On Sunday, California held its first Fred Korematsu Day. You may never have heard of him. But his unwavering personal courage is matched only by the importance of his role in constitutional law.
During World War II, in Korematsu v. the United States, the Supreme Court held that the American government could convict Mr. Korematsu — without a finding that he had done anything wrong — for refusing to be interned along with 120,000 others of Japanese ancestry considered threats to national security.
Korematsu is the sole case in which the court has upheld a law discriminating by race with the court applying so-called strict scrutiny. Mainstream constitutional law is now defined in part by its repudiation of this holding, although the Supreme Court has never overturned the deeply flawed ruling.
Mr. Korematsu’s conviction was invalidated by a federal judge in 1984 on factual grounds. Historical research uncovered Justice Department documents stating that the government’s evidence contained “intentional falsehoods” about the security threat. There were none. In 1998, he was awarded the Presidential Medal of Freedom, and this year’s holiday was celebrated as if this deplorable chapter were closed.
Mr. Korematsu knew better. In 2004, he submitted a brief to the Supreme Court in support of the right of enemy combatants to challenge their detention in court. The brief used his old case to stress the “extreme nature” of the government’s position. He and his lawyers argued that in the name of national security the government was limiting civil liberties “much more than necessary” and fending off “any judicial scrutiny.”
The court ruled that enemy combatants could challenge their detention in federal court. Still, the president retains power to identify people as enemy combatants and treat them like enemies without much due process. Mr. Korematsu hoped no one would be locked away again for looking like an enemy. But after Sept. 11, 2001, he was not certain that would never happen. He stayed vigilant. All of us should.
