Today in Supreme Court History: August 11, 1942

8/11/1942: General John DeWitt, Commander of Western Defense Command, issues exclusion order. The Supreme Court held this order was constitutional in Korematsu v. United States.

Comments

[Martinned]

I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.” In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I.

https://www.bailii.org/uk/cases/UKHL/1941/1.html

[DaivdBehar]

The Lothar Kreyssig should be better known in the lawyer profession. He issued an arrest warrant for murder for the Nazi governor. That governor had been taking the mental defrctives under Kreyssig's supervision and killing them.

[Enrique]

Wasn't Korematsu "overruled" in dicta a few years back?

[Dan Schiavetta]

To the extent Korematsu involved "exclusion" (a typical Josh Blackman misemphasis) and not forced relocation into internment camps, it was in effect affirmed in Trump v. Hawaii, despite Roberts's strenuous attempt to say otherwise. Yes, the government can exclude people based on national origin. (At least if they're nonwhite.)

[Jimmy the Dane]

"I could make my point, but I also need to insert a needless strawman for dramatic effect...."

[Bob from Ohio]

"(At least if they’re nonwhite.)"

Does it get tiring to toss that race card?

[Krychek_2]

Bob, the problem is that in this country, everything is about race, and always has been. Until 1952 there was a statute on the books that precluded non-whites from becoming naturalized citizens, and there were quotas in place that achieved the same result until 1963. Tell me when, in our entire history, the people being excluded have been white. (Yes, I know, there was also discrimination by Northern European whites against Irish and Italians, but that's because they weren't considered white enough.)

[Jimmy the Dane]

Did you ever stop to think maybe you are living in the past to be so fixated on race? I know it is hard but think to yourself could humanity have changed in the 70 years to the point where maybe we don't need to look at everyone and everything through the lens of critical race theory....

[Dan Schiavetta]

I don't know why you deny that the travel ban was about race, when Trump loudly and publicly declared that it was about race.

[Bob from Ohio]

"Trump loudly and publicly declared that it was about race."

Prove it. Because he did not. Muslims are not a race so don't cite that.

The original ban applied to:

"all nationals of North Korea and Syria; nationals of Iran except on student or exchange visitor visas; nationals of Chad, Libya and Yemen as immigrants or on tourist or business visas; nationals of Somalia as immigrants; and to certain government officials of Venezuela"

Nationals of Iran and Syria are white, so are many from Libya and Yemen and Venezuela, though not all.

[LawTalkingGuy]

So he’s just a religious bigot then. And one who happened to focus that bigotry on countries that are overwhelmingly not white. And then his lawyers, self-admittedly, tried to craft a ban to put some of that bigotry into policy while surviving legal scrutiny.

[Don Nico]

He happened to focus on countries with a strong history of state-sponsored terrorism and/or a policy allowing harboring terrorists. As for religious bigotry it would be more honest to also mention the madrassas in those countries (no, not North Korea) that preach constant hate against the infidel, especially in America

[LawTalkingGuy]

Here's the thing. We have a whole timeline about how this happened. We have Trump, on tape, saying we need a complete and total shutdown of Muslims coming into the country. Then we had three iterations of this travel ban till we got the final one, and Rudy Giuliani on tape admitting that they were trying to find a way to make his original comment into something legal.

Trump trying to translate his clear bigotry into a policy all happened right in the open.

[Rev. Arthur L. Kirkland]

Attempting to reason with superstition, bigotry, and/or belligerent ignorance is beyond pointless; it is counterproductive.

[David Nieporent]

That is both disingenuous and wrong. The disingenuous part is, "Oh, technically that's not a race so technically it's just bigotry rather than racism."

The other disingenuous part is that Trump expressly declared it was a Muslim ban, and then administration lawyers reframed it to try to make it be something else. But that doesn't change what Trump did.

The wrong part is that you're not talking about the original ban. You're talking about what I think was the third iteration of the ban.

[Krychek_2]

I'm not entirely sold on critical race theory, but I do agree with its wholly unremarkable conclusion that since dealing with symptoms has not worked, maybe it's time to have a conversation about root causes, something you seem disinclined to do. Why are you so afraid of a discussion about root causes?

[Sarcastr0]

Jimmy, you talk about the oppressed white man a whole lot to ask others why they are so fixated on race.

[LawTalkingGuy]

I will believe that white conservatives aren't fixated on race when they can see a black author, professor, athlete, or student make some criticisms of society or comments on history without freaking out and trying to ban (er cancel?) them.

[Rev. Arthur L. Kirkland]

I will begin to considering caring about the opinions of White conservatives when (1) they become better people, taking better positions or (2) it appears they may resume competitiveness in (let alone reverse the chronic tide of) the American culture war.

[LawTalkingGuy]

Emmett Till would have just turned 80. Carolyn Bryant is still alive.

The oldest members of the Senate were born when people born into bondage were still alive. We have voice recordings produced in the 30s and 40s of former slaves.

The current Chief Justice clerked for a guy who said Plessy was right.

We have recordings of Republican hero Ronald Reagan comparing African diplomats to monkeys.

Things didn’t change magically in the 1960s. The people shouting at Ruby Bridges (who is also still alive) didn’t magically disappear. They lived long lives had kids and passed on their values. Those people are still around making society what it is.

And the people who proclaim that things suddenly changed in the 1960s also tend to be against the signature federal accomplishments from that era: the civil rights act, the voting rights act, and the fair housing act.

These thoughts are just some illustrations of the Faulkner quote: “The past is never dead. It's not even past.”

[Bob from Ohio]

"Things didn’t change magically in the 1960s. "

Who said they did?

Its not been the 1960s for over 50 years. Things have changed but you sadly refuse to recognize it.

Thee are Shoah survivors still alive, is Germany no different?

[LawTalkingGuy]

I think you sadly refuse to recognize that we are still dealing with the effects of our racist policies fifty years later (really 400 years later). Again, these people didn't go away and continued to influence culture and policy long after the sixties.

And you guys are SO invested in refusing to recognize it that you're telling on yourselves. Look at the 1619 Project. I mean it was such an over the top reaction to a black perspective on history that challenged the myths that white conservatives tell themselves about the Founding that it can only be explained by racial antipathy by white conservatives.

Or look at Tom Cotton's speech explaining why DC doesn't deserve representation but Wyoming does. Only someone lying to themselves would say race didn't have anything to do with it.

[LawTalkingGuy]

And as for Germany: they grappled with the Holocaust in the immediate aftermath. America by contrast told a bunch of lies to themselves about the Civil War and Reconstruction called "The Lost Cause" and then went on to pat themselves on the back about the Civil Rights Movement while ignoring pretty much everything about what was said then other than one MLK quote taken out of context.

[Bob from Ohio]

We grappled with it in the 1960s and have continued to grapple with it.

You just don't want to give anyone credit, the US is still an unchanged Alabama or Mississippi in 1960 to you.

[LawTalkingGuy]

“You just don’t want to give anyone credit, the US is still an unchanged Alabama or Mississippi in 1960 to you.”

This is a straight up falsehood. I would dabble in the more erudite strawman criticisms, but I’m just going to say you’re lying and are a liar since I know how comfortable you are with lies in public discourse so long as it helps you. Please stop lying about what I think.

Again I don’t think nothing has changed, I think that the attitudes of that era still affect us today including in the realm of public policy and those things need to be addressed. The civil rights movement wasn’t a full grappling, and you know who would agree? Pretty much every significant figure in the civil rights movement.

[Rev. Arthur L. Kirkland]

America has made progress, mostly against the wishes and efforts of people who are attracted to this White, male blog.

[Bob from Ohio]

"everything is about race"

Only because you make it so.

Its not 1952 or 1963 anymore.

[LawTalkingGuy]

So what year did racism in society suddenly disappear?

[Bob from Ohio]

"suddenly disappear"

Argumento strawmanto.*

Racism has never disappeared, nor likely ever will.

But you still think its 1963 in Selma.

* Not a real latin term

[LawTalkingGuy]

But you still think its 1963 in Selma

The Selma march was in 1965. And that's another strawman. What I think is that the people and attitudes present at Selma didn't go away and that needs to be addressed.

[Bob from Ohio]

We have addressed it and and we will keep on addressing it.

"The Selma march was in 1965."

Oh, so it was all good in Selma in 1963 then.

[LawTalkingGuy]

“Oh, so it was all good in Selma in 1963 then.”

Stop trying to be funny and clever. You are not.

[Sarcastr0]

But you still think its 1963 in Selma.

Now, THAT's a strawman.

Jimmy literally said "could humanity have changed in the 70 years to the point where maybe we don’t need to look at everyone and everything through the lens of critical race theory."

He's trying to argue systemic racism is over. LawTalkingGuy has him dead to rights.

[LawTalkingGuy]

Also, it’s not even a straw-man. Just a straight up lie.

[Bob from Ohio]

"Just a straight up lie."

No, its the only logical conclusion from your attitude.

Race! race! race! is your obsession.

[LawTalkingGuy]

No. You are a liar. Deal with it.

[Bob from Ohio]

"No. You are a liar. Deal with it."

Just because you can't face facts does not make me a liar.

You deal with it.

[LawTalkingGuy]

"Just because you can’t face facts does not make me a liar."

I am the one facing facts. The facts about history, the facts represented in the data about differing outcomes for racial groups, the facts about what and how white conservatives react to things.

What makes you a liar is taking something you know is false and saying it is my position. You are lying. Liar is simply another item on your interminable list of character faults that you refuse to confront. Historical ignorance is another.

[Krychek_2]

I try really hard to avoid conversations in which people exchange accusations of lying. And I'm not taking a position with respect to whom is telling the truth on this specific thread. But there is something I need to say.

Bob, you have repeatedly told us that your approach to politics is that the end justifies the means, that there is no such thing as morality or ethics, and that whatever keeps your side in power is fine with you. Since you've told us all that, as a general principle, why should someone believe you when there's a factual dispute? If you are lying, wouldn't that just be in furtherance of your end justifies the means philosophy?

[Bob from Ohio]

"He’s trying to argue systemic racism is over. "

Of course he is, because it is.

Racism is an isolated thing, less widespread every year.

All your talk of "systemic racism" is just political propaganda.

[LawTalkingGuy]

It is based on data and historical reality.

[Stephen Lathrop]

Bob, would you concede that an election map from 1860—a county-by-county map to show which counties voted against Lincoln—would be a fair indicator of the distribution of pro-racist politics then? If not, please say why.

[Don Nico]

Of course, it didn't disappear. But if you think that it will be eliminated, you're dreaming. As long as there is massive repressive oppression of people by others with identifiable different characteristics, racism will be reborn.
The Other will always find ways to enter our psyche, even yours.

[LawTalkingGuy]

Just because attitudes can’t be wholly eliminated doesn’t mean that they can’t be addressed and mitigated against particularly when they manifest themselves in public policy

[Bob from Ohio]

We had already won Midway and invaded Guadalcanal several days prior. The tide had turned.

Maybe the thinking was that loss at sea would encourage Japan to activate its non existent Fifth Column.

[qwints]

Are you sure about this date? Civilian Exclusion Order No.1 was issued 3.2.1942 and the last one, Civilian Exclusion Order No.108, was issued 7.22.1942. Korematsu was personally affected by Civilian Exclusion Order No. 34, which was issued 5.3.1942.