How are Korematsu and M’Culloch alike?

Recently there has been some discussion about whether the Justice Department should formally disavow any future reliance on Korematsu and ask the Supreme Court to overrule the case. It may come as a surprise to some that Korematsu is still good law, but the problem is that a similar situation hasn’t really arisen since the 1940s.  How, then, can the Court overrule the case? Dicta is a possibility, but it is easy to see why the Justices may not want to overrule a case in that way.

The same issue arose with respect to M’Culloch v. Maryland. As I explain in my book on Jacksonian Democracy, the Taney Court probably would have overruled that decision if given the opportunity. The obstacle was that–after the charter of the Second Bank of the United States expired in 1836–there was no way to bring a case to the Court to overrule the decision. Lawyers came up with creative ideas to solve this dilemma, but to no avail.  That was lucky for the future of constitutional law, but the stain of Korematsu is the price of this common law structure.

You may also like...

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?