How are Korematsu and M’Culloch alike?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Joe says:

    Hamdi v. Rumsfeld, fwiw, did cite Murphy’s dissent:

    “[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled”

    Souter concurred separately and noted a legislative fix was in place to avoid a Korematsu situation. It also depends on what exactly is not supposed to be relied on. The USSC can grant cert to some detention case involving Gitmo or some other location that they have studiously avoided the last few years & address the issue somehow. Korematsu was something of a cheat — it only explicitly dealt with an exclusion order, not internment specifically.

    If the concern is U.S. citizens, that would be difficult too because we don’t have the same situation as in place then. To my understanding, Chris Hedges etc. argues that something in place now could be interpreted to confine citizens and they want some sort of declaratory action (or whatever the correct term would be) to close off that possibility. But, the USSC (5-4) avoided a much stronger controversy involving surveillance, so there is little chance it will get involved in that fashion. A move by the Obama Administration to disavow would have less staying power.

  2. Howard Wasserman says:

    Is overturning a case in dicta this way much different than what the Court did in New York Times v. Sullivan in, functionally, invalidating the Alien & Sedition Acts?

  3. Gerard Magliocca says:


    That is the best example. But I think that it’s the only one, and it did not involve a prior Supreme Court precedent.

  4. Jordan says:

    Scalia once stated that Korematsu is dead, but is it?