Korematsu v. United States

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