Wednesday, June 27, 2018

Taney Court II: the End of the Rule of Law

Journalist David Neiwert juxtaposes the language of horrific Korematsu v. United States case with the language of the decision in Trump v. Hawaii.

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this.
The  forcible  relocation  of  U.  S.  citizens  to  concentration  camps,  solely  and  explicitly  on  the  basis  of race, is objectively unlawful and outside the scope of Presidential  authority.    But  it  is  wholly  inapt  to  liken  that morally repugnant order to a facially neutral policy denying  certain  foreign  nationals the  privilege  of  admission …
What Chief Justice Roberts wrote about Korematsu is flat false: it also was not explicitly about race. In fact, by saying that laws that are de facto racist while not prima facie racist on the face are acceptable, he is replicating the racist logic of Korematsu as well as the long history of laws written in euphemisms, echoing the logic of Plessy v. Ferguson (“separate but equal” only of course it never was equal), and that of Dred Scott v. Sandford, which found that since people had been enslaved they were not people in the sense of the Constitution. This use of euphemisms show plainly that the authors very well know that what they decided was against an honest construction of the law.

If judges consistently construe law to be consistent with the whims of the powerful, rather than the spirit and letter of the law, there is no law, only the whims of the powerful. Until the composition of the Court changes, there is no rule of law in the United States.


mike w. said...

Sadly, with the retirement of Justice Kennedy, announced today, the composition of the Supreme Court will be changing for the worse for decades to come.

Raven Onthill said...

It appears so.