NationStates Jolt Archive

A bit of background: During World War II, President Roosevelt issued an executive order allowing for the internment of Japanese-Americans on the West coast in order to prevent spying and sabotage. Given the incredibly dubious constitutionality of this move, it spawned numerous Supreme Court cases, the most important of which being Endo, Hirabayashi v. United States, and Korematsu v. United States. In Hirabayashi and Korematsu, the Supreme Court upheld the constitutionality of internment, exclusion, and curfew laws. The test for constitutionality set up in Korematsu was "strict scrutiny," essentially saying that cases involving racial issues must be closely examined to determine their public utility and constitutionality. In this case, the Court upheld mass detention because it believed the Administration's claims about national security, which under strict scrutiny was considered to be more important in this instance than rights violations. Strict scrutiny, however, was also one of the justifications cited in Brown for the overturn of school segregation.

The decision to allow internment under strict scrutiny in Korematsu is now almost universally viewed by scholars to be a misuse of the doctrine. That then begs the question: should the Korematsu decision be overturned or left on the books?

It's not before the court now.

It's not before the court now.
Not remotely relevant. It's a question of "should." And, it could be any minute someone from Guantanamo decides to do something about the Padilla decision (which still applies even though Padilla was subsequently charged).

Not remotely relevant. It's a question of "should." And, it could be any minute someone from Guantanamo decides to do something about the Padilla decision (which still applies even though Padilla was subsequently charged).

I guess we can also conveniently forget stare decisis.

I guess we can also conveniently forget stare decisis.
Well, that's the debate, isn't it? Should stare decisis be applied to the Korematsu decision or should it be overturned?

Well, that's the debate, isn't it? Should stare decisis be applied to the Korematsu decision or should it be overturned?
Generally, the Supreme Court is loathe to overturn decisions that are supposedly settled.

What I would want to know is how it applies to Padilla. We're not rounding up people wholesale right now.

Generally, the Supreme Court is loathe to overturn decisions that are supposedly settled.

What I would want to know is how it applies to Padilla. We're not rounding up people wholesale right now.
Guantanamo is definately detention without charge. United States citizens can still be sent there under existing jurisprudence.

Guantanamo is definately detention without charge. United States citizens can still be sent there under existing jurisprudence.
Arguably, the detainees at Guantanamo (at least the majority) were captured under arms in a foreign country.

The Japanese were American citizens at home in the US - and were not under arms or involved in combat or acts of aggression.

Present your argument.

Not remotely relevant. It's a question of "should." And, it could be any minute someone from Guantanamo decides to do something about the Padilla decision (which still applies even though Padilla was subsequently charged).

Korematsu has no bearing on Guantanamo. People aren't at GITMO because of a racial classification. And in any event, my understanding is that the curent state of though is that they are not even fully protected by the constitution.

Arguably, the detainees at Guantanamo (at least the majority) were captured under arms in a foreign country.

The Japanese were American citizens at home in the US - and were not under arms or involved in combat or acts of aggression.

Present your argument.
The Korematsu decision legitimates government suspension of ordinary constitutional and any other protections that allow for government detention without charge, as strict scrutiny could be more broadly interpreted to be relevant in a sense outside racial classification.

I personally believe Korematsu should be left on the books. But I want other people's opinions before I state mine.

Arguably, the detainees at Guantanamo (at least the majority) were captured under arms in a foreign country.

The Japanese were American citizens at home in the US - and were not under arms or involved in combat or acts of aggression.

Present your argument.
In which case they should be held as Prisioners of War.

If they commited a crime inside US juristiction, they should be given a fair trial and sentenced to a prision term.

If they are enemy combatents, they should be held as POWs and treated accordingly.

A bit of background: During World War II, President Roosevelt issued an executive order allowing for the internment of Japanese-Americans on the West coast in order to prevent spying and sabotage. Given the incredibly dubious constitutionality of this move, it spawned numerous Supreme Court cases, the most important of which being Endo, Hirabayashi v. United States, and Korematsu v. United States. In Hirabayashi and Korematsu, the Supreme Court upheld the constitutionality of internment, exclusion, and curfew laws. The test for constitutionality set up in Korematsu was "strict scrutiny," essentially saying that cases involving racial issues must be closely examined to determine their public utility and constitutionality. In this case, the Court upheld mass detention because it believed the Administration's claims about national security, which under strict scrutiny was considered to be more important in this instance than rights violations. Strict scrutiny, however, was also one of the justifications cited in Brown for the overturn of school segregation.

The decision to allow internment under strict scrutiny in Korematsu is now almost universally viewed by scholars to be a misuse of the doctrine. That then begs the question: should the Korematsu decision be overturned or left on the books?

The actual issue in Korematsu is moot.

Korematsu is an important precedent in setting up the strict scrutiny standard.

But, if the Court were to readdress the issue, the outcome of Korematsu should be overturned. It never should have passed strict scrutiny.

Justice Douglas went to his grave ashamed of that opinion.

...They should be held as Prisioners of War.

If they commited a crime inside US juristiction, they should be given a fair trial and sentenced to a prision term.

If they are enemy combatents, they should be held as POWs and treated accordingly.

^ Summed up my opinion...