It's not new -- worries that a civil rights violation as outrageous as the wholesale internment of Japanese-American citizens in World War II might happen again and, once again, be upheld as constitutional. But it's news when a U.S. Supreme Court justice issues the same warning. Justice Antonin Scalia sounded the warning to University of Hawaii law students with typical rhetorical flair --“Inter arma enim silent leges … In times of war, the laws fall silent.”
The infamous decision upholding the internments is Korematsu v. United States. The State Bar of Michigan's legal milestone program celebrates the dissent of Justice Frank Murphy with this plaque, mounted at Murphy's summer home in Harbor Beach:
A hostile climate confronted Americans of Japanese descent following the attack on Pearl Harbor that led to United States' entry into World War II. Despite their loyalty and distinguished service in our armed forces, Japanese Americans were considered suspect simply because of their ancestry.
Against this backdrop of racial discrimination, Harbor Beach native Frank Murphy, then a justice of the United States Supreme Court, spoke forcefully for the rights of all Americans by dissenting from a decision that upheld the exclusion from certain areas and forced internment of 112,000 persons of Japanese descent.
Fred Korematsu was a young Japanese American who was ordered by the military to leave his home and report to an internment camp. In 1944, a United States Supreme Court majority upheld his exclusion as a valid exercise of military authority.
In his dissent, Justice Murphy condemned the majority's decision and rejected its reasoning. Justice Murphy wrote that the decision was nothing more than the "legalization of racism" and concluded, "Racial discrimination in any form 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."
Although the country has repudiated the internments in several ways -- in 1983, Korematsu's conviction for resisting his internent was overturned, in 1988 Congress apologized for the internments and voted to compensate those still alive who had been forced into internment camps during World War II, and in 1998 President Clinton awarded Korematsu the Presidential Medal of Freedom. But the Korematsu decision has never been overturned. Last month the lawyers who successfully appealed Korematsu's conviction exhorted Solicitor General Verrilli to take advantage of a case now pending before the U.S. Supreme Court as a vehicle to overturn Korematsu. SCOTUSblog's Lyle Denniston describes the case and the opportunity it presents.
Photo: By Russell Lee, "Tagged for evacuation, Salinas, California, May 1942." Farm Security Administration - Office of War Information Photograph Collection, Library of Congress, Reproduction Number: C-USF34-T01-072499-D.