Search the Lounge

Categories

« Penn State Law Seeks Faculty | Main | Justice Kennedy’s Strange Concurrence in Trump v. Hawaii »

June 26, 2018

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Deep State Special Legal Counsel

Another Black Monday.... To goose the Base is not a rational basis... What objective fats exist to show that these countries are a threat to National Security?

Deep State Special Legal Counsel

Trump v. Hawaii. I thought this was a way to put unemployed Harley Davidson workers back to work machining metal caps for the volcano. Really big strong ones, you will see!!! TRUMP, MAN OS STEEL saving HAWAII! Que the music... Kind of has a Disney movie ring to it.

anymouse

Thank goodness the Roberts Court finally offically abrogated that terrible Korematsu case, in which President Franklin Delano Roosevelt's (D) awful Executive Order 9066 was upheld by 6 justices who were all appointed by President Franklin Delano Roosevelt (D).

anon

anymouse

Liberal extremists have already begun excusing FDR's admin and his court: war time.

Totally different, they say. The decision attacked today by dissenters by comparing it to Korematsu, in a non sequitur of astounding proportions, had nothing to do with that issues at stake in that case, of course.

As for the roots of Korematsu, anymouse, you are correct. However, liberal extremists can admit having done no wrong, ever (when they are safely able to stay in a bubble of denial), hence the "war time" exception to concentration camps.

Sort of like Lincoln suspending the privilege of the writ of habeas corpus, ordering federal troops to arrest Baltimore’s mayor and head of police, several newspaper editors, and two dozen state legislators (to thwart the democratic process, no less), and refusing to "Free the Slaves" in the Emancipation Proclamation, literally exempting border slave states and parts of three Confederate states (being mindful of his promise, in his first Inaugural Address, to have “no purpose, directly or indirectly, to interfere with slavery in the States where it exists.”).

For the liberal revisionist, Lincoln was a defender of the rule of law. His acts to the contrary are nothing to even remark about; for the liberal extremist, as evidenced in these pages, it is as though Lincoln actually fought the Civil War to abolish slavery, and adhered to the Constitution in every respect during the conduct of that war.

Yet, ask one of these liberal lions about Bush during Iraq! You'll get a forceful lecture about the violation of civil rights during wartime. (The issue here has nothing to do with the "just war" notion (that is, the Civil War being "just" and the other not): the issue here is the conduct of our government during wartime, which the liberal lion will excuse for any "democratic party" government and excoriate for any republican party led government(Lincoln is now claimed by the Democrats, as is Jefferson, even though this, again, is just revisionist bs).

"Liberal" icons have a very spotty record of upholding civil rights and the rule of law during wartime. See, e.g. FDR, during WWII, Truman, during Korea, JFK and LBJ, during Vietnam.

Suffice it to say, the "war time" exception for Korematsu v. United States is total bs; and it was the MAJORITY that overruled it today.

Write a post about that on the FL? Nah .... doesn't fit the purpose here: to smear republicans at all costs.

Does the term "intellectual honesty" mean anything to a "scholar" these days?

anon

"The nation was involved in total war during Japanese internment, unlike today. As Justice Jackson noted, it is impractical to rely on the Court to block a wartime measure that the executive thinks is necessary in that context."

So, are you saying the majority erred in overruling Korematsu?

Jeff

Reading my post in full, I think it is pretty clear that I am not defending Korematsu. I talk about the "mistakes" and "failing" of Korematsu in the post. My personal view is that the Court is abdicating its role by failing to enforce the First Amendment against the travel ban, just as the Court abdicated its role during Japanese internment by failing to truly apply strict scrutiny to racial classifications.

My suggestion is that there is a sense in which the Court's virtually complete deference to the President is even more inexcusable today than during WWII. It is at least plausible to think that more deference should be given to the Commander in Chief in the field of national security during a total war situation.

anon

"It is at least plausible to think that more deference should be given to the Commander in Chief in the field of national security during a total war situation."

Wow. THere's a evasive response.

If it is plausible to consider what the court did in Korematu in any terms other than the terms stated by the majority today, then you are opening a door to a "national security exception."

In short, yes or no: Did the majority today err in overruling Korematsu?

Is it hard for you to say, "No, the majority was correct and did a great thing today in overruling Korematsu"?

Geez, even the muddle headed dissent (comparing internment in concentration camps to the issues before the court today) admitted that overruling Korematsu was significant and laudable.

If you can't say that, I think that is very significant.

Jeff

Of course the majority was correct in overruling Korematsu. But, I think the Court's overruling is hard to understand because it commits the same errors as Korematsu and does not distinguish the case in a meaningful way.

I agree with Fishkin's more extended discussion of this point here: https://balkin.blogspot.com/2018/06/why-was-korematsu-wrong.html

anon

Well, that's a qualified praise. You say "I agree, but ..."

One would think that anyone would celebrate and praise the overruling of Korematsu. Period. End of sentence. No, ifs, no buts, and certainly, not two previous squishy references to heightened deference to the executive in times of war. Those references implied that the court might conceivably refrain from finding concentration camps based solely on race inconsistent with constitutional principles.

Suffice it to say that if the president said that ("Well, the Supreme Court should refrain from ruling on Korematsu-like actions that I might find to be necessary in a time of war") I suspect you, and others on this blog, would be all over that statement in a hot minute.

As for the comparing Korematsu to the case before the court, the majority did fine in answering the unusual nature of this attack, and there would appear to be no need to repeat the argument of the majority in that regard here. The facts in Korematsu had not even the slightest similarity to the present exclusion of persons from certain countries outside our borders from entry into the country: an exclusion riddled with exceptions, waivers and opportunities for the designated (by the prior administration) regions to escape the ban altogether.

One common sense question: who has been interned in the United States, based on religion or race, as a result of the orders at issue today?

The comments to this entry are closed.

StatCounter

  • StatCounter
Blog powered by Typepad