It's Day 30 of the Year 2019 CE, meaning that it's January , 2019 Fred Korematsu was a US citizen who refused to obey the WWII order requiring all persons of Japanese descent in California, Oregon and Washington to report to relocation centers from whence they were to be shipped off to concentration camps. He quite correctly felt that this deprived him of his right to a trial on the question of the adequacy of his loyalty and was equivalent to imprisonment without a trial. He was arrested and convicted in District Court of violating the law implementing the order and sent off to a camp. He was eventually able to appeal to the Ninth Circuit which upheld his conviction, and then to the Supreme Court, which did likewise. In Korematsu v. United States, 323 U.S. 214, Justice Black, writing for the 6-3 majority pretty much lied in saying that Mr. Korematsu was not subjected to the exclusion order because "of hostility to him or his race", but because the military authorities felt it necessary and proper and we had to trust them in time of war. (There was hostility to the Japanese, but beyond that they were clearly singled out based on their race, insofar as nothing similar was perpetrated upon Germans and Italians in the Eastern US.) Justice Frankfurter, concurring, spewed something along the lines of "The war powers are part of the Constitution and hence cant' be unconstitutional, so we are bound to defer to the judgement and decisions of the military authorities". Justice Murphy, dissenting, called the order racism and deemed the majority's decision to be no less than the enshrinement of racism in the Constitution. Justice Robert Jackson's dissent did not use the word racism, but made it clear that this was very much a racist order and insinuated that it was tantamount to a retroactive bill of attainder. Justice Owen Roberts' dissent was milder in language, but made it clear that the order and law was all about Mr. Korematsu's ancestry and nothing else, which, to me, again raises the taint of some twisted ex post facto bill of attainder. Of course, the Justice Department had lied and concealed evidence, as it so often does. When this came to light, Mr. Korematsu petitioned to have the case overturned as being so flawed as to constitute a travesty of justice that should not be allowed to stand. The government made a counter submission in which it admitted no errors but nonetheless requested that the decision be vacated without any findings of facts as to its merits. Judge Marilyn Hall Patel instead ruled that the Supreme Court had been fed a ration of shit which was sufficient grounds to overturn Korematsu's conviction. Unfortunately, she further ruled that because the reversal was based on prosecutorial misconduct, there was no error of law and any legal precedents established by the case would remain in force. Recently, in Trump v Hawaii, Chief Justice Roberts, writing for the majority, noted obiter dictum, that Jackson's dissent in Korematsu was on the money and that Korematsu was wrongly decided and bad law. Unfortunately, dicta have no precedential value. In dissenting from the majority decision in Trump v Hawaii, Justice Sotomayor took note of that dictum but said that the Trump decision used the same logic and reasoning as the Korematsu case used and merely replaced one horrible decision with another. Beyond his own cases and challenges, Fred Koremstsu was a lifelong civil right activist. On September 23, 2010, Schwarzenegger legally designated January 30 of each year as the Fred Korematsu Day of Civil Liberties and the Constitution,. The main initial public celebration was held in UC Berkeley's Wheeler Auditorium. Since 2010, several other states have joined California in celebrating Mr. Korematsu. So Fred Korematsu is a local hero and his conviction has been overturned. There are some schools and a street named after him, there have been awards in his name and in 2011 the Justice Department finally apologized and admitted to its wrongdoing in one of those "we did a bad thing, but we're past tht and we'll be good going forward." types of speeches. The Korematsu Institute will carry on in his name. The Justice Department and the Supreme Court also have a legacy, a horrible one. Korematsu v US is still on the books and Justice Roberts' feel good obiter dictum cannot change the fact that it is still a legal precedent, just waiting to be used the next time the court decides that it wishes to arrive at a conclusion that Korematsu v US will support. We can be relatively sure that this will more likely than not happen and that the decision will be an odious one. The logic and language in Korematsu support a form of police statism, wherein nobody has any real rights in time of war, crises, or emergency other than to obey and do as they are told. This will apply equally to a war of national defense and a volitional, imperialistic endless war for profit, and even to a security state or police state triggered by the putative existential threat embodied in the phantom evil of the week. The courts have seriously chewed up and spit out the Bill of Rights and we really need to find a way to seize them back. Image is: WWII: Poston, Arizona Relocation Camp for Japanese-Americans by Hikaru Iwasaki, 1945 (NARA) Public Domain Its an open thread so have at it. The floor is yours . Cross posted from caucus99percent.com
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