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Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
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Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
This is a very good question that I had been thinking about for a few weeks now.
Korematsu seems to have originally based his argument on the fifth amendment's Grand Jury clause, but then transferred to "nor be deprived of life, liberty, or property, without due process of law" for the 9th and SCOTUS appeals.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The question then becomes, is an executive order enough "Due Process" to deprive one of "life, liberty, or property" and specifically in this instance Liberty- for a time, and Property- for a time.
The court tip-toed on the answer from what I can tell, that an Executive Order alone was not quite enough to deprive liberty and property, but when combined with the intent of congress in the Act of March 21, 1942, it gave just enough due process that violation of the order merited a crime.
Getting back to the constitution, it has specific wartime powers assigned to the president, and I have heard the argument that the balance of power intentionally and systematically shifts more to the executive once a War Act has been signed (hence: Article I, Section 8, Clause 11 and Article II, Section 2). I would say that in peace-time, the result would not have been the same (obviously) than in wartime.
Overall, I think I would have dissented as the order was solely based on race and there was no means of due process in an appeal, but I see how they came to their conclusion. As far as legislating from the bench.... I'm not sure how that is a great example since they didn't do any re-write and had plenty of legal documents to observe.
On a sidenote:
Also, It would be great if SCOTUS reigned in the multiple illegal foreign wars that have not had a War Act signed for and been going on through multiple presidents of both parties.... That would be great.
Edit to add:
The travel ban majority explicitly stated against Korematsu v. United States and the Dicta now considers it no longer valid precedent for Law (subject to another case wherein that will be a holding matter to finalize things). I say that is a pretty big win...? Surprised that I didn't hear anything about that.