Liberty in Wartime: Lincoln to Korematsu

Wars have repeatedly tested the Bill of Rights. In 1861 Abraham Lincoln suspended habeas corpus in parts of the country; Chief Justice Roger Taney, sitting as a circuit judge in Ex parte Merryman, ruled that only Congress could do so, but Lincoln did not comply.

After the war, in Ex parte Milligan in 1866, the Supreme Court ruled that civilians could not be tried by military commissions where civilian courts were open. During World War II, Executive Order 9066 in February 1942 led to the forced removal and incarceration of about 120,000 people of Japanese ancestry, most of them American citizens. In Korematsu v.

United States in 1944, the Court upheld the exclusion orders. Decades later, Fred Korematsu's conviction was vacated in 1983, Congress apologized and paid reparations in the Civil Liberties Act of 1988, and in 2018 the Court stated that Korematsu was gravely wrong the day it was decided. The episodes raise a recurring question: how much liberty may be limited for security?