KOREMATSU v U. S. 323 U. S.
214 (1944) Perhaps, according to Bernard Schwartz, the greatest failure of American law during World War II may be illustrated by the case of Fred Toyosaburo Korematsu. As graphically described in 1944 by a member of the bench, his case is one that is unique in our system: 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. Korematsu had been charged with failure to report for evacuation and detention. Had Korematsu been of Italian, German or English ancestry, his act would not have been a crime.
His presence in California was made a crime solely because his parents were of Japanese birth. The difference between innocence and crime, so far as he was concerned, resulted not from anything he did, said, or even thought, but only from his particular racial stock. For Korematsu was a victim of what a Harper’s article was to term “America’s Greatest Wartime Mistake,” namely, the evacuation of those of Japanese ancestry from the West Coast shortly after the Pearl Harbor attack. 20 In a 6-3 majority decision the Supreme Court, on December 18, 1944, rendered its opinion which affirmed the right of the military to move people about on the basis of race in time of war. The Court decided that one group of citizens may be singled out and expelled from their homes, and imprisoned for several years without trial based solely on ancestry. The Supreme Court refused to question military judgment or the validity of military orders applied to civilians without a declaration of martial law.
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Hardships are part of war and war is a collection of hardships. All citizens whether they be in or out of uniform feel the impact of war. Citizenship has its responsibilities as well as its privileges, and in time of war, the burden is always heavier. It is said that Korematsu has been imprisoned in a concentration camp solely because of his ancestry, without any evidence to show his loyalty or disloyalty towards the United States… First of all, we do not think it is justifiable to call them concentration camps, with all the ugly pictures that term brings to mind.
Secondly, regardless of the true nature of the assembly and relocation centers, we are dealing specifically with nothing but the exclusion order. To bring in the issue of racial prejudice, without reference to the real military dangers which existed, 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…
The military urgency of the situation required that all citizens of Japanese ancestry be segregated from the West Coast temporarily. Congress put their confidence in our military leaders and decided that they should have the power to carry out the necessary measures. There was evidence of disloyalty on the part of some so the military authorities felt that the need for action was great. The fact that we can look back and see things more calmly does not allow us to say that at the time these actions were unjustified.
21 In dissenting Justice Owen Roberts felt the facts presented exhibited a clear violation of Constitutional rights. It is he stated “not a case of keeping people off the streets at night, nor a case of temporary exclusion from an area for safety reasons… It is the case of convicting a citizen as a punishment to not going into imprisonment in a concentration camp. In addition, if a citizen were forced to obey two laws and obedience to one of them would violate the other, to punish him for violation of either law would be unfair.
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It would be to deny him due process of law. “Distinctions between citizens solely because of their ancestry are hateful to a free people whose institutions are founded upon equality. For that reason, discrimination based on race alone has often been considered a denial of equal protection.” Justice Frank Murphy, in his dissenting opinion, called the decision “a legalization of racism” while Justice Robert Jackson, also dissenting, deplored the validation of “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 urgent need.” To Justice Murphy “Racial discrimination in any form and in any degree has no justifiable part whatsoever in our democratic way of life. It is unattractive in any setting but is utterly revolting among 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.” So wrote Judge Murphy, who in the strongest dissent in the Korematsu case, stated that the exclusion order applicable to “all persons of Japanese ancestry” seemed to him “an obvious racial discrimination” and thus a denial of equal protection, Murphy’s statement in essence that the equal protection guarantee is part of the due process assurance of the Fifth Amendment was reaffirmed in 1954 when in a companion case to Brown v Board of Education, Bolling v Sharpe. Chief Justice Earl Warren held public schools in the District of Columbia violative of the equal protection clause because of racial segregation. The same Earl Warren who used the anti Japanese feelings of West Coasters to help his political campaign for Governor of California during the war years. EX PARTE ENDO 323 U. S.
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283 (1944) Although Mitsuye Endo cooperated with the military order she was detained against her will without charges. In July 1942 she sought a writ of habeas corpus which is supposed to be adjudged promptly. However her case was not heard for a full year by the Federal District Court which denied her petition. Her appeal to the Court of Appeals was not forwarded to the Supreme Court for another year. On December 18, 1944, one day after the exclusion and detention orders had been rescinded, the Supreme Court granted Endo an unconditional release from confinement. But in doing so the Court stated that the original expulsion from the West Coast and the detention for three years without charges or trial were legitimate exercises of presidential and military power during an emergency.
The Court bypassed constitutional issues and only ruled that Executive Order 9066 did not authorize the indefinite detention of citizens who the government conceded were loyal, nor did it authorize the imposition of parole conditions on citizens once removed from the West Coast. Although joining the majority decision Justice Frank Murphy was of the opinion “that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in Fred Toyosaburo Korematsu v United States, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people.”.
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