In the Shadow of Korematsu: Democratic Liberties and National Security

In the Shadow of Korematsu: Democratic Liberties and National Security

by Eric K. Yamamoto


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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 - an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked 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. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? 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?

These queries paint three pictures portrayed in this book. First, they portray 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 - a decision later found to be driven by the government's presentation of "intentional falsehoods" and "willful historical inaccuracies" to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts' legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers - realpolitik advocacy - at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

Product Details

ISBN-13: 9780190878955
Publisher: Oxford University Press
Publication date: 04/09/2018
Pages: 264
Product dimensions: 6.10(w) x 9.30(h) x 1.00(d)

About the Author

Eric K. Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawaìi. He is nationally and internationally recognized for his legal work and scholarship on civil procedure as well as national security and civil liberties, civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice. Professor Yamamoto has received eight "outstanding law teacher awards," including the Outstanding Law Professor for 2006 from the nationwide Society of American Law Teachers. He has also received the University of Hawaii's highest honor - the Regents Medal for Teaching Excellence. He authored Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America (2000); Race, Rights and Reparation: Law and the Japanese American Internment (Second Edition, 2013), co-authored with Margartet Chon. He has published over 80 articles and book chapters. He has been a visiting professor at the University of California Berkeley School of Law, the Santa Clara Law School, and the City University of New York Law School. He has delivered many keynote addresses and distinguished lectures, including presentations at Berkeley, Michigan, and Harvard, and in Paris, Seoul, Hokkaido and Oxford.

Table of Contents


Part One: The Challenge
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

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