theargumentpresented by Justice Marshall that established a precedent on
the basis of which the American Supreme Court has the last word about the
constitutionality of statutes. 24 Korematsu vs. United States ( 1944 ), often (and
for good reasons) criticized because of its oYcial racial discrimination against
Japanese, established nonetheless the principle that made the Guantanamo
decision ( 2004 ) possible: that it is up to the courts, and the Supreme Court in
the last instance, to adjudicate if the measures taken by the Congress and the
president under emergency are compatible with the constitution 25 and pro-
portional to the threat. 26 Justices Jackson’s and Murphy’s dissenting opinions,
while they were possibly right concerning the legal consequences of the
speciWc controversy, seemed less sensible as precedent.
Justice Jackson, for example, argued that ‘‘It would be impracticable and
dangerous idealism to expect or insist that each speciWc military command in
an area of probable operations will conform to conventional tests of consti-
tutionality. When an area is so beset that it must be put under military
control at all, the paramount consideration is that its measures be successful,
rather than legal.... No court can require such a commander in such
circumstances to act as a reasonable man; he may be unreasonably cautious
and exacting. Perhaps he should be. But a commander in temporarily focus-
ing the life of a community on defense is carrying out a military program; he
is not making law in the sense the courts know the term. He issues orders, and
they may have a certain authority as military commands, although they may
be very bad as constitutional law.... if we cannot conWne military expedients
by the Constitution, neither would I distort the Constitution to approve all
that the military may deem expedient.’’ In eVect, Jackson was willing
to permit very wide and unreviewable discretion to the executive in times
of emergency in order to preserve the regular constitution from precedents
generated in exceptional circumstances. His view reXected the kind of
dualism reXected in the Roman model in that it insisted upon a strict
separation of the Constitution in normal times from the Constitution during
emergencies.
24 This is at least the standard interpretation of that momentous decision; even though one has to
recognize that the opinion became a precedent only quite late and that its immediate eVect may have
been overestimated.
25 Opinion by Black: ‘‘It should be noted, to begin with, that all legal restrictions which curtail the
civil rights of a single racial group are immediately suspect... courts must subject them to the most
rigid scrutiny.’’
26 Opinion by Black: ‘‘The power to protect [the country suspending fundamental rights] must be
commensurate with the threatened danger’’.
344 john ferejohn & pasquale pasquino