« Gun Control Targeting Dangerous Symptoms | Main | An Anatomy of the Death of the Kibbutz: Review of Amos Oz, Between Friends »

Thursday, October 30, 2014

A Mistake Regarding Korematsu

Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu.   Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes.  Here is what Ilya wrote:

"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision."   http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/

Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps.  http://korematsuinstitute.org/institute/aboutfred/  Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.

Second Ilya continues to defend Justice Thomas by saying Hamdi was an enemy combatant, unlike Korematsu.  But Justice Thomas's almost plenary authority language about executive power in wartime, and his stated aversion to judicial involvement, are inconsistent with limiting his view just to combatants.  In other words, Ilya makes a nice lawyerly distinction that does not make a difference in the analysis.  I have previously quoted some of Justice Thomas's language in Hamdi, and its breadth is stunning.  http://prawfsblawg.blogs.com/prawfsblawg/2014/10/justice-clarence-thomas-and-korematsu-the-sequel.html#more  Presumably this is one reason why he was alone in dissent.  Moreover, though not an enemy combatant, Fred Korematsu would have been a convicted wartime prisoner to Thomas as just mentioned.

Third high level American military authorities justified their discriminatory imprisonment of Japanese-Americans based in part on the risks of a supposed west coast invasion.  These were not just state or local prison officials. Thomas would have likely seen that danger (given who predicted it) as greater than, for example, the likely danger of an east coast Al Qaeda invasion of the same scope (which was never predicted).  Al Qaeda was, and is, horrific and enaged in an abominable attack, but Al Qaeda was not thought of as an invasion danger of the World War II scope.  That 's why I believe Justice Thomas would have been even more deferential to the government in World War II.

In my earlier post, I agreed with Ilya that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus."  But my response was not limited to a consensus situation.  Thomas often writes openly about his disagreement with precedent or with other commonly held views.  I think of Thomas's view that the Establishment Clause is not "incorporated" which he has written about.  Thomas showed no written reticence, however, in describing the Korematsu facts either in Fisher or Grutter. 

But my bottom line in this post is that Fred Korematsu was convicted, a prisoner, and would have had almost no rights in the Thomas view of wartime or prisoners.


Posted by Mark kende on October 30, 2014 at 02:49 PM in Constitutional thoughts | Permalink


"Thomas often writes openly about his disagreement with precedent or with other commonly held views."

I continue to find this a telling point. More than once justice expressly spoke of Korematsu with disfavor. Thomas cited it without such sentiments while pushing for a stronger executive power position than the other justices even when an American citizen was involved.

This is notable given his ready prevalence in separate opinions to opine about his disagreement with precedent, particularly when he thinks important constitutional principles are at stake. Hard to prove a negative, but it is a bit telling he doesn't do that here.

As to the correction, it looks like he is speaking in general. Korematsu was convicted for violating exclusion rules. The Japanese-Americans as a whole, however, were not criminals here if they followed regulations. Some small subset of those in these camps were similarly guilty of something illegal.

I reckon Thomas might think they could be treated differently. But, Korematsu to the sense we are concerned about it ultimately is about the majority -- the men, women, children who were in civil detention, who were not criminals. The second and third points are more convincing though I think reasonable minds might disagree, since we have to apply Thomas' words to much broader situations.

Posted by: Joe | Oct 30, 2014 10:52:41 PM

Dear Anon: Thanks for your comment. My main argument is that Mr. Korematsu was arrested, convicted, and imprisoned which is different from what Ilya had said. These places have been called everything from prisons to concentration camps to internment camps, etc., and they were also not all the same. As to whether a quarantine area (your hypo) is like a prison or not, it would depend on the facts. The point is that these individuals were moved a distance out of their homes, against their will, into a government run institution, where they had limited freedom and limited rights, for no good reason. This was no small temporary quarantine for a few days. Thanks again and all the best, Mark Kende

Posted by: Mark Kende | Oct 30, 2014 4:17:54 PM

I don't think you've rebutted Ilya's point that "the camps were not legally equivalent to prisons" by showing that Korematsu himself was convicted of refusing to follow the order to go to the camp. One can only assume that the vast majority of those in the camps went in response to the order, not in response to a conviction for failing to follow the order. If, hypothetically, a state were to require certain individuals to stay in a contained quarantine area for a number of days and someone refused to do so and was convicted of refusing to obey the law/rule/regulation requiring her to do so, her conviction doesn't magically transform the quarantine area into a prison.

Posted by: anon | Oct 30, 2014 3:22:28 PM

The comments to this entry are closed.