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We Are All Heirs of the American Experiment

Here is a link to my opinion/commentary that was published in The Baltimore Sun on Christmas Day.  The full text appears after the break.

In this age of soundbites and cynicism, when what passes for political discourse consists of polarizing platitudes and unctuous bromides, it is often difficult to remain mindful of the grand experiment that is the United States. Perhaps it would be useful to step back and take the time to be reminded of who we are as a people, and the manner in which we must work together in the formation of a more perfect union.

For this purpose, I suggest a few words written 71-years-ago by Frank Murphy. He may be far from a household name, but he served as Franklin Roosevelt’s attorney general before being appointed by FDR to the Supreme Court. While he would become the author of several notable majority opinions, it is what he said in a dissenting opinion that I find worthy of our reflection.

The case was Korematsu v. U.S. Fred Korematsu was a Japanese-American living in San Leandro, California in 1942 when the Roosevelt administration issued Executive Order 9066, which gave the military broad authority to designate areas from which “persons” were to be excluded, and to transport and house such excluded persons elsewhere. The order was used to ultimately force the removal of more than 100,000 “persons of Japanese ancestry” from the West Coast states to internment camps as a wartime security measure. Mr. Korematsu was among those ordered to leave his home and be relocated to an internment facility. He refused, citing the habeas corpus prohibition against unlawful detention, and his Fifth Amendment right not to be deprived of life, liberty or property without due process.

Mr. Korematsu was arrested and convicted. His conviction was affirmed on appeal, including affirmance by the nation’s highest court in a 6 to 3 vote. Writing for the majority, Justice Hugo Black emphasized that Mr. “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast.”

Justice Murphy dissented from the ruling, which he felt sanctioned nothing less that “legalization of racism.” In doing so, he offered the following brief and eloquently stated defense of the ideals on which the nation was founded, and, in fact, are its reason for being: “Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.”

The worldwide threat of terrorism is obviously something that requires a response with our full resolve and utmost diligence. But when we are frightened into capitulation of our fundamental rights, we hand the terrorists victory over our ideals. Those rights and ideals are, after all, what, in our founding, set us apart from other nations. When we deny them to any of our citizens, we are all diminished. The benefits bequeathed to us in the Constitution come with the responsibility to maintain them for all of our people, and we must all be in that effort together.

These fundamentals of the American ideal should be a central part of our discussion of how best to maintain our security. A conversation that too often consists of bombastic appeals to the less honorable traits of human nature does our nation dishonor. Perhaps we would do well to read Justice Murphy’s words and think of who we really are.

Raymond Daniel Burke, a Baltimore native, is a principal in a downtown law firm. His email is

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