu v. United States from an originalist point of view.  His post is interesting as it takes to task the orthodox view that the case was an Equal Protection case gone awry.  I find this orthodoxy curious, in no small part because I’ve never thought of Korematsu as having a great deal to do with Equal Protection at all.  That said, I find the author’s post equally curious because, although he quickly discards Equal Protection as a “correct” answer on technical grounds (by its terms, the Equal Protection Clause of the 14th Amendment doesn’t apply to the federal government), he supplies an argument against the Court’s decision that uses a form of Equal Protection masquerading as Due Process, and somehow calls that view “originalist.”  Perhaps it’s good that I’m not one of his students, because that line of reasoning makes no sense to me.  In my view, Korematsu is a Due Process case, plain and simple.

The Fifth Amendment states that “No person shall be … deprived of  life, liberty, or property, without due process of law.”  It’s incontestable that the Japanese-Americans rounded up during World War II would qualify as “persons” under this amendment; the people in question were in the country lawfully, and many were US Citizens.  It should be equally unthinkable that placement into internment camps would be anything other than a deprivation of liberty.  Unlike its cousin in the 14th Amendment, the Fifth Amendment applies with full force to the actions of the federal government.  The only relevant question, then, is whether the Japanese-Americans were afforded Due Process; a prospect that seems unlikely at best.

Although the Constitution doesn’t spell out a precise definition of Due Process, it has several basic contours that are reasonably well accepted.  In general, Due Process requires that a person be charged against the laws of the United States, enacted by Congress under its Article 1 Section 8 authority.  Due Process also normally requires the government must show individualized cause for why a person should be confined; normally by use of a trial.  In a criminal context, Due Process also requires compliance with the protections of the Fifth and Sixth Amendments, but this was not fundamentally a criminal case.

For the actions taken by the government during World War II, the second criteria — individualized cause — was entirely missing.  In establishing internment camps and exclusion zones, the government issued a simple decree that applied to all persons of Japanese descent living in the United States.  Under that decree, all such persons could be obligated to report for confinement simply due to their ancestry.  The deprivation of liberty was made without reference to individuals at all.

What’s more, the exclusion orders, which would operate to remove Japanese-Americans from their homes, would seem to be a 4th Amendment seizure of either persons or property without probable cause.

Finally, setting aside the text of the Constitution and turning to its history, Korematsu is still very hard to defend.  From the viewpoint of the British Crown, the Rebels were in many ways what the government believed the Japanese-Americans might be during World War II: A seditious force.  The difference, of course, is that the Rebels actually were a seditious force, whereas the Japanese-Americans were not.  Regardless, the Founders bristled at efforts by the Crown to round up and silence their dissenting voices.  Arbitrary arrests, ad-hoc procedures, and other evils conceived by a government to subjugate a people perceived as disloyal animated the Founders’ inclusion of specific protections for the people against their new government.  It isn’t logical to imagine that the Constitution, which includes protections for the Founders’ actually seditious behavior, would not protect the Japanese-Americans who weren’t being seditious at all.  That history, of course, predates Equal Protection by nearly a century.

It seems, then, that there is no shortage of originalist reasoning against the Korematsu decision both from the Due Process Clause and from the Constitution’s history.  Equal Protection need not apply.