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Korematsu: A Heart-Breaking Landmark Decision

The Supreme Court’s landmark ruling in Korematsu v. United States (1944), upheld a government program that required the exclusion of Japanese American citizens from areas along the West Coast on the premise, without benefit of any evidence, that they represented a threat to engage in sabotage and espionage on behalf of America’s enemy in World War II. The decision represented a swift plunge, as Justice Frank Murphy wrote in dissent, into “the ugly abyss of racism,” for it promoted the unsavory proposition that citizens could be punished for their ancestry.

The Court’s ruling in Korematsu was part of the larger failure of all three governing institutions—-executive, legislative and judicial—to honor and defend the Constitution, due process of law and equal protection. It thus represents a cautionary tale for a nation that might willingly scatter to the four winds fundamental democratic and legal principles, including the rule of law, on the predicate of expediency in service of values wholly foreign to our constitutional system.

A year after the attack on Pearl Harbor, President Franklin D. Roosevelt on February 19, 1942, issued Executive Order No. 9066 authorizing the Secretary of War, Frank Knox, to establish military zones over which he would exercise power to control the presence, movement and exclusion of any person in the area. The order reflected the growing anti-Japanese hysteria, racism and demands from members of Congress and the press to remove Japanese American citizens from the coastal region. Roosevelt was persuaded by invocations of “military necessity” from defense officials, although the foundational report on which the claim was asserted, was subsequently determined to reflect the anti-Japanese racism of those who authored it, rather than any supportive facts or evidence. Within a month, Congress passed legislation supporting and enforcing the executive order, which brought the full force of governmental power to bear on the civil liberties of 110, 000 American citizens.

Fred Korematsu was convicted for violating the exclusion order, that is, for refusing to leave his home in California. Justice Hugo Black, who wrote for a 5-4 majority, began by addressing the charge of racism. He declared, in terms that introduced to constitutional doctrine and the law of equal protection the standard of “strict scrutiny,” to apply to any legal restrictions that curtailed the civil rights of a “single racial group.” Black said of such restrictions that “the courts must subject them to the most rigid scrutiny.” He wrote: “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

But Justice Black denied the actions of the army were grounded on racial prejudice. Casting the case into “the outlines of prejudice,” he wrote, “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.”

Having dismissed the charge of racism, Justice Black concluded that the “military authorities considered that the need or action was great, and time was short.” He added that the Court could “not now,” avail itself of the “calm perspective of hindsight” and say that the actions were “unjustified.” In the end, the majority believed the exclusion order met the test of reasonableness.

In a biting dissent, Justice Frank Murphy, who had established a reputation for defending civil rights and liberties before his appointment to the Court by President Roosevelt, asserted that the exclusion order crosses “the very brink of constitutional power,” and “falls into the ugly abyss of racism.” The exclusion of all persons with “Japanese blood in their veins” is based on the assumption that “all” persons of Japanese ancestry tend to inflict sabotage and espionage against the United States. Murphy wrote, icily: “It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.”

Korematsu raised an issue of fundamental importance for the exercise of judicial power. What, exactly, is the role of the Court when hearing cases involving military and national security programs and actions? Should the Court apply the rational basis test, as it does in so many of the cases it hears? If the military actions involve racial classifications, as Korematsu did, should the Court truly, vigorously apply the standard of strict scrutiny, or does that plunge the Justices into the realm of policy making in an area in which they have no qualifications or credentials? Or should the Court apply the standard of judicial restraint and exhibit deference? If so, how much deference, particularly considering Justice Black’s reference to “the calm perspective of hindsight?’

These questions resonate in our time, and surely will endure throughout the ages. The Korematsu Court’s exploration of this issue is enlightening. We turn to that discussion next week, as well as America’s formal apology in 1988 to surviving members of the relocation program.

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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