The case of Korematsu v. United States lives in constitutional infamy as the case which upheld the military policy of Japanese internment during WWII. In doing so, the Court—led by former KKK member Justice Black—did not deny that Japanese internment constituted a deprivation of constitutional rights. Instead, they found that the deprivation was justified due to the fact that the United States was at war. Because of this justification, Korematsu is one of several cases which stands for the proposition that constitutional rights—perhaps particularly the equal protection rights of minorities—can be abridged in times of war. However, the United States has not officially declared war on any nation since 1942.
In light of this, then, it is vital to consider whether the Korematsu decision can be more widely construed in modern times, and, if it can be, whether that construction provides a basis for the argument that it is acceptable to infringe upon the civil rights of minorities in any time of crisis—including a public health crisis like the current COVID-19 pandemic. Indeed, if the holding in Korematsu can be so construed, inquiring minds should wonder what crises and which “wars” justify the sort of constitutional intrusion here upheld by the Court—and, perhaps most importantly, against which enemies?
Again, while the U.S. has not officially declared war since WWII, politicians have continued to use the parlance of war to justify policies that disproportionately target and impact racial minorities. For example, massive increases in the policing and prosecution of drug offenders during the so-called “War on Drugs” led to the systematic and devastating incarceration of black men. Similarly, in the wake of 9/11 and during the “War on Terror,” the Bush administration utilized the broad powers granted by the Patriot Act to disproportionately target, harass, and detain Muslim-Americans and those of Arab descent.
Today, the U.S. is likely facing the most impactful crisis in our modern collective history in the form of COVID-19 pandemic, which has killed over 80,000 Americans at time of writing and pushed the economy into a recession. And, one of the most concerning aspects of the crisis is how the Trump administration has used it to marginalize Chinese-American and immigrant populations throughout the United States. President Trump has repeatedly insisted upon referring to COVID-19 as the “Chinese virus,” and, at least partially in response to this rhetoric, hate crimes against Asian-Americans have spiked throughout the country. The President has also repeatedly boasted about his “China ban,” wherein he imposed travel restrictions on Chinese nationals entering the United States in early February, despite the virus raging throughout Italy at that time as well. And, in keeping with the his administration’s abysmal record regarding the treatment of immigrants, President Trump recently signed a proclamation aggressively preventing legal immigration into the United States by temporarily halting the issuance of green cards, supposedly to protect American workers in light of the looming recession. To justify these actions, Trump has taken to calling himself a “wartime president,” and referring to this pandemic as a “war”, which, of course, we’ve seen before, during both the War on Drugs and War on Terror. Indeed, if history is any indicator, these measures may be only the beginning of a regulatory storm that disproportionately negatively impacts both Chinese-Americans, and immigrants more generally.
While the Court has rebuked the policy of internment, Korematsu has never been officially overturned. And, it is worth contemplating whether the Court made this choice purposely, because they were waiting for a moment just like this one. However, in moments like these—when the nation is consumed by panic, and national security and public health seem to be the only things that matter—our constitution, our equal protection and civil liberties are more important, not less. In moments like this—in times of crisis—our constitution, and its ideals, still matter. It is undeniable that we are living in uncertain and terrifying times—and, perhaps worst of all, it is unclear when they will end. But, just as the First and Second World Wars ended, the “war” against this virus will one day, too. The decisions that are made now, though, of who we choose to protect and which values we choose to uphold, will be scrutinized by our descendants for decades to come—let us ensure that they are the right ones.
Ariana Aboulafia received her J.D., magna cum laude, from the University of Miami School of Law. She has a B.A. in political science and a B.A. in law, history, and culture from the University of Southern California.