No, it doesn’t. Not even a close call.
Let’s just all get on the same page.
This is happening:
Trump surrogates are already citing Japanese internment camps from WW II as “precedent” for Muslim registry pic.twitter.com/DVnjtom0mc
— Brendan Karet (@bad_takes) November 17, 2016
And the obvious question is…. would it be constitutional for the government to require citizens to register based on their religion?
The OBVIOUS answer should be NO, and the reason most people instinctively know it would be unconstitutional is to do a thought experiment: substitute “Christian” for “Muslim” and see how that flies.
I’m going to set aside the obvious invidiousness of the proposed registry, as well as the obvious difficulties in enforcing registration. Instead, I’m just going to focus on Korematsu v. United States, 323 U.S. 214 (1944), the case that Trump surrogates are citing as “precedent”.
Korematsu was the case involving Japanese-American internment during World War II. Roosevelt ordered that George Takei and his family and other Japanese-Americans leave their jobs, friends, businesses, etc. and report to “camps” for the duration of the war. These were American citizens, living on the West Coast, of Japanese descent. It came about as the result of a presidential executive order — Executive Order No. 9066 to be exact.
Fred Korematsu was born in Oakland, California, in 1919, the third of four sons to Japanese parents Kotsui Aoki and Kakusaburo Korematsu who immigrated to the United States in 1905. When the internment order came down, he refused to comply and went into hiding in the Oakland area. He was arrested on a street corner in San Leandro on May 30, 1942, after being recognized as a “Jap”. He was tried and convicted of violation of a military order – specifically, the military order for internment given under the authority of Executive Order 9066.
That military and executive orders were challenged and the US Supreme Court upheld the internment of Japanese-Americans, with three dissents.
Korematsu is still good law, so I revisited it. Why did the Supreme Court find such an order to be constitutionally valid?
One reason was precedent. One year earlier, in a case called Hirabayashi v. United States, the Supreme Court upheld a curfew which applied only to the Japanese.
But addressing the race issue, the majority wrote only this:
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. 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. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.
Basically, they are saying — “we’re at war”.
The dissent by Justice Roberts was having none of it:
This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States,320 U. S. 81, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.
And that is essentially the difference. We’re not at war with the Muslims — there has been no declaration of Congress to that effect. Furthermore, there is no “military urgency” now like there was following the bombing of Pearl Harbor (it is more than 15 years after 9/11). Two good reasons right there.
Then you have something that you didn’t have in Korematsu, which was a case about heritage. The proposed Muslim ban isn’t about heritage; it is about religion. “Muslim”, after all, simply means an adherent to the religion of Islam. Islam knows no national origin or skin color. Cassius Clay, a black American, didn’t come from another country. Yet he was a Muslim (which he became Muhammad Ali).
So if this is registry of religious beliefs, — welcome First Amendment.
There’s simply on way in hell this Supreme Court would be cool with registering Muslims. It would be unanimously shot down, even without overturning Korematsu.
In fact, that would be a nice way to start the Trump presidency. With a 8-0 loss in the Supreme Court.