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Behind Korematsu v. United States

Seventy years ago today, in Korematsu v. United States, the Supreme Court upheld the constitutionality of the Japanese-American internment program authorized by President Franklin Roosevelt’s Executive Order 9066. The Korematsu decision and the internment program that forcibly removed over 100,000 people of Japanese ancestry from their homes during World War II are often cited as ugly reminders of the dangers associated with wartime hysteria, racism, fear-mongering, xenophobia, an imperial president, and judicial dereliction of duty. But the events surrounding Korematsu are also a harrowing reminder of what happens to liberty when the “Madisonian machine” breaks down — that is, when the structural checks and balances built into our system of government fail and give way to the worst forms of tyranny.

Our 18th century system of separated and fragmented government — what Gordon Silverstein calls the “Madisonian machine” — was engineered to prevent tyranny, or rather tyrannies. Madison’s Federalist 51 outlines a prescription for avoiding “Big T Tyranny” — the concentration of power in any one branch of government. This would be accomplished by dividing and separating powers among the three branches of government and between the federal government and the states. “Ambition must be made to counteract ambition,” Madison wrote. Each branch would jealously protect its own powers while guarding against encroachments by the others.

But this wasn’t the only form of tyranny the framers worried about. In a democracy, minorities are always at risk of being oppressed by majorities — what I call “little t tyranny.” Madison’s solution to this kind of tyranny is articulated in Federalist 10. The cure to this disease was firstly to elect representatives who could filter the passions of the masses and make more enlightened decisions. Secondly, Madison observed that as long as the citizenry is sufficiently divided and carved up into numerous smaller “factions,” it would be unlikely that a unified majority would emerge to oppress a minority faction.

Official notice of exclusion and removal. By Department of the Interior, War Relocation Authority. Public domain via Wikimedia Commons.

In the events leading up to and including the Supreme Court’s decision in Korematsu, these safeguards built into the Madisonian machine broke down, giving way to both forms of T/tyranny. Congress not only acquiesced to President Roosevelt’s executive order, it responded with alacrity to support it. After just one hour of floor debate and virtually no dissent, Congress passed Public Law 503, which promulgated the order and assigned criminal penalties for violating it. And the branch furthest removed from the whims and passions of the majority, the Supreme Court, declined to second-guess the wisdom of the elected branches. As Justice Hugo Black wrote for the majority in Korematsu, “we cannot reject as unfounded the judgment of the military authorities and of Congress…” If Congress had been more skeptical, perhaps the Supreme Court might have been, too. But the Supreme Court has a long track record of deference to the executive when Congress gives express consent for his actions – especially in times of war. Unfortunately, under the Madisonian design, this is exactly when the Supreme Court ought to be the most skeptical of executive power.

To be sure, these checks and balances built into the Madisonian system were only meant to function as “auxiliary precautions.” The most important safeguard against T/tyranny would be the people themselves. Through a campaign of misinformation and fear-mongering, however, this protection was also rendered ineffective. Public opinion data was used selectively to convey the impression to both legislators and west coast citizens that the majority of Americans supported the internment program. The passions of the public were further manipulated by the media and west coast newspaper headlines such as “Japanese Here Sent Vital Data to Tokyo,” “Lincoln Would Intern Japs,” and “Danger in Delaying Jap Removal Cited.” Any dissent or would-be countervailing “factions,” to use Madison’s phrase, were effectively silenced. 

In Korematsu, ambition did not counteract ambition as Madison had intended, and the machine broke down. That’s because in order to function properly, the Madisonian machine requires access to information and time for genuine deliberation. It also requires friction. It requires people to disagree – for our elected representatives to disagree with one another, for the Supreme Court to police the elected branches, for citizens to pause, faction off, and check one another. So we can complain of gridlock in government, but let’s not forget that the alternative, as demonstrated by the unforgivable and tragic events of Korematsu, exposes the most vulnerable among us to the worst forms of tyranny.

Featured image credit: A young evacuee of Japanese ancestry waits with the family baggage before leaving by bus for an assembly center. US National Archives and Records Administration. Public domain via Wikimedia Commons.

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