Had Jackson been able to persuade the Court, the judiciary would have
been essentially unable to protect rights during future emergencies. By
claiming that military questions are not for courts to decide, Jackson was
willing to conWne the court to adjudicating the legal eVect of those military
decisions after the fact. 27 He refused to impose any test of proportionality in
emergency circumstances eVectively giving the military carte blanche in those
circumstances. While he permitted legal redress for illegal actions taken
during emergencies—he refused to vote to convict Korematsu for violating
the detention order—such determinations are necessarily ineVective as rem-
edies for certain actions such as executions. So Jackson’s opinion would not
permit very much control of emergency actions ex post, and no control
whatever during the interim while the emergency is ongoing.
Unlike Jackson’s posture of temporary deference, Justice Murphy argued
that ‘‘it is essential that there be deWnite limits to military discretion, espe-
cially where martial law has not been declared.’’ In eVect, he defended a
monistic view of the Constitution—the view that there is a single constitu-
tional regime that governs at all times and that the circumstances of emer-
gency do not require any special constitutional procedures. ‘‘Individuals,’’ he
argued, ‘‘must not be left impoverished of their constitutional rights on a plea
of military necessity that has neither substance nor support. Thus, like other
claims conXicting with the asserted constitutional rights of the individual, the
military claim must subject itself to the judicial process of having its reason-
ableness determined and its conXicts with other interests reconciled.’’ Then,
he went on to argue that ‘‘no reasonable relation to an ‘immediate, imminent,
and impending’ public danger is evident to support this racial restriction
which is one of the most sweeping and complete deprivations of constitu-
tional rights in the history of this nation in the absence of martial law.’’ Justice
Murphy would have required the government to submit actions of this kind
to judicial determination and not permitted the executive the wide, if tem-
porary, discretion oVered by Justice Jackson. 28 Arguably, had his opinion
gained a majority, it would have limited the capacity or at least theXexibility
of the government to deal with circumstances of the kind represented by
27 Dissent by Jackson: ‘‘How does the Court know that these orders have a reasonable basis in
necessity? No evidence whatever on that subject has been taken by this or any other court.’’
28 Dissent by Murphy: ‘‘to infer that examples of individual disloyalty prove group disloyalty and
justify discriminatory action against the entire group is to deny that under our system of law
individual guilt is the sole basis for deprivation of rights.’’
emergency powers 345