Korematsu v. United States
|Korematsu v. United States|
|The exclusionary order which caused the internment of Japanese Americans during World War II was permissible. Executive Order 9066 was constitutional.|
|Majority||Black, joined by Stone, Reed, Frankfurter, Douglas, Rutledge|
|Executive Order 9066; U.S. Const. amend. V|
|Trump v. Hawaii (2018; obiter dictum)|
Korematsu v. United States, 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been widely criticized, with some scholars describing it as "an odious and discredited artifact of popular bigotry", and as "a stain on American jurisprudence". The case is often cited as one of the worst Supreme Court decisions of all time. Chief Justice John Roberts repudiated the Korematsu decision in his majority opinion in the 2018 case of Trump v. Hawaii.
In the aftermath of
In a majority opinion joined by five other justices, Associate Justice
The Korematsu opinion was the first instance in which the Supreme Court applied the
In the wake of the Japanese
In the meantime, Secretary of War
Black's majority opinion
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.
In his diaries, Justice Felix Frankfurter reported that Justice Black told the justices as reason for deferring to the executive branch: "Somebody must run this war. It is either Roosevelt or us. And we cannot."
While Korematsu is regularly described as upholding the internment of Japanese Americans, the majority opinion expressly declined to reach the issue of internment on the ground that Korematsu's conviction did not present that issue, which it said raised different questions. The Court cross-referenced its decision the same day in Ex Parte Endo, 323 U.S. 283 (1944), in which the Court ruled that a loyal Japanese American must be released from detention.
Justice Frankfurter's concurrence reads in its entirety:
- 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 [p. 225] 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 subtleties 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.
Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism", and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy." Murphy argued that collective punishment for Japanese Americans was an unconstitutional response to any disloyalty that might have been found in a minority of their cohort. He also compared the treatment of Japanese Americans with the treatment of Americans of German and Italian ancestry, as evidence that race, and not emergency alone, led to the exclusion order which Korematsu was convicted of violating:
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 Railway 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). 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), even though that case did talk about racial discrimination and interracial marriages.
Justice Murphy's dissent is considered the strongest of the three dissenting opinions and, since the 1980s, has been cited as part of modern jurisprudence's categorical rejection of the majority opinion.
Justice Roberts's dissent also acknowledges the racism inherent in the case although he does not use the word. He recognized that the defendant was being punished based solely upon his ancestry:
This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, 320 U.S. 81, [p. 226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.
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. Jackson writes, "I do not think [the civil courts] may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner." 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.
Jackson further warned:
Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.
Jackson acknowledged the racial issues at hand, writing:
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. [...] [H]is 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. 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 peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
Congressional Commission on Wartime Relocation and Internment of Civilians
In 1980, Congress established a commission to evaluate the events leading up to the issuance of Executive Order 9066 and accompanying military directives and their impact on citizens and resident aliens, charging the commission with recommending remedies. Discussing the Korematsu decision in their 1982 report entitled Personal Justice Denied, this Congressional Commission on Wartime Relocation and Internment of Civilians (CCWRIC) concluded that "each part of the decision, questions of both factual review and legal principles, has been discredited or abandoned," and that, "Today the decision in Korematsu lies overruled in the court of history."
Korematsu challenged his conviction in 1983 by filing before the
2011 DOJ admission of error
On May 20, 2011, Acting Solicitor General Neal Katyal released an unusual statement denouncing one of his predecessors, Solicitor General Charles H. Fahy. He faulted Fahy for having "suppressed critical evidence" in the Hirabayashi and Korematsu cases before the Supreme Court during World War II, specifically the Ringle Report's conclusion that there was no indication Japanese Americans were acting as spies or sending signals to enemy submarines. The rulings in the 1980s that overturned the convictions of Korematsu and Hirabayashi concluded that failure to disclose the Ringle Report, along with an initial report by General De Witt that demonstrated racist motivations behind the military orders, represented a fatal flaw in the prosecution of their cases before the Supreme Court. Katyal noted that Justice Department attorneys had actually alerted Fahy that failing to disclose the Ringle Report's existence in the briefs or argument in the Supreme Court "might approximate the suppression of evidence". Thus, Katyal concluded that Fahy "did not inform the Court that a key set of allegations used to justify the internment" had been doubted, if not fully discredited, within the government's own agencies.
Katyal therefore announced his office's filing of a formal "admission of error". He reaffirmed the extraordinary duty of the Solicitor General to address the Court with "absolute candor," due to the "special credence" the Court explicitly grants to his court submissions.
21st century reactions
Eleven lawyers who had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in
On February 3, 2014, Justice
Donald Trump's Presidential election led Kansas Secretary of State Kris Kobach to advocate for Trump to implement immigration controls like the National Security Entry-Exit Registration System. One Trump supporter, Carl Higbie, said that Jimmy Carter's 1980 restriction on Iranian immigration, as well as the Korematsu decision, gives legal precedent for a registry of immigrants. Critics of Higbie argued that Korematsu should not be referenced as precedent. Constitutional lawyer Bruce Fein argued that the Civil Liberties Act of 1988 granting reparations to the Japanese Americans who were interned amounts to Korematsu having been overturned by history—outside of a potential formal Supreme Court overrule. Another critic of Higbie described Korematsu as a "stain on American jurisprudence".
Rejection in Trump v. Hawaii
The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.'— Trump v. Hawaii, slip op. at 38 (quoting 323 U.S., at 248 (Jackson, J., dissenting)): 38
Roberts also added: "The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.": 38  Congress regards Korematsu as having been overruled by Trump v. Hawaii.
Rejection in dissent of United States v. Zubaydah
Justice Gorsuch, writing in his dissent of United States v. Zubaydah, reiterated the fact that Korematsu was negligent. Gorsuch criticised the court for allowing "state interest" as a justification for "suppressing judicial proceedings in the name of national security." He used Korematsu as a justification against doing such.
Justice Gorsuch dissented stating:
In Korematsu v. United States, the President persuaded this Court to permit the forced internment of Japanese American citizens during World War II. The President did so in part by relying on a military report that insisted immediate action was imperative to national security. The report, however, contained information executive officials knew to be false at the time....And still more years passed before this Court formally repudiated its decision. (Internal citations omitted)— Justice Neil Gorsuch, United States v. Zubaydah 595 U. S. ___ (Gorsuch, J., dissenting)
- Commission on Wartime Relocation and Internment of Civilians
- Ex parte Endo
- Hirabayashi v. United States
- Fred Korematsu Day
- Fred T. Korematsu Institute for Civil Rights and Education
- Japanese American redress and court cases
- Mochizuki v. United States
- Trail of tears
- Yasui v. United States
- ^ JSTOR 1373107.
- ^ Huffington Post. Retrieved November 27, 2016.
- ^ a b Takei, Carl (November 27, 2016). "The incarceration of Japanese Americans in World War II does not provide a legal cover for a Muslim registry". Los Angeles Times. Retrieved November 27, 2016.
- OCLC 226213461.
- OCLC 435911877.
- JSTOR 27846961.
- ^ "Trump v. Hawaii and Chief Justice Roberts's "Korematsu Overruled" Parlor Trick | ACS". American Constitution Society. June 29, 2018. Retrieved July 14, 2019.
- ^ culture, New to The New Criterion? Subscribe to the premier journal of; Price, Now at Its Lowest. "Facially neutral, racially biased by Wen Fa & John Yoo". The New Criterion. Retrieved September 26, 2022.
- ^ Qtd. in "A Brief History of Japanese American Relocation During World War II". National Park Service.
- JSTOR 3478076.
- ISBN 9780882959092.
- 9th Cir.1943).
- ^ a b c d e f g h i Korematsu v. United States, 323 U.S. 214 (Supreme Court of the United States 1944).
- ^ Stephen Breyer: America’s Courts Can’t Ignore the World. In: The Atlantic, September 2018
- ^ Ex parte Mitsuye Endo, 323 U.S. 283(Supreme Court of the United States 1944).
- ^ Lopez, Ian F. Haney (2007). "'A nation of minorities': race, ethnicity, and reactionary colorblindness" (PDF). Stanford Law Review. 59 (4): 985–1064.[permanent dead link]
- ^ Anita S. Krishnakumar, On the Evolution of the Canonical DISSENT Rutgers Law Review 52, no. 3 (Spring 2000): 781-826
- JSTOR 27592094.
- ^ Personal Justice Denied. Congressional Commission on Wartime Relocation and Internment of Civilians. December 1982. pp. 1, 238–239.
- ^ a b Savage, Charlie (June 26, 2018). "Korematsu, Notorious Supreme Court Ruling on Japanese Internment, Is Finally Tossed Out". The New York Times. Retrieved June 26, 2018.
- ^ a b Savage, David G. (May 24, 2011). "U.S. official cites misconduct in Japanese American internment cases". Los Angeles Times.
- ISBN 9780674006393.
- ^ "Court Reverses Korematsu Conviction - Korematsu v. U.S., 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. Apr 19, 1984)". LSU Law Center. Retrieved June 28, 2018.
- ^ Tracy, Russo (May 20, 2011). "Confession of Error: The Solicitor General's Mistakes During the Japanese-American Internment Cases". Retrieved April 7, 2013.
- ^ Minami, Dale; Bannai, Lorraine; Tomaki, Donald; Irons, Peter; Yamamoto, Eric; Miyasato, Leigh Ann; Nagae, Pegy; Kawakami, Rod; Kai, Karen; Bannai, Kathryn A.; Rusky, Robert (January 13, 2014). "Re: Hedges v. Obama Supreme Court of the United States Docket No. 17-758" (PDF). Retrieved April 29, 2014 – via SCOUSblog.
- ^ Denniston, Lyle (January 16, 2014). "A plea to cast aside Korematsu". SCOTUSblog. Retrieved April 29, 2014.
- ^ Weiss, Debra Cassens (February 4, 2014). "Scalia: Korematsu was wrong, but 'you are kidding yourself' if you think it won't happen again". American Bar Association. Retrieved February 7, 2014.
- ^ Egelko, Bob (October 30, 2015). "Scalia's favorite opinion? You might be surprised". Politics Blog. San Francisco Chronicle. Retrieved November 25, 2015.
- ^ Caldwell, Alicia A. (November 21, 2016). "Trump supporter pitches hard-line immigration plan for Homeland Security". PBS NewsHour. PBS. Retrieved November 27, 2016.
- ^ Raymond, Adam K. (November 21, 2016). "Trump Cabinet Hopeful Kris Kobach Forgets Cover Sheet, Exposes DHS Plan for All to See". New York. Retrieved November 27, 2016.
- ^ Kopan, Tal; Kurtz, Jason. "Trump backer further explains internment comments". CNN. Retrieved June 26, 2018.
- ^ Abadi, Mark (November 17, 2016). "Megyn Kelly shut down a Trump supporter who said Japanese internment camps were precedent for a Muslim registry". Business Insider (Australia). Retrieved November 27, 2016.
- ^ Hawkins, Derek (November 17, 2016). "Japanese American internment is 'precedent' for national Muslim registry, prominent Trump backer says". The Washington Post. Retrieved November 18, 2016.
- ^ Bromwich, Jonah Engel (November 17, 2016). "Trump Camp's Talk of Registry and Japanese Internment Raises Muslim Fears". The New York Times. Retrieved November 18, 2016.
- ^ Chow, Kat (November 17, 2016). "Renewed Support For Muslim Registry Called 'Abhorrent'". Code Switch. NPR. Retrieved November 27, 2016.
- ^ a b Ford, Matt (November 19, 2015). "The Return of Korematsu". The Atlantic. Retrieved November 27, 2016.
- ^ a b c Feldman, Noah (November 18, 2016). "Why Korematsu Is Not a Precedent". The New York Times. Retrieved November 27, 2016.
- ^ a b c Trump v. Hawaii, 585 U.S. ___ (2018)
- ^ de Vogue, Ariane (June 26, 2018). "Supreme Court finally rejects infamous Korematsu decision on Japanese-American internment". CNN. Retrieved June 26, 2018.
- ^ "Table of Supreme Court Decisions Overruled by Subsequent Decisions". constitution.congress.gov. Retrieved July 9, 2022.
- ^ https://www.supremecourt.gov/opinions/21pdf/20-827_i426.pdf[bare URL PDF]
- Biskupic, Joan (April 18, 2004). "Prisoners test legal limits of war on terror using Korematsu precedent". USA Today.
- ISBN 978-1-59523-050-8.
- Rountree, Clarke (2001). "Instantiating the law and its dissents in Korematsu v. United States: A dramatistic analysis of judicial discourse". S2CID 144116235.
- 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 978-0-8070-0036-6.
- Works related to Korematsu v. United Statesat Wikisource
- Text of Korematsu v. United States, 323 U.S. 214 (1944) is available from: CourtListener Findlaw Google Scholar Justia Library of Congress
- Galloway, Russell W. Jr. (1989). "Basic Equal Protection Analysis". Santa Clara Law Review. 29 (1). Retrieved February 8, 2021.
- Of Civil Wrongs and Rights, official site (2001 P.O.V.documentary on the 1983 coram nobis case)
- A documentary on Korematsu v. United States
- "Supreme Court Landmark Case Korematsu v. United States" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions
- "Civil Liberties in Times of Crisis: Japanese American Internment and America Today" with Karen Korematsu and Kermit Roosevelt, from the National Constitution Center.
- Japanese Relocation (1943 FILM- viewable for free at not-for profit- The Internet Archive)
- 1944 in United States case law
- 20th-century American trials
- Internment of Japanese Americans
- United States equal protection case law
- American Civil Liberties Union litigation
- History of San Leandro, California
- 1944 in California
- United States Supreme Court cases of the Stone Court
- Overruled United States Supreme Court decisions
- Race and law in the United States
- United States racial discrimination case law
- United States Supreme Court cases