David A. Harris


In just a few years, seven decades will have passed since the United States Supreme Court's decision in Korematsu v. United States, one of the most reviled of all of the Court's cases. However, similarities between the World War II era and our own have instigated a re-evaluation of Korematsu. When the Court decided Korenatsu in 1944, the United States was at war with the Japanese empire, which created considerable suspicion of anyone who shared the ethnicity of these foreign enemies. Since September 11, 2001, America has faced another external threat - from the al Qaeda terrorists - and there is again a fear of those who resemble them or come from the same ethnic or, in this case, religious group. Now, many believe that the time has come to dust off Korematsu and put its principles to work. Contrary to widespread belief Korematsu is still alive today. Many jurists and scholars believe no current U.S. court today would ever use Korematsu to justify another internment. Unfortunately, the law does not support this view; Korematsu remains a present reality. Thus, if Americans wish to avoid a repetition of this dark chapter of the country's history, something besides the law must come into play. This Article argues that, by looking not just at the law but also at how Americans view Korematsu today, Americans have reasons to hope that, if faced with another large-scale terrorist attack, the government would not react the way it did in the early 1940s. Ironically, the basis for this assertion comes at least in part from the very damage that Korematsu caused in the 1940s and the lasting impact it has had

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