Render unto Caesar the things that are Caesar's, and unto God the things that are God’s.
Congress shall make no law . . . prohibiting the free exercise [of religion. . . . 
Reynolds v. United States involved polygamy in the then-territory of Utah.
The Mormon Church — officially the Church of Jesus Christ of Latter-day Saints — was founded in the United States of America in 1830, and many of its adherents settled in the then-territory of Utah.
Congress had enacted a statute criminalizing polygamy. That meant the Free Exercise Clause of the First Amendment of the federal Constitution was involved, not “due process” of the Fourteenth Amendment, because there was no stateinvolvement.
The federal felony statute provided that “Every person having a husband or wife living who marries another whether married or single in the territory or other place over which the federal government has jurisdiction is guilty of bigamy and shall be punished by a fine of not more than $500 and by imprisonment for a term of not more than five years.”
Set squarely against this federal anti-bigamy statute was the scriptural duty of male Mormons to practice polygamy. Even the Supreme Court unanimous decision/opinion in Reynolds would acknowledge that
this duty was enjoined, required by different books which Mormons believe to be of divine origin, that the members of the church believe that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, that the failing or refusing to practice polygamy by such male members would be punished and that the penalty would be damnation in the life to come.
It is easy for non-Mormons and non-believers to scoff at that religious requirement, but it was real to Mormons and impaled them on the horns of a dilemma: renounce and be damned, or render unto God and go to prison.
If a Mormon rendered unto Caesar that which was Caesar’s by obeying the federal law, he affronted God and thus believed himself damned. But if he rendered unto God that which was God’s and thus broke the law by practicing polygamy, Caesar was going to throw him into prison for five years and fine him $500. Then, once Reynolds did the five years, was released, and continued to practice polygamy as his God demanded, he would probably go back to prison. A cruel, repetitive, seemingly unconstitutional choice.
God won the first round. In accordance with the rituals and dictates of the Mormon religion, Reynolds took a second bride while married to his first wife.
Caesar was not amused.
The federal government indicted Reynolds for violation of the anti-bigamy statute.
Predictably, and naively, he defended on the ground that the First Amendment guaranteed him the right freely to exercise his religion.
He was convicted in the territorial court, sentenced to prison, and eventually the case reached the Supreme Court of the United States.
The Supreme Court affirmed Reynolds’s conviction. That was bad enough. But the reasons given by the Court were worse.
Chief Justice Waite, writing for the unanimous Court, invoked English history. England, a country with its own national church, had never enjoyed a “free exercise” religious guarantee, nor even a written constitution.
Moreover, Reynolds was an American citizen, accused of violating American law, being judged by American courts, defending himself with the Free Exercise Clause of the First Amendment to the Constitution of the United States of America.
The Court even resorted to nose-counting with a clear racist implication, to buttress its conclusion that
Polygamy has always been odious among the northern and western nations of Europe, and until the establishment of the Mormon Church was almost exclusively a feature of the life of Asiatic and of African people.
Translation: “Our civilized tribe here in the good-old of USA doesn’t engage in such uncivilized practices.”
The nations of northern and western Europe before and at that time had hardly been paragons of religious toleration, nor had they possessed political and legal systems that protected individual rights and fostered limited government. Ask, for example, the Catholics in England.
Moreover, it was the height of intellectual condescension for the Court to distain out-of-hand a practice accepted by many religions. For example, the highly respected Roman law recognized concubinage, a practice akin to polygamy. Throughout history, there have been accepted relationships between married men and their mistresses, and men and women who maintain simultaneous romantic and/or sexual relationships.
Well, if the Supreme Court’s conclusion could not legitimately rest on English history, on abhorrence of savage practices, and the many years of accepted multiple relationships, what was it based on?
The altruist-collectivist-statist meter will tell us.
The Court’s unanimous opinion observed that Congress was “free to reach [i.e., to criminalize] actions which were in violation of social duties” and “there has never been a time in any State of the Union when polygamy has not been an offense against society. . . .” (My italics.)
Since there is no such thing as “society,” just lots of other people who weren’t Mormon Reynolds, the Court was saying that his, and the rest of the Mormons’, religious duty would be sacrificed to the societal tribe’s moral standards, backed by the coercive power of the federal government.
An “offense” against whom? Against the morally puritanical Americans whose moral prejudices had caused Congress to enact the anti-polygamy law in the first place, the president to approve it, the prosecutors to enforce it, the jurors to apply it, and the various courts to uphold its constitutionality?
“Society — the lots-of-other-people-but-not-the-Mormons — opposed polygamy, so society’s values prevailed. No matter the cost to Mr. Reynolds personally, and all Mormons generally.
Yet there was another argument that Reynolds could and should have made but did not. Apart from his religious duty, Reynolds like all Americans was a free American who should have been able to engage in any constitutionally-protected conduct until his actions violated another’s properly understood rights.
Reynolds’s polygamous relationships did not violate anyone else’s rights, yet his were violated by other Americans—by “society.”
Once the door of sacrificing of individuals to the collective is opened even slightly, effectuated by statist laws such as the one that sent Reynolds to prison, it is a slippery slope into the abyss.
 According to Wikipedia, this is the beginning of a phrase attributed to Jesus in the synoptic gospels, which reads in full, “Render unto Caesar the things that are Caesar's, and unto God the things that are God’s. [Matthew 22:21]  First Amendment, Constitution of the United States of America.  Presumably, the statute would apply not only to any male (Mormon or not) marrying more than one female, and vice versa. To whatever extent the Mormon religion requires or countenances male practitioners marrying, or outside of marriage having sexual relations with, underage girls, that conduct should be condemned as immoral and prosecuted as a serious crime. Statutory rape is statutory rape, no matter if its motive is religious. Whatever sympathy one might have for Mormon religious practices should be reserved for consenting adults exercising a religious duty imposed under threat of eternal damnation, a duty one would think was protected by the express language of the First Amendment’s “free exercise” Clause.  See, for example, the Spanish Inquisition.
“Miserable merchants of unwanted ideas, their wares remain unsold”
Contrary to popular belief, the free speech guarantee of the First Amendment — Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . — was never intended to be, nor ever was, absolutely “free.” Even some of the most illustrious Founders — including the major author of the Declaration of Independence, Thomas Jefferson — believed speech could be limited, even suppressed, “in a good cause.”
And it has been. Defamation is actionable civilly, hard-core and child pornography is a crime, “fighting words” or a “hostile audience” situation can provoke an arrest, “commercial speech” is second-hand speech, and more.
Of the various categories of speech, the suppression of one in particular exposes the altruist-collectivism-statism axis better than most others: Subversive advocacy.
Regarding the former, I want to turn back the clock about a century.
Eugene V. Debs was twice a rabble-rousing Socialist candidate for President of the United States. He was indicted for ranting against the government in general and the draft in particular. Convicted, he went to prison. The Supreme Court affirmed his conviction. Debs was imprisoned for pure speech.
About the same time, Whitneyv. California was a case brought in that state under the California Criminal Syndicalism Act. The charge was that Anita Whitney organized, assisted in organizing, and became a member of a group that would later advocate overthrow of the U.S. government. Although she did not actually do anything, Whitney met the same fate as Debs.
During World War I, an antiwar activist named Schenck and others produced an antidraft handbill. One side argued that the draft law constituted slavery and involuntary servitude in violation of the Thirteen Amendment to the Constitution of the United States of America.
According to the Supreme Court opinion,
In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, “do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for repeal of the act. The other . . . side of the sheet was headed “Assert your rights.” It [claimed that the Constitution was violated by anyone who] refused to recognize “your right to assert your opposition to the draft,” and went on, “if you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. (My italics.)
If the “deny or disparage” and “rights retained” language sounds familiar it is because it is taken from the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Supreme Court opinion continued:
[The handbill] described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves . . . winding up “You must do your share to maintain, support and uphold the rights of the people of this country.
Even though the anti-draft handbill was “pure speech,” and even though Schenck’s defense was the First Amendment, he and others were convicted of violating the Espionage Act, causing insubordination in the military forces, and obstructing the government’s recruitment and enlistment efforts.
Associate Justice O. W. Holmes (a wounded combat veteran of the Civil War) wrote for a unanimous Court that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . . .” (My italics.)
Speech as a hindrance—in a war against slavery and secession, defending the principles of the Declaration of Independence, the Constitution, and the Bill of Rights’ First, Ninth, Thirteenth Fourteenth and Fifteenth Amendments.
A hindrance, like Fred Korematsu and other Japanese-Americans, during the next war!
Schenckwas an important Supreme Court decision not only because it held that in wartime even pure political speech could be suppressed to aid the war effort, but also because it lay the foundation for the Supreme Court’s decision/opinion some three decades later in the infamous “Smith Act” case. Debs, Whitney and Schenck cases a were prologue to Dennis v. United States. 
Dennisinvolved the Communist Party of the United States. Dennis and others were indicted for having conspired
to organize as the Communist Party of the United States of America a society . . . of persons who . . . advocate the overthrow and destruction of . . . the United States by force and violence, and knowingly and willfully to advocate . . . the duty and necessity of overthrowing and destroying . . . the United States by force and violence. (My italics.)
Note that they were indicted under a federal statute for organizing an entity, which once organized would then advocate.
Now, a slight digression. In criminal law, a conspiracy is (1) an agreement (which can be oral) to do an illegal act, (2) coupled with an overt act (even a legal act) in furtherance of the agreement. Two people agree to rob a bank and realize they need a getaway car. One of them buys a Chevy. That is a consummated, prosecutable conspiracy.
The defendants made a free speech defense. In upholding their convictions, Supreme Court Chief Justice Fred Vinson stated categorically that
Speech is not an absolute, above and beyond control by the legislature, when its judgment, subject to its review here [of course!], is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes. [I wonder if the Chief Justice was absolutely certain of that.] To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. (My italics.)
Based on this judicial babble, American citizens (albeit, Communists) went to jail for organizing to advocate concerning an impending threat. The Congress and the Court were protecting us from “a semantic straitjacket” because “all concepts are relative.”
If, from the very first days of this nation, restraints on speech were not uncommon, if no less a patriot than Founder Thomas Jefferson believed that states could (and sometimes should!) censor speech and that a selective prosecution now and then of an unpopular speaker or newspaper editor was desirable, if during World War I anti-draft activists could be sent to jail for quoting the Ninth and Thirteenth Amendments, if American Communists could be sent to prison for merely agreeing to organize and advocate, if there are no absolutes and all concepts (such as liberty, freedom, individual rights and limited government) are relative, no one should be surprised that truly free speech has never existed in the United States.
For the benefit of the many, at the expense of the few.
In a few words, Associate Justice William O. Douglas’s dissent made a point so well expressed that I always wished I had written them. He wrote of the Denniscommunists that “[i]n America they are miserable merchants of unwanted ideas; their wares remain unsold.”
But, sadly, that was not enough to keep them out of prison.
Another, pornography, will be discussed in a subsequent blog.
 I dedicated an earlier book—Speaking Freely: The Case Against Speech Codes—to “Jacob Abrams, Joseph Beauharnais, Walter Chaplinsky, F. J. Chrestensen, Eugene V. Debs, Ralph Ginzberg, Benjamin Gitlow, Charles T. Schenck, Charlotte Anita Whitney, and the too many others who offended merely by speaking words the authorities did not wish to hear. It matters not that some of those words may have been odious. Because the speakers were in America, they had a right to speak.”
“They all look alike to a person not a Jap”  In the past several years a few conservative commentators have advanced an argument justifying the United States government’s arrest and incarceration of Pacific Coast American citizens during World War II. One would think that the federal government’s summary concentration of citizen-evacuees in barb-wired, armed guard-towered camps was not only immoral, but would be held unconstitutional by the Supreme Court of the United States. A majority of the Supreme Court of the United States (including the Jewish associate justice, Felix Frankfurter) ruled otherwise.
The day after the devastating Japanese December 7, 1941, sneak attack at Pearl Harbor (and elsewhere in the Pacific), the United States declared war.
Here in America, events moved quickly.
With the avowed goal of preventing espionage and sabotage, President Roosevelt issued Executive Order No. 9066, allowing the military to create zones within the United States “from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Military Commander may impose at his discretion.” The Order was silent about where our citizens were headed, how they would be transported, the conditions they would be forced to endure once there or how long they would be incarcerated.
Next, the military issued Public Proclamation No. 1: The entire Pacific Coast was subject to Japanese attack and espionage, military zones were being established, and exclusions from those zones of American citizens and others would be enforced.
On March 21, 1942, Congress enacted a law making it a misdemeanor-level crime to “enter, remain in, leave, or commit any act in any military area or military zone contrary to the Military Commander’s orders,” a curfew was imposed, exclusion orders issued, and everyone in Korematsu’s area was prohibited from leaving. A World War II lockdown! Come May, all persons of Japanese ancestry — noncitizens and American citizens alike — were to be excluded from Korematsu’s zone.”
As Justice Roberts explained in his dissent,
The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942. * * * The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. (My italics.)
[Military Commander] General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document — and in the light of the above recitation, I think it is not — that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. (My italics throughout.)
In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner [Korematsu] did nothing.
[At this moment in June 2020, as I write Justice Roberts’ words — “drive all citizens of Japanese ancestry into Assembly Centers” as an integral tool of the “[program] of evacuation and relocation of Japanese,” the Assembly Centers being “a euphemism for a prison”— I am literally experiencing “goose bumps,” as my mind leaps to what was happening at that very moment in March 1942 in Nazi-occupied Europe. The Nazi’s were driving Jews into ghettoes, as an integral tool of the Master Race’s program of evacuation and relocation, and then to concentration camps in furtherance of the “final solution.”]
Mr. Korematsu was luckier. He was merely indicted in a United States Federal Court.
Convicted of remaining in a place he was legally unable to leave, his sentence was suspended, with five-years’ probation. Doubtless, the leniency was because, as Justice Roberts observed, after the legal proceedings Korematsu was immediately taken into military custody and “confined either in an Assembly Center . . . or has been moved to a Relocation Center. . . .”
Against this factual background, the Supreme Court had to decide whether Koramatsu’s exclusion — actually, the entire federal government exclusion scheme — was constitutional.
In an opinion written by former member of the Ku Klux Klan, Associate Justice Hugo Black, the Supreme Court upheld the prison-like “relocation” scheme.
Even though the Court’s majority was quick to recognize that “most” Japanese-Americans “were loyal to this country,” Black wrote:
. . . we are not unmindful of the hardships imposed by [the Relocation scheme] upon a large group of American citizens. * * * But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. (My italics.)
* * *
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. 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 temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.
Black’s majority holding was that the Relocation scheme was constitutional. The exclusion and relocation of Korematsu and the others was sanctified because, under the circumstances, it was necessary.Pragmatically speaking, deprivation of their freedom “worked.”Former law professor Felix Frankfurter concurred with the majority’s decision, and with Justice Black’s opinion for the Court. The last two sentences of Frankfurter’s concurring opinion were these:
To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours. (My italics; see Endnote 3.)
Six justices were in the Court’s majority, five concurring in Black’s opinion. Only Frankfurter wrote a concurrence.There were three dissents.Roberts’s was disappointing, in the extreme. Although characterizing the Assembly Centers as “concentration camps,” he failed to object to their existence. He dissented only because of opposition to the exclusion’s extent and permanence. Not with the government’s constitutional power to assemble and relocate.As a matter of fact, Roberts conceded that “[t]he liberty of every American citizen freely to come and go must frequently, in the face of sudden danger, be temporarily limited or suspended.”While Justice Murphy’s muddled dissenting opinion deplored “the ugly abyss of racism,” his quarrel was with the facts: he saw no sufficient military necessity for the exclusion. Like Roberts, Murphy accepted the principle that sometimes the end justifies the means. Just not this time.The third dissent was Justice Jackson’s:
Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.
Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. [Gone if he did, gone if he didn’t] (My italics.)
A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four — the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole — only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. (My italics.)
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.Although Justice Jackson’s words were written in 1944, his were not the last ones spoken by a Supreme Court justice about the Korematsu case. In May 2011,
Justice Antonin Scalia told students in Hawaii . . . that the Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.
Speaking at the University of Hawaii law school, Scalia responded to a question about the 1944 ruling, which upheld an executive order that required the detention of Japanese Americans during World War II, the Associated Press reports.
“Well, of course, Korematsu was wrong,” Scalia said. “And I think we have repudiated it in a later case. But you are kidding yourself if you think the same thing will not happen again.”
At the time, Scalia said, there was “panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality.”
Korematsu has never been explicitly overruled because there has not been a similar controversy before the court, the New York Times reported last week. The court could get a chance to do so, however, in a case involving the military detention without trial of people accused of aiding terrorism. A cert petition asking the court to overturn the federal law authorizing such detentions says the justices should consider overruling Korematsu. A federal appeals court had dismissed the case, Hedges v. Obama, on standing grounds. Even if the Supreme Court denies review, it could add a statement renouncing Korematsu, according to lawyer Peter Irons, who helped the Korematsu name plaintiff overturn his conviction for violating a detention order. Irons has joined with other lawyers in asking the solicitor general to ask the court to overturn the 1944 decision.Among the several lessons to be learned from Korematsu v. United States, two stand out. One is that the Relocation scheme was tainted with anti-Japanese racism from its inception. The other is that racism’s fuel is the government’s sacrifice of some individuals to the needs and wants of others, especially those in power. In Korematsu, Japanese-Americans’ liberty was sacrificed to the fear and racism of others. That deprivation was morally and constitutionally wrong, no matter how scared many other Americans were of a Japanese seaborne invasion originating some 5,000 miles away.And for good measure, shame on Justice Scalia.  Hugo Black, justice of the Supreme Court of the United States. As I wrote in Sweet Land of Liberty? (https://www.amazon.com/Sweet-Land-Liberty-Supreme-Individual/dp/0595139655), “[h]ow ironic that Japan did not subjugate us militarily in World War II, leaving our basic freedoms intact, while our own government undermined them by sacrificing the individual rights of some citizens to the racist fears of others.” Racism, as Ayn Rand has pointed out,
. . . is the lowest most primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man’s genetic lineage—the notion that a man’s intellectual and characterological traits are produced and transmitted by his internal body chemistry. Which means, in practice, that man is to be judged, not by his own character and actions, but by the character and actions of a collective of ancestors. (Ayn Rand, “Racism,” The Virtue of Selfishness, The New American Library, 1965, p. 172.
One wonders what the precedential implications of the Court’s decision/order in Korematsu would be if a case reaches the Supreme Court challenging the COVID-19 lockdowns.  See M’Culloch v. Maryland, in an earlier blog.  Evidence of the Military Commander’s attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40 (78th Cong. 1st Sess.): “I don’t want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast * * * The danger of the Japanese was, and is now — if they are permitted to come back — espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. . . .”His final report referred to all persons of Japanese ancestry as “subversive,” as members of “an enemy race,” whose “racial strains are undiluted, and as constituting over “112,000 potential enemies. . . at large today” along the Pacific Coast.” Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J.L. DeWitt. Dated June 5, 1943, the Report was not made public until January 1944. (My italics throughout.)
 See Debra Cassens Weiss, ABA Journal, February 4, 2014.
See also, Debra Cassens Weiss, ABA Journal, March 24, 2011, “Acting SG [Solicitor General] Katyal Tells of Mistakes by a Predecessor in World War II Internment Case”:
Acting Solicitor General Neal Katyal is condemning mistakes made by a predecessor who defended the internment of more than 100,000 Japanese-Americans during World War II.
Katyal made his statement in a “distinctly 21st century way”— through a post at The Justice Blog, the Associated Press reports. The BLT: The Blog of Legal Timesalso has the story. Katyal criticized former Solicitor General Charles Fahy for misleading the U.S. Supreme Court in 1943 and 1944 when he defended the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.
Katyal says Fahy failed to tell the U.S. Supreme Court about an intelligence report that found only a small percentage of Japanese-Americans posed a security threat, and the most dangerous were already known or in custody. Fahy also failed to tell the court that reports of radio communications between Japanese-Americans and enemy submarines had been largely discredited, Katyal writes.
The Supreme Court upheld the convictions of Hirabayashi and Korematsu, and it took nearly a half century to overturn them. Both stories quote University of California political scientist Peter Irons, who in 1981 unearthed the documents showing Fahy’s omissions. “It’s very nice, and long overdue,” he told the BLT.
It is unlikely that whatever the Solicitor General’s evidentiary failings were, the six justice Supreme Court majority would have been swayed. After all, there was a war on! “The need for action was great, and time was short.”
Several years ago I wrote a lengthy (49 pages) monograph with the above title, drawing on non-mainstream historical research which makes the case that President Harry S. Truman, aided and abetted by the Joint Chiefs of Staff, facilitated Kim Il-sung's "surprise" invasion of North Korea.
While many historians hold that the genesis of what America faces today from North Korea's nuclear threats began with the 1950 invasion, the fact is that it began at least five years earlier when the Soviet Union -- new to the Pacific War -- took the Japanese surrender in Manchuria.
"Constitutionality" in the Name of Morality
By now, much of the adoration heaped on the three Kennedy brothers has melted under the glare of revelations about their private lives. Jack’s whoring, Ted’s alcoholism and Chappaquiddick, Bobby’s post-Jack hand-off dalliance with Marilyn Monroe.
What is not well known about RFK, however, is how as Attorney General of the United States he used interpretations of the United States’ Constitution’s Commerce Clause in M’Collum, Gibson, and Wickard to violate the property rights of uncountable citizens of this country, ironically wrapping himself in a cheap appeal to morality.In 1964, . . . Congress and the Supreme Court teamed up to use the Interstate Commerce Clause as an engine of moral righteousness.
The Heart of Atlanta Motel — a privately owned, local establishment — had 216 rooms available to transient guests. Accessible to two interstate highways, the motel solicited business through national advertising and some fifty billboards and highway signs throughout Georgia. The motel served conventioneers from outside Georgia, and about 75 percent of its registered guests were from outside the state. The Heart of Atlanta Motel, however, was physically within the State of Georgia.
Ollie’s Barbecue was a privately owned restaurant in Birmingham, Alabama, catering to a family and white-collar trade, specializing in barbecued meats and homemade pies. It had a seating capacity of 220 and was located on an Alabama state highway eleven blocks from an interstate. Bus stations and a railroad were not far away. Ollie’s Barbecue purchased about half of its food from a local supplier who, in turn, procured it from outside Alabama. Ollie’s Barbecue, however, wasphysically within the State of Alabama.
Both Heart of Atlanta Motel and Ollie’s Barbecue had inflexible policies against accommodating Negroes, the establishments’ owners believing that because the businesses belonged to them, they could indulge their racist attitudes and decline to serve whomever they pleased.
For many years preceding the civil rights movement of the Sixties, countless Americans, Northerners and Southerners alike, rightly considered racial discrimination ignorant, vile, immoral, and un-American. Not only discrimination by government (e.g. , the South’s Jim Crow laws), but also by private individuals and entities where it was not uncommon to find even Northerners practicing racial and religious discrimination against Negroes and Jews.
Following World War II, gains started to be made against official racial discrimination at the federal, state, and local levels, and the Supreme Court’s landmark 1954 school desegregation decision in Brown v. Board of Education was the spark that ignited the largely successful organized Civil Rights Movement.
But not everything that movement spawned was defensible, as the Heart of Atlanta and Katzenbach(Ollie’s Barbecue) cases prove.
Brown v. Board of Education had invoked the Equal Protection Clause of the Fourteenth Amendment — “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws” — against official, government racial discrimination. (My italics.)
But that wasn’t good enough for some people, who had no difficulty ignoring the crucial distinction between public and private discrimination. It was not enough for them — rightly — to attack government racial discrimination. They insisted on prohibiting and punishing also private racially discriminatory choices made by all the Heart of Atlanta Motel and Ollie’s Barbecue-type establishments throughout the United States.
This public-private dichotomy is of utmost importance generally, and all the more so when racial discrimination is involved. It is axiomatic that government, at all levels, must not discriminate racially. However, as irrational and immoral as private racial discrimination is, the Constitution does not prohibit it. No more than it bars gigolos from marrying spinsters for their money, penalizes parental indifference to their children’s spiritual needs, or punishes religious bigotry. Indeed, the very nature of a free country, embodied in its Constitution, distinguishes between public and private morality.
As much as victims of racial discrimination had a constitutional right to nondiscriminatory treatment by their government, and a moral right to it from other individuals, those rights were not the same. To attempt a synthesis of the two — to hold that the Constitution required private individuals to eschew racial prejudice — was, in effect, to make government the arbiter of private morality. It was also to erase the difference between public and private conduct, to compel some people to fulfill the aspirations of others (however legitimate) and, in so doing, to ignore the fact that it is a contradiction to try vindicating supposed “rights” of some by violating the actualrights of others. Let alone to sacrifice the private values and choices of some to the collective’s moral philosophy. Let alone by applying the compulsive force of collectivist statist government.
None of these distinctions, however, or anything else, prevented some militant antidiscrimination forces from attempting to convert Negroes’ moral rights into their constitutional rights concerning the use of other people’sprivate property.
How could they accomplish that?
Since the antidiscrimination forces couldn’t use the Fourteenth Amendment against the motel and restaurant (no state was denying equal protection or due process), they tried another tactic. Instead of relying on the Bill of Rights, they sought to enact a federal statute.
Thus, in the early Sixties a broad-based federal Civil Rights Act was proposed. It was to be based on not the Fourteenth “state action” Amendment, but on an entirely different constitutional provision, the Interstate Commerce Clause. The ghost of Chief Justice John Marshall was arisen.)
One section of the proposed act was intended to prohibit private racial discrimination in a wide range of so-called “public accommodations.” Motels and restaurants, for example.
Although the bill had many congressional supporters, there were serious reservations about whether Congresscould legitimately reach the private racially discriminatory practices of local business establishments. Senate hearings in 1963 spotlighted the problem, as the record reveals:
Attorney General [Robert] Kennedy: We base this [proposed legislation] on the commerce clause.
Senator [Almer] Monroney: . . . many of us are worried about the use the interstate commerce
clause will have on matters which have been for more than 170 years thought to be within the realm of local control under our dual system of State and Federal government [federalism].
Senator Monroney: I strongly doubt we can stretch the interstate commerce clause that far . . . .
Senator Monroney: If the court decisions . . . mean that a business, no matter how intrastate in its nature, comes under the interstate commerce clause, then we can legislate for other businesses in other fields in addition to the discrimination legislation that is asked for here.
Attorney General Kennedy: If the establishment is covered by the commerce clause, then you can regulate; that is correct . . . .
Senator [Strom] Thurmond: Mr. Attorney General, isn’t it true that all of the Acts of Congress based on the commerce clause . . . were primarily designed to regulate economic affairs of life and that the basic purpose of this bill is to regulate moral and social affairs?
Attorney General Kennedy: . . . I think that the discrimination that is taking place at the present time is having a very adverse effect on our economy.
Even though Kennedy was trying to invoke the Interstate Commerce Clause as the justification for the “public accommodations” section of the Act, he and the senators knew better:
Attorney General Kennedy: Senator, I think that there is an injustice that needs to be remedied. We have to find the tools with which to remedy that injustice . . . .
Senator [John Sherman] Cooper: I do not suppose that anyone would seriously contend that the administration is proposing legislation, or the Congress is considering legislation, because it has suddenly determined, after all these years, that segregation is a burden on interstate commerce. We are considering legislation because we believe, as the great majority of people in our country believe, that all citizens have an equal right to have access to goods, services, and facilities which are held out to be available for public use and patronage.
Senator [John] Pastore:I believe in this bill because I believe in the dignity of man, not because it impedes our commerce. I don’t think any man has the right to say to another man, you can’t eat in my restaurant because you have a dark skin; no matter how clean you are, you can’t eat in my restaurant. That deprives a man of his full stature as an American citizen. That shocks me. That hurts me. And that is the reason why I want to vote for this law. Now it might well be that I can affect the same remedy through the commerce clause. But I like to feel that what we are talking about is a moral issue, an issue that involves the morality of this great country of ours. (My italics throughout.)
This scheme of reforming the moral failings of private citizens by an even more tortured interpretation of the Interstate Commerce Clause than already existed under the M’Culloch-Gibbons-Wickardaxis of cases, found its way into the Senate Hearing Report:
The primary purpose of . . . [the “public accommodations” section of the Civil Rights Act], then, is to solve this problem, the deprivation of personal dignitythat surely accompanies denials of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. (My italics.)
This was, of course, a confession that the Commerce Clause was being stretched beyond any legitimate meaning, which was not a secret to most members of Congress. Indeed, they were not the only ones having serious reservations about extending federal Commerce Clause power so far as to control the private racial choices made by local business establishments. One of America’s most distinguished constitutional law authorities, Professor Gerald Gunther, informed the Department of Justice, unequivocally, that use of the Commerce Clause to bar privateracial discrimination in local places of “public accommodation” would be unquestionably unconstitutional:
The commerce clause “hook” has been put to some rather strained uses in the past, I know; but the substantive content of the commerce clause would have to be drained beyond any point yet reached to justify the simplistic argument that all intrastate activity may be subjected to any kind of national regulation merely because some formal crossing of an interstate boundary once took place . . . . The aim of the proposed antidiscrimination legislation, I take it, is quite unrelated to any concern with national commerce in any substantive sense. It would, I think, pervert the meaning and purpose of the commerce clause to invoke it as the basis for this legislation.
Despite the reservations of many knowledgeable people, the Civil Rights Act of 1964 was enacted, resting on the power granted to Congress in the Interstate Commerce Clause of Article I, section 8. Eventually, the constitutionality of the Act’s “public accommodations” section was before the Supreme Court of the United States.
The question for the Court in Heart of Atlanta and Katzenbach was the same: Did Congress exceed its constitutionally delegated powers under the Commerce Clause when it compelled the private owners of local businesses to serve customers whom they declined to serve for racially motivated reasons?
With the ghosts of John Marshall and Robert Jackson looking over their shoulders, the nine Justices of the Warren Supreme Court unanimously upheld the “public accommodations” section of the Act as a constitutionally acceptable exercise of Congress’s power under the Commerce Clause.
To reach that result, the Court relied on earlier cases in which it had allowed Congress to regulate such aspects of business as the sale of products, wages and hours, labor relations, crop control, and more—all because those aspects had some connection, no matter how tenuous, with interstate commerce.
Those precedents, together with the motel’s and restaurant’s albeit tenuous relationships with interstate commerce — through the former’s customers and the latter’s food purchases — were deemed sufficient by the Court to allow Congress to impose the Act’s “public accommodations” prohibition on the two privately owned local businesses. The Court’s rationale in both Heart of Atlanta and Katzenbach, though lengthy, speaks for itself:
While the Act as adopted carried no congressional findings the record congressional record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. * * * This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight . . . and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself “dramatic testimony to the difficulties” Negroes encounter in travel.* * *
These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is “no question that this discrimination in the North still exists to a large degree” and in the West and Midwest as well. * * *
This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. ***
This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his “belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.” We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. (Heart of Atlanta Motel, Inc. v. United States)
In Katzenbach v. McClung, the Court stated that:
Article I, s 8, cl. 3, confers upon Congress the power “to regulate Commerce * * * among he several States” and Clause 18 of the same Article grants it the power to make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” * * * This grant, as we have pointed out in Heart of Atlanta Motel ”extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.”
* * *
[Even if Ollie’s Barbecue] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” * * * [Here, the Court cited Wickard v. Filburn.] The activities that are beyond the reach of Congress are “those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” [Here, the Court cited Gibbons v. Ogden.] This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago.
* * *
The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid. (My emphasis throughout.)
In sum, because Negroes were wrongly, indeed immorally, discriminated against by local, private, non-governmental businesses that had tenuous connections with interstate commerce, and because as a moral imperative Bobby Kennedy, Congress and the President wanted to remedy that situation, the government justified “public accommodations” legislation on the basis of the Interstate Commerce Clause—even though United States senators, the attorney general of the United States, and eminent constitutional law scholars, let alone legal academics and practitioners, knew very well that the clause was never intended for that purpose and to use it to rectify a moral wrong was patently unconstitutional.
Even worse, if that’s possible, is that the Supreme Court of the United States went along with the charade, building on Chief Justice Marshall’s opinions in M’Culloch and Gibbons, Jackson’s opinion in Wickard, and like opinions by other justices in the 150 years between McCulloch and Heart of Atlanta/Katzenbach.
Shamelessly and perversely, all of them engineered the seizure of private property in the name of holier-than-thou “morality.”
Heart of Atlanta and Katzenbachraised a profoundly important question: If a core founding principle of this nation is the republican institution of federalism — as reflected in the delegation of enumerated powers to Congress and the Tenth Amendment’s reservation of power to the states and its people — are there any limits to the statutory reach of the Interstate Commerce Clause power when a collectivist-statist Congress chooses to employ it to intervene in matters of profoundly personal moral choices, using the clause as a tool to sacrifice some people to the needs of others?
Sadly, the answer is “no.”
 Because the Fourteenth Amendment did not reach federal action, in a companion case to Brown v. Board of Education involving racial segregation in District of Columbia public schools the Supreme Court ruled that the Due Process Clause of the Fifth Amendment, which applied only to the federal government, possessed “equal protection content.”  See Gerald Gunther, Constitutional Cases and Materials, 10th ed., p. 203. It is worth noting that neither the senators nor Professor Gunther objected to the “public accommodations” provision of the proposed Civil Rights Act as such. It was fine with them that private businesses operating locally could be required by the federal Congress to lose their racially motivated choices. As we’ve seen, the opposition was limited not to the principle at stake, but rather to theconstitutional basis for the prohibition of private choice, preferring not the Commerce Clause but rather the Fourteenth Amendment (which could not have applied because of its state-action requirement).  Hearings before the Senate Committee on Commerce on S. 1732, 88th Cong. 1st Sess., parts 1 and 2.  Justice William O. Douglas concurred in Katzenbach v. McClung, confessing that for him there were no limits of any kind on the scope of the Commerce Clause—not since Congress, according to Douglas, possesses the “power to regulate commerce in the interests of human rights” (my italics). How far that power could extend is limited only by one’s imagination, and by every real and supposed moral and other wrong afflicting our nation.