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In the Shadow of KorematsuDemocratic Liberties and National Security$
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Eric K. Yamamoto

Print publication date: 2018

Print ISBN-13: 9780190878955

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780190878955.001.0001

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Jurisprudential Foundations

Jurisprudential Foundations

(p.77) 5 Jurisprudential Foundations
In the Shadow of Korematsu

Eric K. Yamamoto

Oxford University Press

This chapter examines how the dissonant treatment of Korematsu plays out in still intensely competing jurisprudential views of the court’s role in high profile security and liberty disputes. It describes and critiques the underpinnings for the exceedingly deferential all the laws but one approach rooted in the government’s broad national security and war powers. And it develops the contrasting call to vigilance with roots in the Supreme Court’s seminal embrace of watchful care over fundamental liberties in its Civil War case Ex Parte Milligan. The chapter then offers a jurisprudentially nuanced conception of judicial independence, discussing works by prominent American, British, and Israeli jurists and scholars. The chapter closes by highlighting Justice Sonia Sotomayor’s observation that in recent years courts have made a “modicum of progress” in generating a better balance of security and liberty, while acknowledging Professor Own Fiss’s spotlight on the judicial penchant for backsliding.

Keywords:   jurisprudence, war on terror, court’s role, national security, civil liberties, checks and balances, William Rehnquist, Aharon Barak, Korematsu, Ex Parte Milligan

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