In the Shadow of Korematsu: Democratic Liberties and National Security

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America. This marked an era darkened by accelerating discrimination against, and intimidation of those asserting rights of freedom of religion, association and speech, and by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. One of which is: Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of "pressing public necessity" as justification for curtailing fundamental liberties? This book portrays the present-day significance of the Supreme Court's partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration. Second, it implicates prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, it engages the American populace in shaping law and policy at the ground level by placing the courts' legitimacy on center stage. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

Preface Part One: The Challenge Prologue Chapter I: Overview: Judging National Security and Civil Liberties Controversies Part Two: The Contested Cases Chapter II: The 1944 Korematsu Supreme Court Decision Chapter III: The 1980s Coram Nobis Cases Chapter IV: Korematsu's Chameleonic Deployment Part Three: The Next Steps Chapter V: Jurisprudential Foundations Chapter VI: A Workable Method Chapter VII: Realpolitik Influences Part Four: Looking Back, Moving Ahead Chapter VIII: In the Shadow of Korematsu Chapter IX: In the Light of Justice - Concluding Thoughts Table of Authorities Index