Note: This is an educational course, not legal advice.
The Fourteenth Amendment was adopted in 1868 above all to protect the newly freed. Racial classifications are the first and clearest target of equal protection, and today they get strict scrutiny: the government must show a compelling interest and a law narrowly tailored to it.
Why it works
Korematsu is a strange landmark. It announced the language of strict scrutiny and then failed to apply it with any rigor. Today it is cited as a warning about deference in a crisis. Strict scrutiny now means what it says: in the Court's words, racial classifications are justified only by the most compelling reasons, and the means must fit them closely. Loving v. Virginia (1967) applied this to Virginia's ban on interracial marriage, rejecting the state's argument that the law was valid because it punished both races equally; Adarand Constructors, Inc. v. Peña (1995) held that federal racial classifications get the same scrutiny.
Key idea
Racial classifications get strict scrutiny: a compelling interest and narrow tailoring, with the burden on the government. Strauder v. West Virginia (1880) struck down all-white juries by law; Korematsu v. United States (1944) upheld the exclusion order while calling race "immediately suspect"; Congress apologized in 1988, and the Supreme Court has since said Korematsu was wrongly decided.
Worked example: Equal application
A state says its law forbidding marriage across racial lines is valid because it applies to all races equally. Under Loving, does that save it?
- The law still classifies by race: whether you may marry depends on the race of both people.
- Loving rejected "equal application" as a defense and applied strict scrutiny.
- The only purpose was to maintain white supremacy, which is not a legitimate interest at all.
Answer: No; equal application does not avoid strict scrutiny.
Worked example: Korematsu's test
Which standard did the Korematsu majority say applied, and what did the Court decide?
- The majority said racial restrictions are "immediately suspect" and get "the most rigid scrutiny."
- It nonetheless upheld the exclusion order, deferring to military judgment.
Answer: The most rigid scrutiny in words; the order was upheld.
Common mistake
Thinking Korematsu applied rational basis. The Court said racial restrictions are "immediately suspect" and get "the most rigid scrutiny," and still upheld the order. Its fault was deference, not the stated test. Check: the case is now cited as a warning, and the Supreme Court has since said it was wrongly decided.