Remembering Korematsu in the Era of Trump

By Derek Willie
​
Derek Willie is a sophomore at the University of Pennsylvania.

Yet another of Donald Trump’s vocal surrogates has dipped into the United States’ racist past to justify one of the President-elect’s prospective policy proposals— this time, a national registry of Muslim immigrants. In an interview with Megyn Kelly, Carl Higbie, president of the pro-Trump group Great America PAC, cited internment of “the Japanese” during World War II as legal “precedent” for requiring people visiting or emigrating from Muslim-majority countries to register with a database.  At Kelly’s almost incredulous rebuke, Higbie quickly clarified that he was not “at all” suggesting the country reinstate internment camps, but that he would support “having people that are not protected under our Constitution have some sort of registry so we can understand — until we can identify the true threat and where it’s coming from…” [1]


We should note that there are two glaring problems with Higbie’s remarks: first, as Kelly implies, it is logically spurious to defend the morality of a proposition— in this case, the Muslim registry— by analogizing it with what one supposedly regards as its morally indefensible antecedent— Japanese internment. Either Higbie mistakenly employed internment as precedent, or his adamant dissociation from it is insincere. Second and perhaps more concerning, however, is Higbie’s misstatement of history: during World War II, the United States government interned not the Japanese, but Americans of Japanese descent. Indeed, it was Fred Korematsu, a native Californian and Japanese-American, who sued the government over his displacement in the landmark case Korematsu v. United States, where the Supreme Court judged the forced internment of Japanese-Americans constitutional. [2] Intentionally or not, Higbie’s analogy conflates the Muslim immigrants he hopes to monitor with ethnically Japanese, constitutionally protected, American citizens. In this sense, the ignorance of Mr. Trump’s surrogate nourishes a cultural conception of non-white people— regardless of their citizenship status— as the fundamentally un-American “other.” Echoing the sentiment latent in his surrogate’s speech is the President-elect himself, specifically as he indiscriminately labeled Mexican-Americans rapists and murders while exploiting a judge’s Mexican heritage to invalidate his legal opinion. [3, 4] From his campaign’s inception, Mr. Trump began to facilitate further the already prominent ostracism of non-white Americans, positioning his surrogate’s casual treatment of forced internment within a much larger narrative of cultural exclusion. Thus, Trump and his followers live in a universe where a person’s legal status matters not, where people of non-white ethnic origins are perennially foreign.

Returning to Korematsu, the phenomenon evinced here by Trump’s surrogate seems to extend to Justice Hugo Black’s majority opinion in defense of internment:
"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." [5]

It is important to recall that Korematsu vindicated the mass displacement of American citizens, not simply immigrants. And though I would argue that immigrants should be protected by the constitution, it is even more disturbing that by the Court’s standard, not even American citizenship can shield a racial or ethnic group from persecution at the hands of the state when a “pressing” circumstance arises. True, Black qualifies his justification of internment with a mandate of “rigid scrutiny,” indicating that such discrimination must not be grounded in “racial antagonism”; nevertheless, who decides whether the targeted removal of an ethnic group’s constitutional protections are antagonistic? In the eyes of the Japanese, internment was certainly a manifestation of aggressive racial antagonism.  [6]

Unsurprisingly, Higbie’s rhetoric closely resembles Black’s. Higbie of course notes that most Muslims are “perfectly good people,” but that the registry was needed to “keeps tabs on [extreme ideology] until we can figure out what’s going on.”  [7] Again, Higbie refers namely to immigrants, yet his tacit citation of Korematsu, a decision applying to Americans, is sharply reminiscent of his and Mr. Trump’s willingness to disregard the citizenship— along with the American identities— of ethnic minorities. Most frightening however, is the looming threat Korematsu poses as precedent if the Trump administration decides to target specific ethnic or religious groups within the United States, such as Mexican-Americans or Muslim-Americans. Who is to say that Mr. Trump’s solicitor general would not cite Korematsu in defense of ethnic or religious persecution, and that a Trump-appointed judge would not concur? If Trump’s already Islamophobic cabinet is any indication of the sort of judges he might nominate, Korematsu could emerge from the dustbin of American judicial history to become pertinent in modern case law. [8]

For now, let us hope that Mr. Higbie’s mentioning of internment camps was a gaffe, a banal historical misunderstanding that would carry little weight in a Trump administration. Still, judging from the President-elect’s storied record of bigotry, it would be gravely unwise to dismiss it blithely.

[1] Hawkins, Derek. "Japanese American Internment Is ‘precedent’ for National Muslim Registry, Prominent Trump Backer Says." Washington Post. November 17, 2016. Accessed November 29, 2016. https://www.washingtonpost.com/news/morning-mix/wp/2016/11/17/japanese-internment-is-precedent-for-national-muslim-registry-prominent-trump-backer-says/.
[2] Konkoly, Toni. "Korematsu v. United States." PBS. Accessed November 29, 2016. http://www.pbs.org/wnet/supremecourt/personality/landmark_korematsu.html.
[3] Lee, Michelle Ye Hee. "Donald Trump’s False Comments Connecting Mexican Immigrants and Crime." Washington Post. July 8, 2015. Accessed November 29, 2016. https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/.
[4] Schleifer, Theodore. "Trump Defends Criticism of Judge with Mexican Heritage." CNN. June 5, 2016. Accessed November 29, 2016. http://www.cnn.com/2016/06/03/politics/donald-trump-tapper-lead/.
[5] Korematsu v. United States (1944).
[6] Ibid.
[7] Hawkins, Derek. "Japanese American Internment Is ‘precedent’ for National Muslim Registry, Prominent Trump Backer Says." Washington Post. November 17, 2016. Accessed November 29, 2016. https://www.washingtonpost.com/news/morning-mix/wp/2016/11/17/japanese-internment-is-precedent-for-national-muslim-registry-prominent-trump-backer-says/.
[8]Warrick, Joby, and Abigail Hauslohner. "Trump's Security Picks Deepen Muslim Worries about an Anti-Islamic White House." Washington Post. November 18, 2016. Accessed November 29, 2016. https://www.washingtonpost.com/world/national-security/trumps-security-picks-deepen-muslim-worries-about-an-anti-islamic-white-house/2016/11/18/d7796cc6-add6-11e6-8b45-f8e493f06fcd_story.html.

​Photo Credit Flickr User: Ken Hada

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