December 8, 2015

MISSTATING THE CONSTITUTION: The mainstream media and politicians across the political spectrum are having a field day excoriating Donald Trump for his statements that he would ban Muslims from entering the country. Glenn has already posted Eric Posner’s piece that explains why limiting immigration–to any category whatsoever, whether it be race, religion, national origin or otherwise–is within the “plenary power” of Congress, and hence, perfectly constitutional, as the Supreme Court has long recognized.

The latest iteration of PC-induced apoplexy over Trump’s comments comes in the form of comparing restricting Muslim entry to the Japanese internment camps during World War II.  But once again, commentators on both the right and left seem to have conveniently forgotten that the Supreme Court upheld the internment of individuals of Japanese ancestry, including American citizens, in Korematsu v. United States (1944). In another case upholding the imposition of a curfew on Japanese-Americans, Hirabayashi v. United States (1943),  the Court explained the constitutional basis for such actions:

The war power of the national government is “the power to wage war successfully.” . . .  Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs. . . .

The alternative, which appellant insists must be accepted, is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real. . . .

There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. In addition, large numbers of children of Japanese parentage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan. Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have been sent to Japan for all or a part of their education. . . .

Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. These are only some of the many considerations which those charged with the responsibility for the national defense could take into account in determining the nature and extent of the danger of espionage and sabotage in the event of invasion or air raid attack. The extent of that danger could be definitely known only after the event, and after it was too late to meet it. Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. . . .

Because racial discriminations are in most circumstances irrelevant, and therefore prohibited, 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. “We must never forget that it is a constitution we are expounding,” “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution, and is not to be condemned merely because, in other and in most circumstances, racial distinctions are irrelevant.

The Constitution is not a suicide pact. Protecting national security is a “compelling” government interest that should survive the strictest of judicial scrutiny. The only open constitutional question, it seems to me, is whether today’s Supreme Court would change its mind about these pragmatic realities, or instead sacrifice commonsense national security measures to the God of Political Correctness.

Trump’s statements about Muslim immigration/entry do not even rise to the level of World War II’s internment of Japanese Americans. His less intrusive measures–aimed at individuals who are outside US borders, not US citizens, and reasonably viewed as a potential threat to US national security interests during a War on Radical Islamic Terror–are clearly constitutional. Korematsu and Hirabayashi also suggest that even more severe measures against Muslims present within the country–including US citizens–could also be constitutional if narrowly tailored to further compelling national security interests.

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