“You are kidding yourself if you think the same thing will not happen again,” said Justice Scalia.
A distinguished member of the U.S. Supreme Court gave a sobering reminder of how history can and likely will repeat itself when the conditions are right. Justice Antonin Scalia said that he would not be surprised if Americans were once again imprisoned in concentration camps by the federal government.
The 77-year-old justice was answering questions after giving a classroom lecture to a group of law students in Honolulu. One student asked about the deplorable 1944 Korematsu v. United States decision, in which the U.S. Supreme Court verified the constitutionality of the president ordering the mass-imprisonment of Americans in the name of national security.
Scalia cited the wartime “panic” as a reason Americans accepted President Franklin Roosevelt’s hostile treatment of citizens of his own country.
As the Associated Press reported:
“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime Q-and-A session.
Scalia cited a Latin expression meaning, “In times of war, the laws fall silent.”
“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality,” he said.
The Korematsu case stemmed from President Roosevelt’s Executive Order 9066, which divided the country into “Military Areas” and in a real sense instituted martial law in the United States. Control of civilian territory was granted to military commanders and the Secretary of War, who were authorized to take any freedom-restricting actions they deemed necessary to secure the homeland.
In enactment of the order, several segments of the U.S. population were labeled as “enemies” or “enemy aliens.” They were: (1) people suspected of “subversive activities” (which included speaking against the war); (2) Japanese aliens; (3) American-born Japanese; (4) German aliens; and (5) Italian aliens.
These so-called enemy groups were ordered to report to military prison camps for an indefinite sentence — a process that was dubiously referred to as “relocation” or “evacuation.” The reality was that the targeted individuals were stripped from their homes, their lives, their jobs, their families, and their freedom and placed into cages surrounded by barbed wire and U.S. soldiers who were prepared to shoot them.
Fred Korematsu was born in the United States, and as such was considered a naturally-born U.S. citizen who had two parents who were from Japan. Even though his loyalty to the USA was not questioned, the President had labeled him (and 120,000 others) as an enemy. Korematsu, who resided in Military Area No. 1 (California), was one of the few who did not report to the prison camp to which he was assigned. The government’s response was to have Korematsu hunted down, arrested and convicted of disobeying military authorities.
The Supreme Court upheld his conviction, ruling that the 5th Amendment guarantee of “due process” did not apply, and that his conviction was allowed to stand. The needs of homeland security were considered to be preeminent over individual rights. To date, the decision has never been explicitly overturned.
Scalia’s statements would suggest that its legal precedence matters less than many would think. The Latin phrase he quoted, “Inter arma enim silent leges,“ dates back over 2,000 years and has been proven true in every culture since. During times of crisis — especially during great wars — people are naturally prone to embrace government efforts to empower itself in the name of security and order. Americans have proven this maxim to be true many times over, notably with the mass roundup of political prisoners during the American Civil War, World War 1, and World War 2.
“The reality,” as Scalia pointed out, is that the next time Americans feel great fear of a foreign threat or a terrorist, they will not only accept the destruction of civil rights — they will demand it.