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"Much
is said of the danger to liberty from the Army program for deporting and
detaining
these
citizens of Japanese extraction. But a judicial construction of the
due process clause
that
will sustain this order is a far more subtle blow to libertythan
the promulgation of the
order
itself. A military order, however unconstitutional, is not apt to last
longer than the
military
emergency. Even during that period a succeeding commander may revoke it
all.
But
once a judicial opinion rationalizes such an order to show that it conforms
to the
Constitution,
or rather rationalizes the Constitution to show that the Constitution sanctions
such
an order, the Court for all time has validated the principle of racial
discrimination in
criminal
procedure and of transplanting American citizens. The principle then lies
about like
a
loaded weapon ready for the hand of any authority that can bring forward
a plausible
claim
of an urgent need."
.
Justice Jackson dissenting,
