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Ambition Will Facilitate Ambition By Passing the Buck

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Amanda Hollis-Brusky on the 70th anniversary of Korematsu:

In the events leading up to and including the Supreme Court’s decision in Korematsu, these safeguards built into the Madisonian machine broke down, giving way to both forms of T/tyranny. Congress not only acquiesced to President Roosevelt’s executive order, it responded with alacrity to support it. After just one hour of floor debate and virtually no dissent, Congress passed Public Law 503, which promulgated the order and assigned criminal penalties for violating it. And the branch furthest removed from the whims and passions of the majority, the Supreme Court, declined to second-guess the wisdom of the elected branches. As Justice Hugo Black wrote for the majority in Korematsu, “we cannot reject as unfounded the judgment of the military authorities and of Congress…” If Congress had been more skeptical, perhaps the Supreme Court might have been, too. But the Supreme Court has a long track record of deference to the executive when Congress gives express consent for his actions – especially in times of war. Unfortunately, under the Madisonian design, this is exactly when the Supreme Court ought to be the most skeptical of executive power.

To be sure, these checks and balances built into the Madisonian system were only meant to function as “auxiliary precautions.” The most important safeguard against T/tyranny would be the people themselves. Through a campaign of misinformation and fear-mongering, however, this protection was also rendered ineffective. Public opinion data was used selectively to convey the impression to both legislators and west coast citizens that the majority of Americans supported the internment program. The passions of the public were further manipulated by the media and west coast newspaper headlines such as “Japanese Here Sent Vital Data to Tokyo,” “Lincoln Would Intern Japs,” and “Danger in Delaying Jap Removal Cited.” Any dissent or would-be countervailing “factions,” to use Madison’s phrase, were effectively silenced.

The civics textbook version of the courts hold that they are a “countermajoritarian” check on the powers of the legislative and executive powers, an assumption that comes in positive (“courts can stand up for minority rights when nobody else will!”) or negative (“dictators in black robes usurping democratic prerogatives”) versions. But, in general, courts are unlikely to stray very far beyond the acceptable boundaries of elite opinion; they exercise meaningful power by picking sides on contested questions but will rarely interfere with an elite consensus. When the judiciary protects minority rights, it’s generally because there’s at least significant support for this minority right among political elites. When the support isn’t there, the courts will almost never act. Frankfurter’s “it’s not our fault that we’re ignoring the 5th Amendment” concurrence inadvertently explains the dynamic:

And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Evidently, the refusal to hold others accountable in a separation-of-powers system isn’t just for the courts, either.

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