Explaining Korematsu: A Response to Dean Chemerinsky

Abstract

Dean Chemerinsky’s selection of Korematsu as one of the worst decisions ever reflects the consensus of constitutional law scholars. Indeed, I have previously commented that the Court sustained “seemingly blatant constitutional violations” that appeared to be “monstrously unlawful” and that “FDR’s internment of Japanese Americans is a stain on his legacy, an overreaction to Pearl Harbor that reflected racism more than military exigencies.” Alas, I have now been asked to play devil’s advocate by defending Korematsu.  I can hardly do so by praising the Court’s abstract legal analysis or moral wisdom. Instead, I will try to explain why Korematsu and similar decisions have been rendered throughout American history. 

My account grapples with a critical question that Dean Chemerinsky largely avoids: If Korematsu strikes us as clearly wrong, why did the Court fail to grasp this obvious point? The answer cannot be that Hugo Black and the five Justices who joined his opinion (including William Douglas) did not care about individual rights and liberties, for these liberal Democrats almost always sought to expand constitutional rights and vigorously protect them. Rather, the Court reacted the way it always has in a major war: by deferring to a strong and popular President who, with Congress’s support, had taken an action that he deemed militarily necessary, despite infringements of constitutional rights. Such results are commonplace because the Constitution assigns war powers exclusively to the elected branches and creates a Judiciary with limited competence to review their military decisions. Only by ignoring the Constitution’s institutional framework and its historical implementation can Dean Chemerinsky assert that the Court must uphold individual rights equally in times of war and peace. 

The foregoing themes will be developed in two parts. Part I will critically examine Chemerinksy’s proposed factors for assessing Supreme Court decisions, which improperly suggest that the Justices should creatively construe the Constitution on a case-by-case basis to achieve liberal social results. Part II will explain Korematsu in light of the Constitution’s political and institutional arrangements, which throughout history have typically led the Court to yield to the President and Congress during wartime.