Civil Liberties on the Homefront: Korematsu and the National Security Justification

Abstract

Throughout much of American history, the national security justification has been a powerful tool of the government in seizing powers that resulted in the curtailment of civil liberties. During the Quasi-War with France, Congress passed the Alien and Sedition Acts to criminalize speech critical of the government. During the Civil War, President Lincoln unilaterally suspended the writ of habeas corpus and authorized the detention of thousands of political prisoners, including dozens of delegates of the Maryland state legislature and several newspaper publishers. During World War I, Congress enacted several laws that severely restricted civil liberties, including widespread censorship of the press. Perhaps the most notorious example of the use of the national security justification that resulted in the deprivation of civil liberties was the internment of over 120,000 people of Japanese ancestry in concentration camps in the western United States during World War II. The exclusion of these people (nearly two-thirds of which were American citizens) from their homes was later upheld by the Supreme Court in Korematsu v. United States. By itself, this decision was and is widely regarded as one of the nation’s worst. Yet, the Court’s ruling was just the beginning of the story. Information uncovered in the years since revealed that the government knew its national security justification was lacking and yet still misled the Court by withholding, altering, and destroying key evidence. It would not be until 2011 when the government, through the Solicitor General’s office, would acknowledge this error; and not until 2018 for the Supreme Court to formally acknowledge that Korematsu was wrongly decided. Korematsu’s revealed story provides historians and the public alike with key lessons about the trust its citizens place in the government in times of crisis and how Americans' views have shifted over time. The case also raises important and timely questions about how deferential the courts should be to claims of national security by the executive branch when civil liberties are at stake, and whether the courts can fairly adjudicate such claims.