I’ve been trying to come up with a decent essay exam question for my constitutional law class tying Korematsu together with the whole debate over Michelle Malkin’s book. I tend to agree with the assessment that Malkin is incorrect, although I do it in the “fact-free” perspective that encourages me to trust experts like Eric Muller rather than from the perspective of actually having read the book.

The slippery bit to me is that—reading between the lines of Muller’s snarkiness and Malkin’s disingenuity—Malkin seems to argue that the indefinite detention of some Americans of Islamic faith would be legitimate, and that other forms of racial profiling targeted at all Muslim-Americans would be legitimate, but full-scale removal of Muslim-American populations wouldn’t, and I’m not sure Korematsu speaks to that. In my mind, though, Korematsu is bad law anyway, and I don’t think anyone other than Thomas and possibly Rehnquist would support reaffirming it today—Scalia, to judge from his partial dissent in Hamdi, would probably be viciously opposed.

Anyway, I’ve basically concluded the question is a bust and I’ll have to move on to ask something more fruitful about some other cases. Since I already have a Hamdi question I think Korematsu is no great loss—and a clever student or three will probably work it in without my asking, anyway.