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A Brief Reply to Michael Ramsey Regarding Korematsu (with Further Update)
Andrew Hyman

Mike Ramsey (who edits this excellent blog) writes: “Congress cannot simply conclude (or authorize the President to conclude) that particular persons or a class of persons pose too great a risk to remain free.”  I do not think that is necessarily always true if there is compelling proof of risk, which there certainly was not in Korematsu.  In denying congressional power, Mike may be alluding to the concept of a “status crime” which occurs when there is no unlawful behavior; the Supreme Court held in 1962 that status crimes violate the Eighth Amendment, with Justice Black writing for the Court in that case of Robinson v. California (perhaps suggesting how he would have ruled in Korematsu if the Court had reached the issue of detention).  Later, in a 1989 case, the Court insisted more generally that we must rely on specific applicable constitutional provisions when they are available, “not the more generalized notion of substantive due process.”  

Maybe I misread Mike, and maybe he did not mean to rely on substantive due process (which was not explicitly mentioned in his blog post).  He wrote, “I am taking sides in a larger intra-originalist debate on whether the due process clause restrains only the executive and judiciary, or whether it also constrains the legislature; I take the latter side.”  I take the latter side too, and always have, but of course that does not require support for substantive due process, which was not widely known in 1792 when the Bill of Rights took effect, and still had not taken wing by 1868 when the Fourteenth Amendment took effect.

If a Korematsu-like case had arisen in Hawaii instead of California, immediately after the bombing in December 1941, and the internment had been limited to hypothetical American citizens who obviously favored the bombing and were therefore likely Japanese recruitment targets,  and the government acknowledged that it would have to make out a case for treason or attempted treason in order to hold them very long, then I think it probably would have been constitutional assuming Congress specifically authorized it. 

MICHAEL RAMSEY ADDS:  Our usual custom on this blog is to limit exchanges to post/response/reply, to avoid unduly extended back-and-forth.  I'm granting myself an exception to this rule for the limited purpose of clarifying that in my prior post I'm emphatically not relying on substantive due process (or the Robinson theory of the Eighth Amendment).  My view is that there are certain traditional judicial procedures that the legislature cannot override (or authorize the executive to override).  In particular, the legislature cannot override the prerequisite of trial and conviction before imprisonment, even where the person (or group) is reasonably perceived as a national security threat (except when habeas corpus is suspended).  That was Justice Scalia's view, dissenting in Hamdi v. Rumsfeld, as to an individual and I think it applies equally to a group, as in the Korematsu analogues we are discussing.  I regard this as an appropriately procedural form of due process.

FURTHER UPDATE by Andrew: Just to be clear, I agree that detention without trial is generally unconstitutional, but there are exceptions.  A person could plead guilty or plea bargain to accept imprisonment while avoiding trial.  Or a person could be arrested pending trial, and be denied bail if the person poses a threat to others, resulting in pre-trial imprisonment.  Of course, a trial to determine if someone has committed the “crime” of merely being Japanese-American would not be very helpful to anyone, nor easily placed within any enumerated power of Congress.