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1942 All Over Again? 1942 All Over Again?
(about 17 hours later)
This is how it starts.This is how it starts.
On Wednesday evening, Carl Higbie, a prominent surrogate of President-elect Donald Trump, appeared on Megyn Kelly’s Fox News program to defend the idea of a national registry of all Muslims — an idea Mr. Trump floated repeatedly during his campaign, along with calls for an outright ban on Muslims entering the country, which legal experts said would be clearly unconstitutional.On Wednesday evening, Carl Higbie, a prominent surrogate of President-elect Donald Trump, appeared on Megyn Kelly’s Fox News program to defend the idea of a national registry of all Muslims — an idea Mr. Trump floated repeatedly during his campaign, along with calls for an outright ban on Muslims entering the country, which legal experts said would be clearly unconstitutional.
To defend the registry’s legality, Mr. Higbie pointed to the imprisonment of more than 110,000 Americans of Japanese descent following the 1941 attack on Pearl Harbor. When Ms. Kelly expressed shock that anyone would approvingly cite one of the darkest periods in American history, Mr. Higbie backtracked. “I’m just saying there’s a precedent for it,” he said. “I’m just saying” — that sneaky, timeworn disclaimer allowing people to say what they really believe without taking responsibility for it.To defend the registry’s legality, Mr. Higbie pointed to the imprisonment of more than 110,000 Americans of Japanese descent following the 1941 attack on Pearl Harbor. When Ms. Kelly expressed shock that anyone would approvingly cite one of the darkest periods in American history, Mr. Higbie backtracked. “I’m just saying there’s a precedent for it,” he said. “I’m just saying” — that sneaky, timeworn disclaimer allowing people to say what they really believe without taking responsibility for it.
The “precedent” Mr. Higbie was just talking about is Executive Order 9066, issued by President Franklin Roosevelt in February 1942. It was a blatantly racist act by a government swept up in wartime hysteria. Americans who were not suspected of any crime, or even of sympathies to a hostile government, were torn from their communities, homes and jobs, and locked in barbed-wire camps for three years.The “precedent” Mr. Higbie was just talking about is Executive Order 9066, issued by President Franklin Roosevelt in February 1942. It was a blatantly racist act by a government swept up in wartime hysteria. Americans who were not suspected of any crime, or even of sympathies to a hostile government, were torn from their communities, homes and jobs, and locked in barbed-wire camps for three years.
The Bill of Rights was written precisely to protect individuals against governmental abuses of power like this. And yet, in 1944, the Supreme Court upheld the order’s constitutionality. Writing for the majority in Korematsu v. United States, Justice Hugo Black said Americans of Japanese descent were incarcerated “because we are at war with the Japanese empire,” not because of racial “hostility.” But that was obviously untrue, as Justice Black suggested in an interview decades later, saying that “people were rightly fearful of the Japanese” because to non-Japanese people “they all look alike.”The Bill of Rights was written precisely to protect individuals against governmental abuses of power like this. And yet, in 1944, the Supreme Court upheld the order’s constitutionality. Writing for the majority in Korematsu v. United States, Justice Hugo Black said Americans of Japanese descent were incarcerated “because we are at war with the Japanese empire,” not because of racial “hostility.” But that was obviously untrue, as Justice Black suggested in an interview decades later, saying that “people were rightly fearful of the Japanese” because to non-Japanese people “they all look alike.”
Today the Korematsu decision is widely regarded as one of the court’s most shameful. But it has never been overturned because the issue hasn’t come up again.Today the Korematsu decision is widely regarded as one of the court’s most shameful. But it has never been overturned because the issue hasn’t come up again.
How much will that matter in the coming months and years? The consensus among lawyers and legal scholars has long been that the ruling is “so thoroughly discredited,” as Justice Stephen Breyer wrote in a recent book, “that it is hard to conceive of any future court referring to it favorably or relying on it.” How much will that matter in the coming months and years? The consensus among lawyers and legal scholars has long been that the ruling is “so thoroughly discredited,” as Justice Stephen Breyer wrote in a 2010 book, “that it is hard to conceive of any future court referring to it favorably or relying on it.”
But many things that were hard to conceive of only two weeks ago now appear in a very different light. Mr. Trump’s vow to register Muslims is already on the path to reality. In an interview with Reuters last Friday, Kansas’ secretary of state, Kris Kobach, a hard-line anti-immigration advocate and top adviser to Mr. Trump, said that the president-elect was considering reinstating a national registry of immigrants from countries with active terrorist groups. The registry, which began after the Sept. 11 attacks, and was criticized for discriminatory racial profiling, was largely suspended in 2011.But many things that were hard to conceive of only two weeks ago now appear in a very different light. Mr. Trump’s vow to register Muslims is already on the path to reality. In an interview with Reuters last Friday, Kansas’ secretary of state, Kris Kobach, a hard-line anti-immigration advocate and top adviser to Mr. Trump, said that the president-elect was considering reinstating a national registry of immigrants from countries with active terrorist groups. The registry, which began after the Sept. 11 attacks, and was criticized for discriminatory racial profiling, was largely suspended in 2011.
In a dissent from the Korematsu ruling, Justice Robert Jackson wrote that the Supreme Court “for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.In a dissent from the Korematsu ruling, Justice Robert Jackson wrote that the Supreme Court “for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.
“The principle then lies about like a loaded weapon,” he said, “ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”“The principle then lies about like a loaded weapon,” he said, “ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
That weapon is still loaded in 2016. And if comments like Mr. Higbie’s are any indication, those now in power may well be willing to fire it.That weapon is still loaded in 2016. And if comments like Mr. Higbie’s are any indication, those now in power may well be willing to fire it.