2003 Wis. L. Rev. 273 (2003)
Defending Korematsu: Reflections on Civil Liberties in Wartime; Tushnet, Mark

handle is hein.journals/wlr2003 and id is 287 raw text is: DEFENDING KOREMATSU?: REFLECTIONS ON
CIVIL LIBERTIES IN WARTIME
MARK TUSHNET*
INTRODUCTION
Writing in 1945 shortly after the end of World War II, Yale Law
School professor Eugene Rostow described recently decided cases
upholding the detention of Japanese American citizens as a disaster.'
They deserved that description, Rostow believed, because [t]he course
of action which we undertook was in no way required or justified by the
circumstances of the war.2 For Rostow, [t]he internment of the West
Coast Japanese is the worst blow our liberties have sustained in many
years. 3
Rostow's criticism of Korematsu v. United States4 has become the
common wisdom. Indeed, it has been generalized into an observation
about the typical response of the U.S. government to perceived national
security needs in wartime. The Latin phrase, inter arma silent leges,
which literally means that in times of war law is silent, has been
translated to mean that in wartime the U.S. government frequently
adopts policies that are simultaneously exaggerated responses to real
security threats and substantial restrictions on civil liberties.5 As David
Cole has put it, there is reason to think that as a general matter in times
of crisis, we will overestimate our security needs and discount the value
of liberty.6 And, according to Justice William J. Brennan, After each
perceived security crisis ended, the United States has remorsefully
realized that the abrogation of civil liberties was unnecessary. But it has
*     Carmack Waterhouse Professor of Constitutional Law, Georgetown
University Law Center. I would like to thank members of the faculty of the University
of Wisconsin Law School, David Abraham, T. Alexander Aleinikoff, Paul Brietzke,
Wayne Moore, Richard Pildes, Peter Schuck, and Louis Michael Seidman for their
comments on a draft of this Article, and Matthew Kilby for his invaluable research
assistance.
1.    Eugene Rostow, The Japanese American Cases-A Disaster, 54 YALE L.J.
489 (1945).
2.   Id. at 489.
3.   Id. at 490.
4.    323 U.S. 214 (1944).
5.    See, e.g., WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL
LIBERTIES IN WARTIME 224 (1998).
6.    David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 955 (2002).

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