Two of the three most infamous Supreme Court decisions were erased by events. The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.
By GEORGE WILL
The Washington Post
Korematsu v. United States (1944), which affirmed the presidents 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, San Diego, is campaigning for a Supreme Court repudiation of the Korematsu decision and other Japanese internment rulings.
A repudiation would be unprecedented, but an essay that Irons is circulating among constitutional law professors whose support he seeks is timely reading in todays context of anti-constitutional presidencies, particularly regarding war powers.
On Feb. 19, 1942, President Franklin Roosevelt authorized the military to prescribe military areas from which any or all persons may be excluded. So 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations.
Using government records, Irons demonstrates that because senior officials, including Solicitor General Charles Fahy, committed numerous and knowing acts of governmental misconduct, the court based its decision on records and arguments that were fabricated and fraudulent. Officials altered and destroyed evidence that would have revealed the racist motives for the internments.
The 1943 Final Report on Japanese evacuation was prepared under the direction of Gen. John DeWitt, head of the Western Defense Command, and signed by him. It said a Japanese invasion was probable, that racial characteristics of Japanese- Americans predisposed them to assist the invasion, and that it was impossible to distinguish loyal from disloyal Japanese-American citizens.
When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, but one copy escaped DeWitts cover-up. The court, however, never saw it, remaining unaware of the racist basis of the theory of internments military necessity.
Fahy ignored an assistant attorney generals warning that not advising the court of this report would constitute suppression of evidence. DeWitt justified internment because the interception of unauthorized radio communications along the coast conclusively accounted for Japanese submarine attacks on U.S. ships. 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 DeWitts accusations. Yet Fahy in his oral argument assured the court he could guarantee the veracity of every syllable of DeWitts report.
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. It is less important that the decision be repudiated than that it be remembered.
Especially by those currently clamoring, since Boston, for an American citizen arrested in America, and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network to be detained by the military as an enemy combatant. The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.
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