by Matthew Stanford
Though widely considered a dark stain on the fabric of American history, the Supreme Court’s decision in Korematsu v. United States more than 70 years ago lives on. In Korematsu, the Supreme Court upheld President Roosevelt’s executive order for the internment of Japanese Americans during World War II. Today, the decision’s influence moves virtually undetected through the parlance of executive authority. The immense power of the president in times of “emergency and peril” has affixed itself to our constitutional DNA. The imperial presidency is not just taken for granted. It is assumed.
The thought of another Korematsu is not far-fetched. The current administration cites an always-imminent threat of terrorism to support a religiously motivated travel ban, a supposed spike in violent crime to expand stop-and-frisk in minority neighborhoods and an invisible invasion of drug dealers and rapists from our southern border to justify mass deportation. If we are to avoid repeating history, progressives cannot afford to be short-sighted. Political victory alone does little to mend the constitutional wounds that Korematsu left behind.
Critics of the Supreme Court decision often cite the depth to which then-Governor Earl Warren would later come to regret allowing the “cruelty of war” to cloud his better judgment. As if to say things would be different today. Regret, however, does not erase the past, much less Korematsu’s abiding tear in our constitutional fabric. Indeed, Justice Hugo Black, the opinion’s author, maintained decades later that he “would do precisely the same thing today.” And former Chief Justice William Rehnquist minced no words about executive authority to limit civil liberties being at its nadir “in time of war.”