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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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A Workable Method

A Workable Method

(p.95) 6 A Workable Method
In the Shadow of Korematsu

Eric K. Yamamoto

Oxford University Press

This chapter discusses the task of methodology. How might a court ascertain the appropriate mode of review in a given security-liberty case, and how might the court effectively undertake that review? The chapter suggests a calibrated judicial review method that affords the government wide latitude in most national security matters, with courts adopting a posture of substantial deference. However, when the government claims pressing public necessity to legitimate measures that curtail fundamental liberties of citizens or noncitizens, careful judicial scrutiny takes over. With Korematsu as backdrop, the method delineates the mechanics for selecting the appropriate type of review in a given case. In doing so, it speaks to a judicial review conundrum generated by a briar patch of unexplained boilerplate language in numerous case opinions—opinions that first recite “the court’s substantial deference” to the executive on security matters, then follow with “but the court is duty-bound to protect constitutional liberties,” implicating careful scrutiny.

Keywords:   courts’ role, judicial review method, national security, fundamental liberties, deference, careful scrutiny, confidentiality, Korematsu, Youngstown framework, noncitizens

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