Thirteenth Amendment, white supremacy, persons of color, Japanese Americans, racial equality, strict scrutiny test, legislative primacy, banned categories, Fourteenth Amendment


Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided progressives with important doctrinal tools that they later employed when building a more egalitarian future. Chief Justice Taney’s opinion in Dred Scott advanced a particularly robust notion of citizenship that Republicans, after ratification of the Thirteenth Amendment, cited when vesting newly freed persons of color with a substantial array of rights.