Id. at 216, 221, 223-24. In his dissenting opinion, Justice Jackson commented, once the court sanctions the order, the “principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Id. at 246, 65 S.Ct. 193. “Korematsu is one of the Supreme Court’s most reviled decisions——a relic of the nation’s dark past widely regarded as unlikely to be repeated” and rightfully so. Stephen Dycus, Requiem for Korematsu, 10 J. Nat’l Sec. L. & Pol’y 237 (2019). The type of irrational generalizing fear underlying Korematsu is capable of pressuring jurists to misuse the constitution in other contexts: Judges “are heavily influenced by the perceived practical consequences of their decisions rather than being straight-jacketed by legal logic. . . . In a democracy,” [Eric Yamamoto] writes, “judicial independence serves as the crucial check on the political branches’ majoritarian impulses.” Careful judicial oversight is especially important in times of stress, when Americans may find themselves “at the mercy of wicked rulers, or the clamor of an excited people.” Id. at 246 (citing Eric K. Yamamoto, In the Shadow of Korematsu: Democratic Liberties and National Security (Oxford Univ. Press 2018) (footnotes omitted)). Korematsu was spawned from Hirabayashi v. United States, 320 U.S.81 (1943) which approved a night time curfew for people of Japanese origin passed by Congress in a time of declared war.
Other courts have justified curfews citing Constitutional challenges to zoning ordinances. In Bykofsky v. Borough of Middleton, 401 F.Supp . 1242 (MDPA 1975), the Court held exercising its police power, the state must further the “public health, safety, morals and general welfare” if its actions are not to be considered an arbitrary deprivation of liberty. See Euclid v. Amber Realty, 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L. Ed. 303; Village of Belle Terre v. Boraas, 1974, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797. The U.S. Supreme Court had an opportunity to review the constitutionality of the curfew in Bykofsky v. Middleton 429 U.S. 964,97 S.Ct. 394, 50 L.Ed.2d 333(1976), but the Court denied certiorari. Justice Thurgood Marshall dissented with Jutice Brennan and wrote, “The freedom to leave one’s house and move about at will is “of the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and hence is protected against state intrusions by the Due Process Clause of the Fourteenth Amendment. See, e. g., Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Coates v. City of Cincinnati,402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). To justify a law that significantly intrudes on this freedom, therefore, a State must demonstrate that the law is “narrowly drawn” to further a “compelling state interest.” Roe v. Wade, 410 U.S. 113, 155-156, 93 S.Ct. 705, 32 L.Ed.2d 147 (1973). For this reason, I have little doubt but that, absent a genuine emergency, see e. g., United States v. Chalk, 441 F.2d 1277 (C.A.4 1971), a curfew aimed at all citizens could not survive constitutional scrutiny. This is true even though such a general curfew, like the instant ordinance, would protect those subject to it from injury and prevent them from causing “nocturnal mischief.” The fly in the ointment is what is teh nature and extent of a “genuine emergency.”
Is irrational fear enough?
In United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971), the Court cited “Control of civil disorders that may threaten the very existence of the State is certainly within the police power of government” citing as authority Stotland v. Pennsylvania, 398 U.S. 916, 920, 90 S.Ct. 1552, 1555, 26 L.Ed.2d 83 (1970) where Justice Douglas simply dissented from the dismissal of an appeal for lack of a substantial federal question by without explanation.
In Nunez v. City of San Diego, 114 F.3d 935 (1997), the 9th U.S. Circuit Court of Appeals ruled that to survive judicial scrutiny, a curfew law generally must contain an exception for parents to rear children without undue interference and for engagement in First Amendment–protected activities, such as political events, death penalty protests, or religious services.
In Hodgkins v. Peterson 355 F.3d 1048 (2004), the 7th U.S. Circuit Court of Appeals invalidated Indiana’s curfew law although the law provided minors an affirmative defense if they were participating in activity protected by the First Amendment. The 7th Circuit reasoned that law did not provide for alternative channels of First Amendment express and the affirmative defense for First Amendment activities did not save the ordinance from being unconstitutional as it “does not significantly reduce the chance that a minor might be arrested for exercising his First Amendment rights.”
In Hutchins v. District of Columbia 188 F.3d 531 (DC Cir. 1999), the Court of Appeals upheld a curfew from a challenge that juveniles had a no right to freedom of movement, parents have no right to parent without restriction and that the juvenile curfew’s First Amendment exception was too vague and would require a Constitutional scholar to interpret. The Court of Appeals concluded that the ordinance’s First Amendment defense provided simply that the curfew would not be applied to protected free expression and was “no more vague than the First Amendment itself.”
The problem is that we are a nation governed by the rule of law primarily the Constitution and not the whim of man. But in times of panic often, our Constitution gets construed into meaninglessness at the alter of what Isaac Asimov termed psychohistory.
On a related note, the SCOTUS punted again on review of curfew like laws when it denied to review the injunction sought by California churches of the California COVID-19 pandemic order in South Bay United Pentecosal Church v. Gavin Newson, No. 19A1044590 U.S.___,(2020). Although more of an opinion on religious discrimination, it shows the framework for analysis for curfew or shelter-in-place emergency orders.