Friday, April 01, 2005

Many Passings: R.I.P.

Well, it's still too soon, as of the present moment, to call it for the Pope. Anyway, as a lapsed quasi-Catholic turned agnostic, I haven't any comments to offer on his passing that aren't conflicted or self-contradictory. All I'll say, without irony or rancor, is: may he go with God.

As for Terri Schiavo, I've already said my say on the political/legal implications of thrusting her case upon the federal courts. But in the face of her death, the only important thing to remember, and to mourn, is the tragedy that befell her. Any way you view it, it was a tragedy that she didn't deserve. May she rest in peace.

And finally, somewhat overshadowed by these more celebrated passings: yesterday marked the death of Fred Korematsu, the Japanese American who challenged - unsuccessfully - his arrest and internment during WWII. His conviction was overturned 40 years later, but not the Supreme Court's 1944 ruling that the "evacuation" (as opposed to"detention" - a weird distinction that Jerry Kang and other legal scholars have written much more lucidly about it than I could possibly do) of Japanese Americans was lawful, and not unconstitutional.

For obvious reasons I needn't go into detail here, Korematsu's case still has (or should have) striking resonance today. Here's what the Supreme Court had to say in 1944:

"Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."

Underscoring the grim familiarity of these arguments is the masterful dissent by Justice Murphy. Justice Jackson's dissent tends to get quoted a lot (there's a great line in it about a principle of racism being like a loaded spring), and it's good. But Murphy's is ballsier, and his analysis of the flimsy military evidence all the more searing for being so right on the money. (It was later discovered that the DOJ had effectively covered up just how flimsy, as in nonexistent, the evidence of Japanese American espionage really was.) In tribute to him, and to Korematsu, I'll close my yammering with a passage from his dissent - though I highly recommend reading the entire thing if you can get a hold of it:

"No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific coast ... But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights ... To give constitutional sanction to that inference in this case, however well-intentioned may have been the military to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual, and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

Amen to that. It troubles me to think that Korematsu died at a time when Murphy's warnings may be proven all too prescient. Despite that, I hope he, too, rests in peace.


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