THE BLOG
11/25/2016 10:00 am ET Updated Nov 26, 2017

History Overrules Odious Supreme Court Precedent

Carl Higbie, former Navy SEAL and spokesman for the pro-Trump Great America PAC, insinuated on Fox News with Megyn Kelly that the president-elect might legally target Muslims for adverse treatment in reliance on the Supreme Court's World War II precedent in Korematsu v. United States (1944). That reliance would be misplaced.

Korematsu upheld racist concentration camps for 120,000 "not-yet-guilty" Japanese American citizens or permanent resident aliens. Although the Court has never overruled Korematsu, history has done so -- just as Lee's surrender to Grant at Appomattox Courthouse in 1865 overruled the racist decision in Dred Scott v. Sandford (1857) declaring that blacks "had no rights which the white man was bound to respect."

Korematsu was procured by government fraud. The United States falsely avowed to the Supreme Court that the urgency of time foreclosed individualized determinations of whether Japanese Americans posed a national security risk justifying internment. The genuine reason was quite different.

In a conversation between General John L. DeWitt and assistant secretary of war John J. McCloy, the general insisted that "all Japanese look alike," and, that those charged with excluding alien enemies from restricted areas "will not be able to distinguish between them." General DeWitt added that in contrast to Germans or Italians who could be individually monitored, "the Occidental eye [could not] easily distinguish one Japanese resident from another."

General DeWitt confirmed the military's racial motivation for the Japanese American concentration camps in the Final Report to the War Department:

"In the war we are now engaged racial affinities are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted...It, therefore, follows that along the vital Pacific coast over 112,000 potential enemies, of Japanese extraction, are at large today."

The Supreme Court bought the government's lie hook, line, and sinker. Writing for the majority in Korematsu, Justice Hugo Black accepted the military's representation that segregation of loyal from disloyal Japanese Americans through individualized determinations was impossible within the time required by military necessity: "The judgment that exclusion of the whole group was...a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin."

The government's fraud on the Supreme Court was affirmed by the Civil Liberties Act of 1988, which elaborated:

Internment of Civilians, a grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. As the Commission documents, these actions were carried out without adequate security reasons and without any acts of espionage or sabotage documented by the "The Congress recognizes that, as described by the Commission on Wartime Relocation and Commission, and were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership...For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation..."

Fred Korematsu's conviction by the Supreme Court was nullified in a coram nobis proceeding. United States District Judge Marilyn Patel, in Korematsu v. United States (April 19, 1984), found "substantial support in the record that the government deliberately omitted relevant information and provided misleading information" to the Supreme Court.

The November 9, 2000, dedication of the Japanese American Memorial to Patriotism During World War II within near shouting distance of the High Court was a reminder against history repeating itself. It corroborated that Korematsu has joined Dred Scott as an odious and discredited artifact of popular bigotry.