June 2021, Paper: "I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.”1 My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated.2 Whatever the laws are, they don’t make themselves.3 Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication. So, for example, we know that legislators and high-level administrators can adopt policies that say nothing whatsoever about race—regulations about stopping cars to enforce safety regulations, for example—that police officers on the ground can apply discriminatorily.4 Korematsu and Trump v. Hawaii show us a government of laws that is also a government of men and women can be infected at each stage, in quite complex ways, by the racism of those men and women even when they also acknowledge that the laws to which they are subject (and that they are making and interpreting) condemn racism. Legal actors simultaneously deny and affirm that racism infects the law: deny it when they focus on the “government of laws” part of the saying, affirm it when they focus on the “government of men and women” part."
Non-HKS Author Website - Mark Tushnet