“Implicit in the Concept of Ordered Liberty”: Not Going Backwards

Like every U.S. law student, I read Korematsu v. United States in my Constitutional Law class.  It’s the 1944 case in which the Supreme Court decided that the Japanese internment camps of WWII were Constitutional.

We were, of course, expected to understand and be able to deconstruct the reasoning behind the majority’s opinion in the case, as well as the concurrence and all three dissents.  That’s standard operating procedure for the reading of cases in law school.

We were also, however, expected to understand that Korematsu is a terrible anomaly.  That it, along with Dred Scott v. Sandford, represented an absolute nadir in U.S. jurisprudence.  That the Korematsu court not only got it wrong, they got it so wrong – so entirely contrary to the fundamentals of ordered liberty on which the United States is based – that that one decision made it our responsibility to question the legitimacy of every decision issued by that particular court.

Legitimacy, when it comes to Supreme Court decisions, is a huge concern.  One of the things that made Justice Scalia so adamant about his “originalist” approach was that he firmly believed his approach was the only defensible one in terms of legitimacy.  The question of whether his Court’s opinions will be considered legitimate hangs heavily on Chief Justice Roberts*, who was appointed by a President who was arguably appointed by the Rehnquist court.

And if that question weighed heavily on Roberts before the 2016 election, it has to be crushing him now.

Just over a week ago, U.S. voters handed the electoral college – if not the popular vote – to a man who ran on a platform that is actually unconstitutional in many respects.  As the President-Elect chooses his staff and gears up for the job that starts January 20, both his written plans and his spokespeople continue to push their unconstitutional rhetoric and proposals.

And I don’t mean “unconstitutional” in the sense of “I have reasonable, informed opinions about substantive due process minutiae.”  I mean unconstitutional on their face.  Consider:

  • At a February 2016 rally, then-candidate Trump said, “One of the things I’m going to do if I win… I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”  Overlooking the fact that media outlets can already be sued if they “write purposely…false” articles (see Hustler v. Falwell), Trump’s statements indicate an intent to undermine the First Amendment’s freedom of the press if elected (see Hustler v. Falwell).
  • Shortly after the election, Trump campaign manager Kellyanne Conway said, of Democrat and Senate Minority Leader Harry Reid’s comments condemning some of the President-Elect’s staff picks, “He should be very careful about characterizing somebody in a legal sense. He thinks — he thinks he’s just being some kind of political pundit there, but I would say be very careful about the way you characterize it.”  Far from being “just being some kind of political pundit,” Sen. Reid was engaging in the very type of political speech that is most strongly protected by the First Amendment (see Buckley v. Valeo and Meyer v. Grant), and the type of speech which the Court has agreed on numerous occasions that it was the specific intent of the Founding Fathers to protect.  (Conway backpedaled when asked if her comment should be understood as a threat of legal action.)
  • The President-Elect’s “100 Day Plan,” laying out his “Contract With the American Voter,” contains several proposals that violate the Constitution on their face.  These include his proposal for “a hiring freeze on all federal workers” (the President has no control over Article I or Article III agencies or courts), “a requirement that for every new federal regulation, two existing regulations must be eliminated” (the President has no control over Article I or Article III agencies or courts), term limits and restrictions on lobbying by former Congressmembers, and his promise to repeal federal funding (funding bills must originate in the House of Representatives, per Article I).

It’s hard to say, at this point, how much of this the President-Elect is actually going to attempt to do.  It’s easy to say, however, that if he tries, his efforts are going to land his administration in front of the Supreme Court.  (The American Civil Liberties Union has already promised to take these policies to court.)  And, if that happens, Roberts has to tackle the question of his Court’s legitimacy head-on once again.  And again.  And again.

But, ultimately, the question is not about Roberts, or his Court, or even the President-Elect.  The question is one of the very legitimacy of the United States as a nation.

When the United States was founded, it was unique: a nation-state that exists not because thousands of years of fighting or a shared culture had created the sort of custom and acceptance that defined its borders, but because a group of people got together and agreed that they would run a country based solely on their continued acceptance of a set of shared principles.

And the United States only continues to exist because we continue to adhere to those specific founding principles.  The relative inflexibility of the Constitution is one of them.  Limits on the power of the Presidency are another.  The legitimacy of the Supreme Court to interpret the Constitution and the laws made by our Congress (and the legitimacy of that Congress to make those laws) is a third.  That all of these founding principles are intended to outlive any particular partisan fear or external threat is yet another.

Decisions like Korematsu and Dred Scott are condemned not (merely) because they suck from a human rights angle, but because they run so contrary to the founding principles of the nation that they are, by definition, un-American.  Maybe they can happen in other countries without undermining the understandings and agreements on which that country exists.  They can’t happen here without undermining what it means for the United States to exist.

So when the President-Elect’s people claim that the Japanese internment camps provide sound precedent for a plan to register U.S. Muslims, we should all stop in our tracks.  The precedent they invoke for their plan is one that flies in the face of the founding principles of the nation, that directly opposes those rights “implicit in the concept of ordered liberty.”  A plan like this doesn’t (merely) harm those who are forced to register; it undermines the existence of the United States itself.

Awesome.  Wow.

*(Don’t believe me?  Look at his deciding vote in National Federation of Independent Business v. Sebelius and his decision to vote with the majority in King v. Burwell.  Remember that the Chief Justice always votes last, which means Roberts already knew how everyone else fell down before he chose his side.  Remember, also, that the Chief Justice is the one who assigns the writing of majority opinions, which meant that Roberts could choose to write them himself if he sided with the majority.

Then look at the way he threads the needle in both opinions.  Roberts understands that U.S. politics, from the moment he took the bench until today, threaten to devastate the legitimacy of his Court unless he can demonstrate a keen understanding of those politics and the Court’s place within them.)


About Dani Alexis

Dani Alexis is a freelance writer with a decade of experience and a passion for creating new things. As Verity Reynolds, Dani is the author of the Non-Compliant Space series Buy her a coffee: ko-fi.com/verityreynolds
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