Japanese-American internment was legislated and challenged through all the same legal channels as any other violation of civil liberties. Liberal, progressive President Roosevelt legislated internment through Executive Order 9066 on February 19, 1942. The primary enforcer was liberal California Attorney General Earl Warren, best known as later Chief Justice of the Supreme Court and architect of Brown v. The Board of Education's unanimous decision to desegregate schools. Warren's support for internment was so popular that it got him elected Governor by the end of the year.
As anyone would today, Japanese-Americans sued. The issue finally appeared before the Supreme Court in 1944 in Korematsu v. United States. The Court ruled that internment was constitutional.
The Court justified its decision by arguing that ethnic Japanese, as a group, “constituted a menace to the national defense and safety.” It asserted that internment was an acceptable solution because “disloyal members” of the Japanese-American population “could not readily be isolated and separately dealt with.”
But still, this is an old decision; could Muslim-Americans be locked away in accordance with President-Elect Trump’s rhetoric?
As recently as 1998, famed Chief Justice William Rehnquist affirmed that internment could happen again, stating that “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors." The late Justice Scalia added in 2014: “the Supreme Court's Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.”
In 2014, Korematsu’s original lawyers wrote a letter to the Solicitor General of the United States. They requested that either the Supreme Court renounce its decision or the federal government cease to recognize Korematsu as valid precedent for repeating internment. Despite this, both entities have remained chillingly silent.
The brevity of an individual human life creates in us a natural historical myopia. While World War II has become a distant memory to most Americans, massive human rights violations like internment are far from uncommon throughout the course of human history. Now that Donald Trump has been elected President, hate crimes have spiked, with swastikas spray painted on walls and hijab-wearing Muslims attacked by bigots. White Supremacists have been emboldened and empowered, and fear is overtaking the nation.
Make no mistake, internment is constitutional and can happen again.