The Shadow Cursor: Zombies and Muslims

by The Shadow

Public opinion can be like a grave digger’s shovel.

From a legal standpoint, that there exists a debate as to whether a Muslim community center should open its doors blocks from Ground Zero represents a metaphorical grave-digger’s shovel – a shovel that could disinter creatures that should be resting in peace.

Some of these creatures include such legal “zombies” as Korematsu v. United States (holding that “the military urgency of the situation” justified indiscriminate internment of U.S. citizens of Japanese descent during WWII), Dred Scott v. Sanford (holding that descendants of African slaves were chattel and not people), and Cherokee Nation v. State of Georgia (denying the Cherokee nation standing to sue for protection from Georgia’s seizure of persons and property).

To mix metaphors, these jurisprudential “creatures of the night” came to represent legal window dressing for policies that were abhorrent: policies of unjustifiable collective punishment and disparate treatment of races and creeds. The only legitimacy of these policies was their popularity at the time of their implementation.

Andrew Jackson’s support of Indian removal was primarily motivated by his wish to placate southern states threatening secession over restrictions on slavery. Similarly, the issue of slavery festered from the beginning of our republic until its bloody resolution in the Civil War because of the politically expedient goal of maintaining the union at all costs. Historians agree that FDR’s internment of 120,000 Americans of Japanese descent was motivated more by a frenzy of public racism than by legitimate military need.

From a legal standpoint, what’s more tragic about these events was that they were each given the legal imprimatur of the U.S. Supreme Court, even after passage of the Bill-of-Rights amendments to the U.S. Constitution.

In retrospect, even a casual reading of the Korematsu, Dred Scott, and Cherokee Nation decisions demonstrates a stretching and manipulation of constitutional legal concepts beyond their legitimate breaking points. Korematsu is an example of the judiciary’s deference to the executive branch that failed even to try to balance the competing interests of national security and civil liberties. Dred Scott was based on a facially disingenuous definition of the term “citizen.” And Cherokee Nation represented a similar intellectual capitulation to the American nineteenth century Zeitgeist that included westward expansion at all costs.

In sum, our collective historical shame over slavery, the Trail of Tears, and WWII internment camps for innocent American citizens, was compounded by the judicial branch’s failure to properly offset the excesses of the executive branch. The judicial branch simply failed to perform its allotted task.

It now strains credulity to think that any politician would tolerate, not to mention encourage, a debate over the Manhattan Muslim cultural center. But plenty of them are. In this election year, politicians and pundits are calling for resistance to the opening of Islamic mosques not only in Manhattan, but all over the country.

That a municipality would deny Muslims the same right to worship where they please that a congregation of Christians or Jews would enjoy represents nothing less than a collective reprisal for the 9/11 attacks. This is not that far a cry from (if not a slippery slope to) the collective punishment that was clothed in the legal protection of Korematsu, Dred Scott, and Cherokee Nation.

Do we want such relics of legal history to rise from their graves, arms outstreched, fingers clawing, mouths agape, chanting, “must . . . suck . . . civil liberties . . . must . . . limit . . . religious freedom . . . must . . . eat . . . equal protection . . .”?

History tells us that when presented with the appropriate case or controversy, the judiciary should not worry about the grave digger’s shovel that is public opinion. The Bill of Rights can be considered an epitaph for what can sometimes be the tyranny of popular opinion. In reading and implementing the lessons of that epitaph the judiciary can make sure that Korematsu, Dred Scott and Cherokee Nation remain where they belong: six feet under ground.