Concerns grow after Trump ally cites Japanese-American internment as precedent for Muslim registry

[Sunlei]

article from Japan Times by by Jesse Johnson, Staff Writer 11/21/2016


......Any move to create a registry could be based on the precedent left by the U.S. Supreme Court’s 1944 decision in the Korematsu v. United States case — which focused on the constitutionality of the presidential order that forced Japanese-Americans into the camps. Although the ruling has been widely panned as one of the court’s most shameful decisions, activists say there is need for concern in today’s charged atmosphere.

The decision, in which the court sided with the government, ruling that the exclusion order was constitutional, has never been formally overturned, leaving the door open to potential future applications of the precedent. “Once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens,” Supreme Court Justice Robert Jackson wrote in his dissent in the case.

“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” he added.

While Jackson’s fears of a “loaded weapon” have not materialized in the 72 years since the decision — and while most legal scholars believe the ruling has been thoroughly discredited — some officials, including late Supreme Court Justice Antonin Scalia, have voiced concern that an internment-like event could happen again in a time of conflict.

“You are kidding yourself if you think the same thing will not happen again,” Scalia told students at the University of Hawaii law school in 2014, citing a Latin expression meaning “In times of war, the laws fall silent.”

http://www.japantimes.co.jp/news/2016/11/21/world/social-issues-world/concerns-grow-trump-ally-cites-japanese-american-internment-precedent-muslim-registry/#.WDN-wennbRY

[elleng]

1. Why Korematsu Is Not a Precedent

http://www.democraticunderground.com/1016171095

'The Supreme Court’s infamous 1942 Japanese internment decision, Korematsu v. United States, has never been overturned. But does that mean, as some of Donald J. Trump’s associates have recently implied, that it is still good law, a precedent that could be cited in support of a national registry for Muslim immigrants or other morally repugnant classification schemes?

The ultimate answer is no — but the no is not a simple one. The legal doctrine of stare decisis holds that precedent ordinarily remains in place until it is overturned. And cases that seemed outdated and disreputable but remained on the books have sometimes recurred in the court’s jurisprudence, particularly after the Sept. 11 attacks.

So a moral plea for the government not to treat Korematsu as law is not enough. Fortunately, there is also a legal argument for why Korematsu should not be treated as such.

The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently.

Justice Anthony M. Kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, Lawrence v. Texas. Overturning Bowers v. Hardwick, which had held that a state could criminalize homosexual sex, Justice Kennedy wrote that “Bowers was not correct when it was decided, and it is not correct today.” This formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the Bowers decision even before the court realized its error and reversed.

It is hard to think of an opinion not yet overturned that has a greater claim to having been wrong when decided than Korematsu.'>>>

http://www.nytimes.com/2016/11/21/opinion/why-korematsu-is-not-a-precedent.html?

[Sunlei]

2. 'For profit' prisons use the 13th amendment to allow Corps to use prisoners as slaves, they

will do the same thing 'game the laws of America' to bring back prison camps and so what?, it will take 20 years to fight it out in the Supreme Court! The damage will be done.

They already have woman and children, (central Am. refugees are the only border crossers America has in numbers these past couple years) locked up in prison! with a court backlog of years.

As MLK said, "Remember, everything hitler did was legal".