Devin Watkins comments on this post by me on the Korematsu case:
While I mostly agree with you, your opinion concerning Korematsu is very close to “so-called” substantive due process—which I don’t think is a bad thing. So-called substantive due process, I think has gotten quite a bad reputation, but that is because the name was designed to imply something silly for something that should be good law. But your definition is rather close to what it should mean.
The Due Process Clause, properly understood, means that (in addition to the executive) the legislature cannot pass a law that takes someone’s liberty away without proscribing a process that goes through the procedures of a trial and conviction by one’s peers. It’s a procedural right, but it creates a procedural protection for “liberty.” Before “liberty” can be taken (even under a statute passed by Congress), such judicial procedures must be followed.
The question then becomes, what is the meaning of “liberty.” It is here, that I seem to disagree a bit. I totally agree that imprisonment clearly takes someone’s liberty away. But Korematsu wasn’t imprisoned or ordered to be imprisoned (by the legislature or the President) by the law/order he violated. The executive order by FDR stated that the military commanders could “prescribe military areas in such places and of such extent as he or the appropriate… from which any or all persons may be excluded” and the order by the military commander he violated merely excluded him from the county of Alameda. Now I agree that these orders took Korematsu’s liberty, but by what measure do you think such an order was “imprisonment”?
To me, imprisonment is merely one example of taking a person’s liberty. The Constitution’s preamble goal to “secure the blessings of liberty to ourselves and our posterity” doesn’t seem to suggest that the word “liberty” means “imprisonment.” Nor do I see what Benjamin Franklin saying “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety,” to be suggesting that liberty is limited to imprisonment. Surely the word liberty described as an unalienable right in the Declaration of Independence wasn’t speaking of mere imprisonment.
Korematsu lost his right to liberty of movement, the ability to move freely in his own country (such as on public sidewalks) as he choose to do so. That takes away a core part of liberty to me. But I don’t see how your more limited version of liberty as only imprisonment could invalidate an order to exclude people from an area. Forcing them to move elsewhere isn’t imprisonment.
Posted at 10:45 PM