A strange creature called Carl Higbie – a Trump supporter and super-PAC propagandist – was on Fox News explaining how a registry for Muslims, who he claimed were not “protected under our Constitution” in the first place, would be a good idea. In explaining why he thought his (and presumably Trump’s) plan would “hold constitutional muster,” Higbie said, “We did it during World War II with Japanese.” He claimed that the Japanese internment order issued by FDR during World War II (and presumably the Supreme Court case, Korematsu, that upheld it) provided “precedent” for the registry plan.
One would have thought it obvious enough that any plan legally, philosophically, or politically undergirded by one of the cruelest travesties in American history might be a titch suspect. But no, I am not making this up – a Trump insider just cited Korematsu (KOREMATSU, for God’s sake!) as precedent for a Trump Administration program in the making.
First, let us dispense with the idiocy about Muslim immigrants not being “protected under our Constitution.” Apparently , before opining as to how the Constitution does or does not function, Higbie failed to apprise himself of a few words in the Fourteenth Amendment that are collectively called the Equal Protection Clause. What is that clause, after all, but one of the best known and most litigated provisions in our entire governing charter?
Had Higbie read the Equal Protection Clause (or, if need be, had somebody read it to him), he would have seen that it enjoins the government from denying “to any person within its jurisdiction the equal protection of the laws.” The key word here – and words do have some relevance when we seek to interpret a written document – is person. Higbie and his ilk would rather the Equal Protection Clause said citizen, not person, but the framers let them down. And why would that be? Might it be because the first thing they had to do in the Fourteenth Amendment was declare former slaves citizens of the United States to undo our habit of treating groups as less than human by declaring that they are not, after all, citizens? Might it be that the drafters of the Fourteenth Amendment knew that the most likely target for majoritarian abuse would be a person not deemed to be a citizen, and that that is why they used the word person instead of citizen?
I wish I could predict that nobody in Trump’s orbit – and his soon-to-be government – would possibly argue that a Muslim immigrant is not even a person for purposes of constitutional protection, but alas, once they’ve cited Korematsu, all bets are off.
Korematsu. I teach that case alongside two other cases, and I refer to the three of them as “the trio of horrors.” Korematsu is taught in most constitutional-law books exactly how it should be: in combination with Dredd Scott and Plessey v Ferguson. Oh that we had no basis to fear that Trumpsters might start citing those cases next.
I’ll give Higbie this much: Korematsu, although classed among the most disgraceful Supreme Court cases in history, has never technically been overruled. Luckily, this is in part because the Court has never since had cause to consider whether the government, without providing due process, may round up tens of thousands of people – most of them United States citizens – and throw them into rat-infested, disease-ridden concentration camps. But this is Trump’s America now – maybe we will have to revisit the issue, after all.
At any rate, the Court in Korematsu got the test right by modern standards: any ethnicity-based discrimination by the government is immediately suspect and must be subjected to the most rigorous scrutiny. Such discrimination can only stand if it represents the best and only way to achieve some compelling purpose. Having laid out those rules properly, the Court then proceeded to mangle their application to the facts before it. Quite obviously, if national unity, nationhood, or even the continuing existence of a country worth inhabiting were the ends to be served, rounding up citizens and throwing them in camps without so much as an iota of individualized suspicion would hardly be the best way to achieve or maintain those ends. What could be more destructive of those very purposes than the unhinged barbarism of such a baldly unconstitutional scheme?
But to Higbie, Korematsu is “precedent” for the proposition that a religion-based registry of Muslim immigrants to this country will “hold constitutional muster.” We shall see where in Trump’s government this Mr. Higbie winds up.