전시 상태 미국에서 법치와 민주주의의 후퇴: 연방대법원의 1944년 고레마츠 대 미국 판결과 2018년 트럼프 대 하와이 판결을 중심으로 = Sacrificing the Rule of Law and Democracy in the United States during Wartime: The Case of Korematsu v. United States (1944) and Trump v. Hawaii (2018)

다국어 초록 (Multilingual Abstract)

In Korematsu v. United States (1944) and Trump v. Hawaii (2018), the U.S. Supreme Court upheld the government policies which restricted the rights and liberty of individuals belonging to minority groups. Korematsu ruled that the incarceration of Japanese Americans during World War Ⅱ was a legitimate government action facing foreign threats. Hawaii declared President Donald Trump’s Travel Ban, which targeted mostly Muslim-majority nations, as a lawful action of the executive power to protect the nation from the threats of terror. In her minority opinion, Judge Sonia Sotomayor compared Hawaii to Korematsu because both rulings showed almost unconditional deference towards the executive power that eroded the liberty of citizens and non-citizens belonging to minority groups without clear proof. Chief Justice John Roberts, the author of the majority opinion in Hawaii, refused to accept her comparison of Hawaii to Korematsu, suddenly declaring the overruling of Korematsu. By introducing the works of liberal law scholars, which reveal the striking similarities between Korematsu and Hawaii, this article shows that the principle of Korematsu has been reinscribed in Hawaii, not really being overruled. The remaining question after Korematsu and Hawaii is what the judiciary and civil society should do when the executive power in wartime restricts individual liberties and rights protected by the Constitution without providing obvious evidence to do so. Anyone who values the rule of law and democracy should be alarmed by the ways in which Hawaii allows the wartime executive power to infringe the human rights of immigrants and undermine civil liberties.