Defending Korematsu?: Reflections on Civil Liberties in Wartime

According to Justice William J. Brennan, After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along. This Article examines that observation, using Korematsu as a vehicle for refining the claim and, I think, reducing it to a more defensible one. Part I opens my discussion, providing some qualifications to the broad claim about threats to civil liberties in wartime. Part II then deals with Korematsu and other historical examples of civil liberties in wartime. It identifies a pattern in those examples and provides a sketch of a social theory that might account for the pattern. Part III describes, in relatively optimistic terms, a process of social learning in which past examples of what come to be understood as incursions on civil liberties progressively reduce the scope of civil liberties violations in wartime. Part IV raises jurisprudential questions about the role of emergency powers in liberal constitutions. In the end, I defend Korematsu in the perhaps ironic sense that Korematsu was part of a process of social learning that both diminishes contemporary threats to civil liberties in our present situation and reproduces a framework of constitutionalism that ensures that such threats will be a permanent part of the constitutional landscape