Korematsu v. United States

323 U.S. 214 (1944), argued 11 and 12 Oct. 1944, decided 18 Dec. 1944 by vote of 6 to 3; black for the Court, Frankfurter concurring, Roberts, Murphy, and Jackson in dissent. Fred Korematsu, an American‐born citizen of Japanese ancestry, grew up in the San Francisco Bay area. Rejected by the military for poor health, he obtained a defense industry job. In May 1942, when the Japanese internment began, Korematsu had a good job and a non‐Japanese girlfriend. Rather than submit to incarceration, Korematsu moved to a nearby town, changed his name, had some facial surgery, and claimed to be Mexican‐American. Korematsu ignored military orders prohibiting Japanese‐Americans from either remaining on the California coast or moving from where they lived. As Justice Robert H. Jackson noted in dissent, Korematsu was “convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived” (p. 243). Justice Owen J. Roberts, also dissenting, explained that Korematsu's only legal course of action was to enter a relocation center, which “was a euphemism for prison.” Faced with the dilemma “that he dare not remain in his home, or voluntarily leave the area” and unwilling to be interned, Korematsu “did nothing” (p. 230). He was subsequently arrested, convicted, sentenced to five years in prison, paroled, and immediately interned at Topaz, Utah.

Korematsu is usually cited for Justice Hugo Black's assertion that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and should be given “the most rigid scrutiny” (p. 216). Significantly, this is the only case in which the Supreme Court has applied the “rigid scrutiny” test to a racial restriction and upheld the restrictive law (see Strict Scrutiny).

As in *Hirabayashi v. U.S. (1943), the Court majority never questioned the military's claim that Japanese‐Americans threatened military security on the west coast (see National Security). Justice Black fully accepted “the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal. …” Black argued that this “temporary exclusion of the entire group” was based on a military judgment (p. 219).

Ignoring the fact that nearly all Japanese‐Americans were shipped to an internment camp after entering an assembly center, Black asserted that “Had the petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law … [this] would have resulted in his detention in a relocation center” (p. 219). Since Korematsu was charged with remaining in a restricted area and failing to report to the assembly center, Black would not examine the constitutionality of the military forcing people into relocation camps. Black thought “It will be time enough to decide the serious constitutional issues which the petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him …” (p. 220). In other words, Korematsu could only litigate the constitutionality of the internment after he had actually been incarcerated.

Black indignantly rejected the dissenters' claims that the internment was racist and that the “relocation centers” were “concentration camps.” Black asserted that “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast” and because the military authorities believed the “military urgency” required “that all citizens of Japanese ancestry be segregated from the West Coast temporarily” (p. 223). Black never explained why segregating only people “of Japanese ancestry” was not racist.

In dissent Justices Roberts, Murphy, and Jackson distinguished the exclusion order and the order to report to an assembly center from the curfew approved in Hirabayashi. Roberts noted that “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” (p. 232).

Noting that the internment was justified “mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment” (pp. 236–237), Justice Frank Murphy challenged Black's blind support for military expertise. Finding no evidence tying Japanese‐Americans to sabotage or espionage, Murphy argued the internment was based on “the misinformation, half‐truths and insinuations that for years have been directed against Japanese‐Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation” (p. 239) (see Subversion). Murphy believed the Japanese‐Americans should have been treated “on an individual basis” through “investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry” (p. 241). He noted that the first exclusion order was not issued until “nearly four months elapsed after Pearl Harbor” and that “the last of these ‘subversive’ persons was not actually removed until almost eleven months had elapsed” (p. 241). Concluding such “leisure and deliberation” undermined the claim of military necessity, Murphy dissented “from this legalization of racism” (pp. 241–242).

Justice Jackson accepted that the military had the force to arrest citizens or that in the future this might happen again. He was not even willing to argue that “the courts should have attempted to interfere with the Army in carrying out its task” (p. 248). But he feared that “a judicial construction” that would “sustain this order is a far more subtle blow to liberty than the promulgation of the order itself.” He argued that “once judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.” He believed the precedent then “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim to an urgent need” (pp. 245–246). Jackson urged reversal in order to preserve the integrity of the constitutional system.

See also Race and Racism; World War II.

Bibliography

• Roger Daniels, Concentration Camps, North America (1981).
• Roger Daniels, The Decision to Relocate the Japanese‐Americans (1986).
• Peter Irons, Justice at War (1983)

— Paul Finkelman

• 323 U.S. 214 (1944)
• Vote: 6–3
• For the Court: Black
• Concurring: Frankfurter
• Dissenting: Roberts, Murphy, and Jackson

After Japan's attack on Pearl Harbor, Hawaii, on December 7, 1941, more than 100,000 Americans of Japanese ancestry were removed from their homes on the Pacific Coast of the United States and sent to internment camps in the interior of the country. Most of them spent the duration of the war, until August 1945, confined in one of these camps, even though they were loyal U.S. citizens who had done nothing to harm their homeland, the United States.

One such U.S. citizen was Fred Korematsu, born and raised in Alameda County, California. He had never visited Japan and knew little or nothing about the Japanese way of life.

In June 1941, before the official U.S. declaration of war, Fred Korematsu had tried to enlist in the navy. Although the navy was actively recruiting men in anticipation of the U.S. entry into the war, the service did not allow Korematsu to enlist because of poor health. He then went to work in a shipyard as a welder. When the war began, he lost his job because of his Japanese heritage. On May 9, 1942, General John L. DeWitt ordered all people of Japanese background or ancestry excluded from Military Area No. 1, the Pacific coastal region of the United States. This military order was authorized by an executive order of President Franklin D. Roosevelt (issued on February 19) and an act of Congress (passed on March 21).

Hoping to move to Nevada with his fiance, who was not of Japanese ancestry, Korematsu ignored the evacuation orders when they came. As a U.S. citizen, he felt the orders should not apply to him in any event. The FBI arrested Korematsu, and he was convicted of violating the orders of the commander of Military Area No. 1.

The Issue

The U.S. government justified the internment in two ways. The government claimed that American citizens of Japanese ancestry were more loyal to Japan than to their own country and would spy for Japan. Second, the government claimed that because Japan had attacked the U.S. territory of Hawaii, those Americans of Japanese ancestry might have helped Japan.

Korematsu claimed that military commanders, acting under authority granted by the President and Congress, had denied more than 75,000 U.S. citizens their constitutional rights of due process. The 5th Amendment says, “No person shall be … deprived of life, liberty, or property, without due process of law.” Had the government wrongly taken away the constitutional rights of Japanese Americans?

Opinion of the Court

The Supreme Court upheld the exclusion of Japanese Americans from the Pacific coastal region. The needs of national security in a time of crisis, it said, justified the exclusion orders. The war powers of the President and Congress, specified by the Constitution, provided the legal basis for the majority decision.

Justice Hugo Black admitted that the exclusion orders forced citizens of Japanese ancestry to endure severe hardships. “But hardships are a part of war,” said Black, “and war is an aggregation of hardships.”

Justice Black maintained that the orders had not excluded Korematsu primarily for reasons of race but for reasons of military security. The majority ruling really did not say whether the relocation of Japanese Americans was constitutional. Rather, the Court sidestepped that touchy issue, emphasizing instead the national crisis caused by the war.

Dissent

Three justices—Frank Murphy, Robert Jackson, and Owen Roberts—disagreed with the majority. Justice Roberts thought it a plain “case of convicting a citizen as punishment for not submitting to imprisonment in a concentration camp solely because of his ancestry,” without evidence concerning his loyalty to the United States.

Justice Murphy said that the exclusion orders violated the right of citizens to due process of law. Furthermore, Murphy protested that the decision of the Court's majority amounted to the “legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

Murphy admitted that the argument citing military necessity carried weight, but he insisted that such a claim must “subject itself to the judicial process” to determine “whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending.’”

Finally, Murphy concluded that “individuals must not be left impoverished in their constitutional rights on a plea of military necessity that has neither substance nor support.”

Justice Jackson expressed grave concern about the future uses of the precedent set in this case. He wrote:

A military order, however unconstitutional, is not apt to last longer than the military emergency…. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution… the Court for all time has validated the principle of racial discrimination in criminal procedures and of transplanting American citizens. 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.

Significance

The Korematsu ruling has never been revoked by law or Supreme Court ruling. In 1980, however, Congress reopened investigations into the treatment of Japanese Americans during World War II and created the Commission on Wartime Relocation and Internment of Civilians. After nearly three years of careful examination of the evidence, which included testimony from 750 witnesses, the commission issued a report on February 25, 1983. The report concluded: “A grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed, and detained by the United States during World War II.”

In 1988, on the basis of the 1983 report, Congress officially recognized the “grave injustice” of the relocation and internment experience and offered payments of $20,000 as compensation to each person still living who had been detained in a relocation center.

See also Hirabayashi v. United States

Sources

• Peter Irons, Justice at War (New York: Oxford University Press, 1983).
• Carl Mydans, “Internment Remembered”, Constitution 4, no. 1 (Winter 1992): 43.
• Rudolph S. Rauch, “Internment”, Constitution 4, no. 1 (Winter 1992): 30–42

Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), was a controversial 6-3 decision of the Supreme Court that affirmed the conviction of a Japanese American citizen who violated an exclusion order that barred all persons of Japanese ancestry from designated military areas during World War II.

Fred Toyosaburo Korematsu, an American citizen of Japanese descent, was convicted in federal court for remaining in a designated military area in California contrary to a Civilian Exclusion Order issued by an army general that required persons of Japanese ancestry to report to assembly centers as a prelude to mass removal from the West Coast. He unsuccessfully appealed his conviction to the circuit court of appeals and was granted certiorari by the Supreme Court.

The order that Korematsu was convicted of violating was based upon an executive order, which authorized the military commander to establish military zones and impose restrictions on activities or order exclusion from those areas in order to protect against espionage and sabotage. Federal law made violation of these orders a crime. The entire West Coast and southern Arizona were designated as military zones. The restriction and exclusion orders applied to all enemy aliens and additionally to American citizens of Japanese ancestry. Pursuant to the executive order, another order imposed an 8 p.m. to 6 a.m. curfew on all persons of Japanese ancestry in designated West Coast military areas. This order and a conviction based on it was challenged in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), but the Supreme Court upheld the order as " ‘protection against espionage and against sabotage' " and sustained the conviction. The Court relied upon that case as support for its refusal to rule that Congress and the president exceeded their war powers in excluding persons of Japanese descent from the West Coast in Korematsu. Although it acknowledged that being prohibited from the area where one's home is located is a more severe hardship than a ten-hour curfew, the Court accepted the claims of the government that such drastic measures were necessary to adequately protect the country.

At the start of the majority opinion, the Court stated that any legal restriction that infringes upon the civil rights of a particular race is "immediately suspect." However, it continued, not all restrictions are unconstitutional. Such limitations are valid when dictated by public necessity, but they must withstand rigid judicial scrutiny in order to be upheld. The restrictions imposed upon Japanese Americans were deemed by the Court to be necessary for public security during time of war.

Korematsu argued that the rationale of the Court in Hirabayashi was erroneous and that when the order in question was promulgated there was no longer any danger of a Japanese invasion of the West Coast. The Court rejected these arguments. Both the curfew and exclusion orders were necessary, since disloyal Americans of Japanese origin could not be easily segregated until subsequent investigations took place. Although the hardship of exclusion fell upon many loyal people, the Court viewed it as one of the harsh results of modern warfare.

The Court affirmed Korematsu's conviction, which has been cited by constitutional scholars as the foundation of the strict scrutiny test that is applied to suspect classifications made by the government.

In 1983, upon a challenge by Korematsu who was represented by the American Civil Liberties Union and the Japanese American Citizens League, U.S. district court judge Marilyn Hall Patel vacated the forty-year-old conviction. Based upon newly discovered evidence—previously withheld government documents—the judge found that the new evidence demonstrated "that the Government knowingly withheld information from the Courts when they were considering the critical question of military necessity in this case." The judge added that "justices of [the Supreme] Court and legal scholars have commented that the [Korematsu] decision is an anachronism in upholding overt racial discrimination as ‘compellingly justified,' and that the Korematsu case lies overruled in the court of history."

See: Japanese American evacuation cases.

Camp for Japanese Americans set up by the government in California, 1942. In the foreground is ... Library of Congress, Washington, D.C.
(Click to enlarge)

by H. Black, F. Frankfurter, F. Murphy, and R. H. Jackson, 1944

After the attack on Pearl Harbor, U.S. government officials began to fear a Japanese invasion of the West Coast and, short of that, the possibility of sabotage and subversion by Japanese-Americans living in the area. Though most of the Japanese immigrants were by now American citizens, and though some of them had been born in the United States, the War Department prevailed on President Franklin Roosevelt to relocate the Japanese-Americans in special detention camps, where they stayed throughout the war. In 1943 the Supreme Court upheld the constitutionality of the government's policy, and in Korematsu v. United States, a case decided in 1944, it reaffirmed its earlier decision. Parts of the Court's ruling, a concurring opinion, and two strong dissents are reprinted here.

Mr. Justice Black delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a Federal District Court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U. S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that:

Whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an executive order of the President, by the secretary of war, or by any military commander designated by the secretary of war, contrary to the restrictions applicable to any such area or zone or contrary to the order of the secretary of war or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. ..."

One of the series of orders and proclamations, a curfew order, which, like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remains in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 congressional act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as commander in chief of the Army; and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with congressional authority to the military to say who should and who should not remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions, we are compelled to reject them.

Here, as in the Hirabayashi case, supra, at p. 99,

We cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the warmaking branches of the government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. ...

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. 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. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders - as inevitably it must - determined that they should have the power to do just this.

There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot - by availing ourselves of the calm perspective of hindsight - now say that at that time these actions were unjustified.

Mr. Justice Frankfurter, concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Hirabayashi v. United States, 320 U.S. 81, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the government is "the power to wage war successfully." Hirabayashi v. United States, supra at 93; and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as "an unconstitutional order" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality.

The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The war power of the United States, like its other powers ... is subject to applicable constitutional limitations," Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. To recognize that military orders are "reasonably expedient military precautions" in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not reasonably to be attributed to the hard-headed framers, of whom a majority had had actual participation in war.

If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the executive did. That is their business, not ours.

Mr. Justice Murphy, dissenting.

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage, and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic, or experience could be marshaled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies ... at large today" along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion." They are claimed to be given to "emperor-worshiping ceremonies" and to "dual citizenship." Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, together with facts as to certain persons being educated and residing at length in Japan. It is intimated that many of these individuals deliberately resided "adjacent to strategic points," thus enabling them "to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so."

The need for protective custody is also asserted. The report refers without identity to "numerous incidents of violence" as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the "situation was fraught with danger to the Japanese population itself" and that the general public "was ready to take matters into its own hands." Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area, as well as for unidentified radio transmissions and night signaling.

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage, and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths, and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices - the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. ...

No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group "were unknown and time was of the essence." Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these "subversive" persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved - or at least for the 70,000 American citizens - especially when a large part of this number represented children and elderly men and women. Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Mr. Justice Jackson, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four - the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors convicted of treason but out on parole - only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought different than they but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that "no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice and belongs to a race from which there is no way to resign. If Congress in peacetime legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the "law" which this prisoner is convicted of disregarding is not found in an act of Congress but in a military order. Neither the act of Congress nor the executive order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. ...

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. 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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. ...

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

Korematsu v. United States
Supreme Court of the United States
Argued October 11–12, 1944 Decided December 18, 1944
Full case name	Fred Korematsu v. United States
Citations	323 U.S. 214 (more) 65 S. Ct. 193; 89 L. Ed. 194; 1944 U.S. LEXIS 1341
Prior history	Certiorari to the Circuit Court of Appeals for the Ninth Circuit
Holding
The exclusion order leading to Japanese American Internment was constitutional.
Court membership
Chief Justice Harlan F. Stone Associate Justices Owen J. Roberts · Hugo Black Stanley F. Reed · Felix Frankfurter William O. Douglas · Frank Murphy Robert H. Jackson · Wiley B. Rutledge
Case opinions
Majority	Black, joined by Stone, Reed, Douglas, Rutledge, Frankfurter
Concurrence	Frankfurter
Dissent	Roberts, Murphy, Jackson
Laws applied
Executive Order 9066; U.S. Const. amend. V

Korematsu v. United States, 323 U.S. 214 (1944)^[1], was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066.

In a 6-3 decision, the Court sided with the government,^[2] ruling that the exclusion order was constitutional. The opinion, written by Supreme Court justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu's individual rights, and the rights of Americans of Japanese descent. (The Court limited its decision to the validity of the exclusion orders, adding, "The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.")

The decision in Korematsu v.United States has been very controversial.^[2] Indeed, Korematsu's conviction for evading internment was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of coram nobis. In a ruling by Judge Marilyn Hall Patel, the United States District Court for the Northern District of California granted the writ (that is, it voided Korematsu's original conviction) because in Korematsu's original case, the government had knowingly submitted false information to the Supreme Court that had a material impact on the Supreme Court's decision.

The Korematsu decision has not been explicitly overturned. Indeed, the Korematsu ruling is significant both for being the first instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a tiny handful of cases in which the Court held that the government met that standard.

Contents 1 Introduction 2 Decision 3 Murphy's dissent 4 Jackson's dissent 5 Subsequent history 6 See also 7 References 8 Further reading 9 External links

Introduction

Japanese American Internment Center

On May 19, 1942, during World War II, western Japanese Americans were compelled to move into relocation camps by Civilian Restrictive Order No. 1, 8 Fed. Reg. 982. This order, and other similar orders, were based upon Executive Order 9066 (February 19, 1942), which was specifically whose loyalty was acknowledged to its procedures.

Fred Korematsu was a U.S.-born Japanese American man who decided to stay in San Leandro, California and knowingly violate Civilian Exclusion Order No. 34 of the U.S. Army. Fred Korematsu argued that the Executive Order 9066 was unconstitutional and that it violated the Fifth Amendment to the United States Constitution. He was arrested and convicted. No question was raised as to Korematsu's loyalty to the United States. The Circuit Court of Appeals affirmed the conviction, and the Supreme Court granted certiorari.

Decision

The decision of the case, written by Justice Hugo Black, found the case largely indistinguishable from the previous year's Hirabayashi v. United States decision, and rested largely on the same principle: deference to Congress and the military authorities, particularly in light of the uncertainty following Pearl Harbor. Justice Black further denied that the case had anything to do with racial prejudice:

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.

At that time, eight of the nine Supreme Court Justices had been appointed by Democrat Franklin D. Roosevelt. The only Republican appointed Justice on the Court was Owen Roberts who dissented against Japanese American internment camps..

Murphy's dissent

Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism," and comparing the rationale for the Japanese exclusion to that supporting "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy"—the racial policy of Nazi Germany. He also compared the treatment of Japanese Americans, on the one hand, with persons of German and Italian ancestry, on the other, as evidence that race, rather than the emergency alone, led to the exclusion order which Korematsu was convicted of violating. In his passionate closing paragraph, he wrote:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

Justice Murphy's two uses of the term "racism" in this opinion, along with two additional uses in his concurrence in Steele v. Louisville & Nashville R. Co., decided the same day, are among the first appearances of the word "racism" in a United States Supreme Court opinion. The first appearance was in Justice Murphy's concurrence in Ex parte Endo, 323 U.S. 283 (1944)^[3]. The term was also used in other cases, such as Duncan v. Kahanamoku, 327 U.S. 304 (1946) and Oyama v. California, 332 U.S. 633 (1948). It then disappeared from the court's lexicon for 18 years — it reappeared in Brown v. Louisiana, 383 U.S. 131 (1966). It did not appear in Loving v. Virginia, 388 U.S. 1 (1967)^[4], even though that case did talk about racial discrimination and interracial marriages.

Jackson's dissent

By contrast, Justice Robert Jackson's dissent argued that "defense measures will not, and often should not, be held within the limits that bind civil authority in peace," and that it would perhaps be unreasonable to hold the military, who issued the exclusion order, to the same standards of constitutionality that apply to the rest of the government. "In the very nature of things," he wrote, "military decisions are not susceptible of intelligent judicial appraisal." He acknowledged the Court's powerlessness in that regard, writing that "courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint."

He nonetheless dissented, writing that, even if the courts should not be put in the position of second-guessing or interfering with the orders of military commanders, that does not mean that they should have to ratify or enforce those orders if they are unconstitutional. Indeed, he warns that the precedent of Korematsu might last well beyond the war and the internment:

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. 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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Subsequent history

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Fred Korematsu

Former Supreme Court Justice Tom C. Clark, who represented the U.S. Department of Justice in the "relocation," writes in the Epilogue to the book Executive Order 9066: The Internment of 110,000 Japanese Americans (written by Maisie and Richard Conrat):

The truth is, the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066…

As earlier stated, Korematsu challenged the earlier decision through a writ of coram nobis in the early 1980s. In 1984, in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), the U.S. District Court for the Northern District of California granted his writ and overturned Korematsu's original conviction. In that decision, Judge Marilyn Hall Patel held that "there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court" — information that was critical to the Supreme Court's original decision in 1944. In particular, the government suppressed information that their stated military justification for the exclusion and internment of Japanese Americans was, in the words of Department of Justice officials writing during the war, based on "willful historical inaccuracies and intentional falsehoods." However, the District Court emphasized that in issuing this decision, it had the power to correct only errors of fact, not errors of law. The essential holding of the 1944 Korematsu decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched. Judge Patel concluded:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

The 2001 documentary Of Civil Wrongs and Rights tells the story of the 1983 court case and of Korematsu's life before and after that decision. Peter Irons' book Justice at War: The Story of the Japanese American Internment Cases describes the government deceptions in the original Korematsu case.

The U.S. Government officially apologized for the internment in the 1980s and paid reparations totaling $1.2 billion, as well as an additional $400 million in benefits signed into law by George H. W. Bush in 1992. In January 1998, President Bill Clinton named Fred Korematsu a recipient of the Presidential Medal of Freedom.

In 2004, Korematsu filed an amicus curiae brief in the case of Rasul v. Bush, in which Guantanamo detainees challenged their detention as enemy combatants by the Bush administration. In the brief, Korematsu argued, "The extreme nature of the government’s position in these cases is reminiscent of its positions in past episodes, in which the United States too quickly sacrificed civil liberties in the rush to accommodate overbroad claims of military necessity."

In March 2005, Korematsu died at the age of 86. It has been revealed that the United States government suppressed the fact that its own intelligence had established that the interned Japanese Americans were not a security risk, even as the matter was litigated before the Supreme Court.^[5]

See also

• List of United States Supreme Court cases, volume 323
• United States Executive Order 9066
• Japanese American internment
• Wayne M. Collins — Plaintiff's attorney in Korematsu v. United States
• Reference re Persons of Japanese Race [1946] S.C.R. 248 — similar Canadian decision
• Liversidge v. Anderson, UK case of an internee under Defence Regulation 18B
• Rasul v. Bush — 2004 Supreme Court case concerning the Guantanamo Bay prisoners

References

This article needs additional citations for verification. Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (April 2008)

1. ^ 323 U.S. 214 (Full text of the opinion courtesy of Findlaw.com.)
2. ^ ^{a b} Richey, Warren (2007-12-05). "Key Guantánamo cases hit Supreme Court". The Christian Science Monitor. http://www.csmonitor.com/2007/1205/p01s02-usju.html?page=2. 
3. ^ jerrykang.net - jerrykang.net
4. ^ Lopez, Ian F. Haney (2007). "‘A nation of minorities’: race, ethnicity, and reactionary colorblindness" (PDF). Stanford Law Review 59 (4): 985–1064. http://lawreview.stanford.edu/content/vol59/issue4/lopez.pdf. 
5. ^ Goldstein, Richard (2005-04-01). "Fred Korematsu, 86, Dies; Lost Key Suit on Internment". New York Times. http://www.nytimes.com/2005/04/01/national/01korematsu.html. 

Further reading

• Biskupic, Joan (2004-04-18). "Prisoners test legal limits of war on terror using Korematsu precedent". USA Today. http://www.usatoday.com/news/washington/2004-04-18-scotus-terror_x.htm. 
• Levy, Robert A.; Mellor, William H. (2008). "Civil Liberties Versus National Security". The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 127–142. ISBN 9781595230508. 
• Rountree, Clarke (2001). "Instantiating the law and its dissents in Korematsu v. United States: A dramatistic analysis of judicial discourse". The Quarterly Journal of Speech 87 (1): 1–24. ISSN 0033-5630. 
• Serrano, Susan Kiyomi; Minami, Dale (2003). "Korematsu v. United States: A ‘Constant Caution’ in a Time of Crisis". Asian Law Journal 10: 37. ISSN 1078-439X. 
• Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 113–126. ISBN 9780807000366. 

External links

• Works related to Korematsu v. United States at Wikisource
• Text of Korematsu v. United States, 323 U.S. 214 (1944) is available from:  · Enfacto · Findlaw

• Of Civil Wrongs and Rights, official site (2001 P.O.V. documentary on the 1983 coram nobis case)

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