This post is another in an occasional series of commentary prompted by classic cases in the Constitutional Law curriculum. Here I’ll consider an originalist approach to Korematsu v. United States, challenging the exclusion of Japanese-Americans from the West Coast during World War II.
In the textbook I use (Geoffrey Stone, et al.) Korematsu appears in the equal protection section between Strauder v. West Virginia and Loving v. Virginia, two cases that applied the equal protection clause to invalidate state laws. The intent of the placement, presumably, is to invite students to apply modern equal protection doctrine to the racial classification in Korematsu and so find the case wrongly decided as a misapplication of what today we would call “strict scrutiny.”
But no originalist would think Korematsu was an equal protection clause case: the classification was done by the federal government, to which the equal protection clause manifestly does not apply. (And indeed the clause isn’t mentioned by the Court in Korematsu). So is there an originalist critique of Korematsu?
The starting point should be whether Congress has an enumerated power to authorize the executive actions in the case. According to the Korematsu Court, Congress’ war power allows it to do anything connected to winning the war. But this was the New Deal Court, highly nonoriginalist and uninterested in enumerated-powers-based limits on Congress. Add the wartime context, and it’s no surprise that the Court found in effect no enumerated-powers limits. But is there an originalist basis for such a broad war power? Since Congress doesn't actually have an enumerated war power (only the power to declare war), the best form of the argument appears to go like this: the President has an executive power to fight a war under Congress’ authorization; Congress has power to make laws necessary and proper to carry into execution powers the Constitution grants to the President (here, to conduct the war); and if the President finds it useful to exclude Japanese-Americans from the West Coast to aid the war effort, Congress can back that up with the force of law.
Put this way, though, the war power as imagined in Korematsu amounts in effect to a suspension of the Tenth Amendment and of the enumerated powers structure of the federal government during wartime. Given a plausible connection to the war effort (which shouldn’t be difficult to establish), Congress could reach any function otherwise reserved to the states or the people. Perhaps the founders provided such a sweeping war power, but it sits uncomfortably with the Federalists’ assurances that the powers of the national government were “few and defined” (Madison in Federalist 45) and that the enumerated powers structure was such a powerful protection of liberty that a Bill of Rights was superfluous. One could imagine a much narrower version of the war power that allowed a free field of federal action in areas of actual combat, but did not allow Congress to affect private rights within the United States outside the zone of combat, except through its other enumerated powers. Given the immense importance the framers attached to enumerated powers, I would expect originalists to want some strong evidence before adopting the broadest version. At minimum, the Korematsu Court’s nonoriginalist invocation of an unbounded war power seems open to much question.
If Congress does have adequate war power from Article I, Section 8, the next question is whether any provision of the Bill of Rights limits it. Obviously it’s not the equal protection clause. But what about the Fifth Amendment’s due process clause? A common originalist account is that Bolling v. Sharpe (the companion case to Brown v. Board of Education in 1954) oddly found an “equal protection component” to the due process clause, thus allowing the Court (conveniently) to invalidate school segregation in the District of Columbia under the due process clause at the same time it invalidated school segregation in the states under the equal protection clause. (That view gets reinforced in the casebook, which introduces the due process issue in connection with a note on Bolling, following the Brown case). If that’s true, though, the due process clause couldn’t (as an original matter) limit the federal action in Korematsu. So originalists seem forced back onto the war power argument if they want to criticize Korematsu.
That’s not completely the end of the story, though. Korematsu shows that the maligned equal protection component of the due process clause wasn’t just an invention of the Warren court in Bolling. It’s not so clear from Korematsu itself (though Justice Murphy grounded his dissent on “the equal protection of the laws as guaranteed by the Fifth Amendment” (323 U.S. at 235)). But Korematsu relied heavily on the Court’s prior decision in Hirabayashi v. United States (upholding a wartime curfew on Japanese-Americans on the West Coast). Hirabayshi was argued and decided squarely as a Fifth Amendment due process case, on the proposition that racial classifications lacking strong justification violated due process. As the Court explained,
“[t]he Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. …[R]acial discriminations are in most circumstances irrelevant and therefore prohibited, [but] it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.”
Thus Hirabayashi (and by extension Korematsu) treated Fifth Amendment equal protection as a longstanding non-novel doctrine and indicated that in general it barred federal racial classifications outside the exigencies of war. Indeed that doctrine can be traced in a line of cases (cited in Bolling) reaching at least to the early twentieth century (notably Buchanan v. Warley in 1917, which – in a challenge to a state law – invalidated a racial classification on due process, not equal protection, grounds). Of course, the early twentieth century Court was not heavily originalist and had an expansive view of the due process clause. So I don’t mean to suggest that this view of the due process clause is necessarily defensible as an originalist matter – but, contrary to a common view of Bolling, it’s worth considering. (As a note on scholarship, Ryan Williams’ recent article, discussed by Mike Rappaport here and here, suggests that there was a pre-Civil-War equal protection component to the idea of due process, but that it didn’t arise until the nineteenth century – thus perhaps forming part of the 14th Amendment but not the Fifth Amendment).
So I won't offer a conclusion on whether Korematsu is defensible on originalist grounds, except to say that thinking about it this way is more interesting than simply seeing it as an equal protection clause case gone wrong.
Posted at 7:00 AM