Why we are here

[Richard Dougherty]

It has always seemed to me that one of the crucial questions of Korematsu is the
extent to which the Court is prepared or empowered to make judgments about
military operations, and precisely how necesary those operations are.  An
important precedent was set (for good or ill) in the Prize Cases, where the
Court gave almost blanket power to Lincoln, but that was rethought soon
thereafter in Milligan; the difference between the two, of course, a difference
recognized by the Court itself, is that by Milligan the war was over.
Richard Dougherty

Barksdale, Yvette wrote:

> Re: whether japanese internment was justified by the power to suspend habeas
> corpus.
>
> I think the Korematsu question remains, doesn't it:
>
> Even if one can suspend habeas corpus, can one do so selectively on the
> basis of grossly overbroad suspect classifications which punish people
> solely because of their ancestry rather than their actions,  without any
> even minimally reasonable relationship to the nation's wartime interests?
>
>  It's one thing to say that habeas is suspended for the population at large,
> putting everyone's rights in the wringer. In that circumstance, one could at
> least argue  that you ought to trust political processes, since leaders are
> subject to strong political checks on bad judgments. But where the political
> branches zero in on unpopular minority groups as a way of appeasing
> irrational, emotional anger on the part of political majorities  (and doing
> so in a way that won't hurt the majorities ), then I think the rubber hits
> the road, clearly, and you need constitutional checks, nothwithstanding the
> national emergency
>
> (Ditto: excessively broad executive discretion which can also be easily used
> in discriminatory ways which shield majorities from the rights-denying
> consequences of their decisions.)
>
> yb
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