CIVIL RIGHTS AND SAFETY – FROM KOREMATSU TO COVID-19.

Understanding the intricacies of the Korematsu Decision is as crucial now as it was in the 1940’s when the Supreme Court heard the arguments presented.  In a society as diverse as the United States, people will naturally approach their legal and political philosophies with different lenses by which they interpret the world around them.  This will inevitably lead to varying degrees of tolerance for intrusions on civil liberties and a different emphasis on the necessity of government actions to ensure safety.

Years pass, and the circumstances in which these arguments are presented may change, but the concepts underlying the opposing positions will always remain the same.  There will always be a group of people who believe that the government has not only the power, but the obligation to keep its citizens safe by enacting laws and policies which infringe on people’s free exercise of their rights in the name of protecting us all.  A second group will always feel that the essential function of government is to ensure that people are free to exercise their rights, and that when government starts sacrificing rights to promote safety, it acts outside the scope of its intended powers.

In the 1940’s, the issue was fear that person’s of Japanese descent living on the west coast would provide material aid to Japan.  Proponents of safety, backed by the military, argued that the only way to truly ensure the safety of America’s population was to relocate roughly 112,000 people, evict them from their homes, and put them in internment camps in the midwest.  It is imperative to remember that at no time was a single Japanese person in the United States ever convicted of sabotage, attempted sabotage, treason, conspiring with enemy combatants, etc.  This was done purely out of fear, without any empirical grounds to justify it.  As you heard from the episode, the case went to the Supreme Court, who upheld the internment order as necessary to prosecute the war effort and keep Americans safe.

In my mind, this is one of the most truly tragic and wrongly reasoned decisions the Supreme Court has ever issued.  As my colleague Bob Gottlieb rightly noted when co-hosting the episode describing this case, Ben Franklin’s prescient warning was completely ignored, those who are willing to give up a little bit of liberty for the sake of safety, deserve neither liberty nor safety.  

This same argument is back again when discussing the appropriate actions to take to contain the COVID-19 pandemic.  In these modern times, with social media and the instantaneous ability to reach anyone and everyone with a moment’s notice, lines drawn have become even starker.  Twitter, Facebook and other online forums are publishing people’s opinions on what role the government should – or often must – play in containing the pandemic.  Most social media consumers are not legal scholars, and couch their opinions in their feelings, without regard for what is actually authorized by law.

I have seen countless variations of the argument that in order to protect the most vulnerable among us, the federal government has an obligation to stick a vaccination needle in the arm of every single person in this country whether they like it or not.  When I hear or read this, I try to remember that people are scared, the future is uncertain, and that passions are running at levels unseen for at least a generation.

But I cannot help my thoughts returning to Korematsu.  During WWII, people were scared, the future was uncertain, and a large group of people wanted the government to do whatever was necessary to protect Americans.  Considerations of civil rights, civil liberties and the rule of law were supplanted by what was expedient and what made one group feel safe at the expense of another’s liberty.  With the benefit of hindsight, we almost universally look back at Korematsu and say how could that happen in America?  The next question we should all be asking is, how close are we to doing it again?

I am of the opinion that our government’s job is to protect civil rights and that measures taken to protect citizenry as a matter of course are nearly always inappropriate and overreaching.  My reading of the Constitution and the cases left me with the impression that laws, executive orders and edits which impact a person’s fundamental rights necessarily require the strictest scrutiny.  This does not mean that every single law that implicates one of these rights must be voided, but it means that the burden that the government must satisfy is tremendous.  In the case of forced COVID vaccines, there is simply no justification.  Korematsu, as the first case where strict scrutiny was applied, failed that test, even as six supreme court justices claimed it did.  It is imperative for the rule of law that the judiciary be above the hysteria of the masses and fulfill their role of safeguarding the rights created by our Constitution and laws.  Forcing people to accept a vaccine (or tricking them into it) is a flagrant abuse of power, as ordinary people have the right to say what does or does not go into their body.  This is the rule, and it applies regardless of the exigent circumstances of a global pandemic.

That being said, I see absolutely no problem with the government limiting the enjoyment of privileges provided by the government to citizens if people refuse to be vaccinated.  Additionally, private industries are free to limit the sales of their goods and services to anyone so long as they are not discriminating based on a constitutionally protected class (of which vaccinated/not-vaccinated is not).  Consequently, if airlines wanted to mandate that passengers be vaccinated to fly, or if railway operators like Amtrak required proof of vaccination to board a train, that is perfectly legally appropriate for them to do.

Public schools should be able to require a COVID-19 vaccination once it becomes available for all school-aged children.  We already have an extensive list of required vaccinations for nearly all public schools, so this should not strike anyone as surprising or unanticipated.  People who do not wish to get the vaccine are free not to do so, but they must find alternative schooling options for their children.

These measures are a far cry from forcibly injecting a foreign entity into a person’s body without their consent.

I remain confident that COVID-19 will not become the next Korematsu, despite the growing urges of the masses to force vaccinations, the measure does not yet appear to be in serious consideration by the government, which is reassuring.  However, at the time of this writing, the Delta variant has just begun causing a significant increase in infections and hospitalizations all over the country, which is launching a fresh round of hysteria and paranoia from people who just a few short weeks ago were convinced that the worst was long behind us.

Let us hope that those in charge remember the lessons of Korematsu and Ben Franklin and safeguard civil liberties rather than give in to the majority’s demand to subject a minority population to coercive, unconstitutional “protective” measures.

By: Paul Townsend