Korematsu and the dangers of waiving Constitutional rights

The third, Korematsu v. United States (1944), which affirmed the president’s wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology. Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for a Supreme Court “repudiation” of the Korematsu decision and other Japanese internment rulings. Such repudiation, if it occurred, would be unprecedented. …

An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading in today’s context of anti-constitutional presidencies, particularly regarding war powers. …

The FBI, however, reported “no information” of “any espionage activity ashore or . . . illicit shore-to-ship signaling.” The Federal Communications Commission investigated “hundreds” of reports of suspicious radio communications but found nothing to confirm DeWitt’s accusations. Yet Fahy in his oral argument assured the court he could guarantee the veracity of “every line, every word, and every syllable” of DeWitt’s report, and that “no person in any responsible position has ever taken a contrary position.”

The Korematsu decision reflected perennial dangers: panic and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies.