Everything you say can and will be used against you.

Wednesday, June 19, 2019

Conlawprof, Dachau, and Auschwitz: The New “Learning”

Professor AAA wrote:
AOC is being condemned by the GOP for demeaning the Holocaust by referring to American “concentration camps” along the border. I note for the record that [Associate] Justice Roberts in his Korematsu dissent referred to the detention camps as “concentration camps.” Was he wrong to do so? Or what about the “original” concentration camps, those set up by the ever-civil British to confine their opponents in the Boer War?

Dachau was a “concentration camp.” Auschwitz was a “death camp.” Can the GOP really not tell the difference or, more to the point, is this confusion simply another desperate play for those regarded as “Jewish voters” who are the object of Jared’s affections?

What does this have to do with constitutional law? Not much, save for deciding, if one teaches Korematsu, exactly how to describe the camps and to explain why a Justice of the US Supreme Court believed that it was appropriate to refer to them as “concentration camps.” And to come to terms with the fact that the U.S. Constitution, as construed by the present majority, may in fact give the President basically unrestricted power to make life a living hell for the approximately eleven million undocumented aliens viewed by Stephen Miller, an unconfirmed presidential “advisor” who is far more powerful than perhaps any given member of the confirmed Cabinet on such matters, as little better than vermin.

Tillman Responds
I do not know what Associate Justice Roberts meant in 1944 when he penned his dissent in Korematsu. Certainly, some in Europe and among the Allies understood in 1944 that the Nazi regime was killing civilians using industrial means on a mass scale in its camps and elsewhere. I do not know if Roberts clearly understood all that when he drafted his dissent, or even if he suspected it, and I have real doubts that the largest part of his American audience in 1944 understood his words the way we understand these words today. Given what I believe to be linguistic slippage, I see no reason to criticize Roberts for using “concentration camp” to apply to US internment camps for US citizens of Japanese descent, enemy civilian nationals (some of Japanese descent), and others.

What the US civilian population and the wider world came to understand as Allied armies captured these camps in occupied Europe and elsewhere is not coextensive with what is known today. Indeed, the scope of the mass murder was not understood until some years after WWII ended. How different (if at all) the Holocaust was from prior mass death regimes is a matter of opinion about which many have well informed, but divergent views. I would be loath to tell (even if I believed it true) an Armenian that the Holocaust against the Jews was worse (in some meaningful way) than the Ottoman genocide against the Armenian civilian population.

My comments above go to how Roberts used “concentration camp” language circa 1944. How such language has been used in most of my lifetime in the US is another matter. I can only wonder what the reaction on CONLAWPROF and in the press would be if Trump or his supporters stated in public: “Dachau and Auschwitz—world of difference—concentration versus death camp.” No one would inquire if there was some legitimate, historically rooted technical difference—the immediate reaction would be that Trump was making an appeal to white nationalist sentiment and trying to obliterate the memory of the Holocaust. I suspect that if, today, some public figure voiced this claim—“Dachau and Auschwitz—world of difference—concentration versus death camp”—in Germany or in Poland, he would be arrested for Holocaust denial.

Professor AAA wrote: “Dachau was a ‘concentration camp.’ Auschwitz was a ‘death camp.’” The best I can say about Professor AAA’s comment is that it appears to me that it is not well crafted. Auschwitz is properly described as a death camp and a concentration camp. I will not bother with citations: they are easy to find. Dachau was a concentration camp. Whether it is properly described as a death camp is a matter of definition: What is a death camp? 

If people are going to make charged comparisons between Dachau (and what was intended to happen there by its creators) and what is going on at America’s borders (and what was or is intended to happen there by its creators), then the better course would be to proceed carefully and to clarify in what way (if any) those two events are meaningfully similar.

People are crossing America’s southern frontier—they are coming from Mexico, south of Mexico, and (it is reported) from other continents. They are doing so knowing full well that there is a good chance the US authorities will detain them in border facilities of the sort that are now being compared to Dachau. They are coming in large numbers—some (perhaps many) in good health with money and education. There is an element (for some of them) that can be fairly described as voluntary action seeking a better life in the US. I have never heard that such conduct was a proper characterization of those who inhabited Dachau or Auschwitz. If that is so, then the comparison is misplaced and odious.


Seth Barrett Tillman, Conlawprof, Dachau, and Auschwitz: The New Learning, New Reform Club (June 19, 2019, 3:55 AM), <https://reformclub.blogspot.com/2019/06/conlawprof-dachau-and-auschwitz-new.html>. 

See generally Korematsu v United States 323 US 214 (1944) (Black, J), 
<https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZO>; id. at 242 (Jackson, J, dissenting), 


MKBAR said...

I come from a family of survivors. In my experience, all my relatives who suffered during the Holocaust, even those who survived so-called death camps, characterized all the camps as concentration camps, regardless of how the Nazis viewed them. I could not give a damn that some ignorant moron, sitting in the safety of 21st Century America, makes an effort to draw a distinction. It is a distinction without a difference inasmuch as the Nazi plan was to eradicate Jews.

TMLutas said...

I believe the core difference is how one could leave such camps. In the case of the Nazi regime, you left feet first, were shipped to another facility of similar or worse quality, or escaped in a harrowing process whose outcome often ended in death.

Anyone in the American facilities can leave soon after saying that they agree to leave the country and go home.

The ability to leave by signing a paper giving up the legal right to stay within Nazi-controlled territory would have been greeted with joy by anyone residing in Dachau or Auschwitz.

Anonymous said...

Here is the portion of Roberts's dissent with the phrase:

"We cannot shut our eyes to the fact that, had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation, instead of addressing ourselves to the actualities of the case?"

Black responded with this counterdissent in the majority opinion:

" Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order."

Shorter Black, a former KKK member: "Roberts is wrong because I say he's wrong."

Black spent the rest of his life trying to erase this bigotry. History continues to catch him out.
Gregory Koster

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