JAPANESE AMERICAN CASES Hirabayashi v. United States 320 U.S. 81 (1943) Korematsu v. United States 323 U.S. 214 (1944) Ex Parte Endo 323 U.S. 283 (1944)

For more than a month after the Japanese attack on Pearl Harbor in December 1941, no one of high authority in the armed services or elsewhere in the national government suggested seriously that persons of Japanese ancestry should be moved away from the West Coast. The Army's historian wrote that in February and March of 1942 the military estimates were that "there was no real threat of a Japanese invasion" of the area. Yet by March 1942 a program was fully underway to remove about 120,000 persons from their West Coast homes and jobs and place them in internment camps in the interior of the country. About 70,000 of these people were citizens of the United States; two out of every five people sent to the camps were under the age of fifteen or over fifty. All were imprisoned for an indefinite time without any individualized determination of grounds for suspicion of disloyalty, let alone charges of unlawful conduct, to be held in custody until their loyalty might be determined. (See preventative detention.) The basis for their imprisonment was a single common trait—their Japanese ancestry.

The military services came to discover the "military necessity" of relocating the Japanese Americans in response to pressure from the West Coast congressional delegations and from other political leaders in the region—including, to his later regret, earl warren, then attorney general of California. These politicians were responding, in turn, to a clamor from certain newspapers and labor unions, along with (as U.S. Attorney General francis biddle later listed them) "the American Legion, the California Joint Immigration Committee, the Native Sons and Daughters of the Golden West, the Western Growers Protective Association, the California Farm Bureau Federation [and] the Chamber of Commerce of Los Angeles." The groups' campaign was aided by newspaper accounts of American military defeats and Japanese atrocities in the early days of the war, and by false reports of sabotage at Pearl Harbor. Anti-Asian racism, long a feature of California, now had a focus. In Hawaii, which had been attacked, no evacuation was proposed; persons of Japanese ancestry constituted almost one third of that territory's population. On the West Coast, Japanese Americans barely exceeded one percent of the population; thus, no political force resisted the mixture of fear, racism, and greed. "The Japanese race is an enemy race," said General John DeWitt in his official report to the War Department. Once the Army urged wholesale evacuation, the opposition of Biddle and the Justice Department was unavailing. President franklin d. roosevelt sided with the Army, and the evacuation began.

The program, first established by executive order 9066 and then partly ratified by Congress, called for three measures in "military areas"—that is, the entire West Coast. First, persons of Japanese descent were placed under curfew at home from 8:00 p.m. to 6:00 a.m. Second, they would be excluded from "military areas" upon military order. Third, they would be "relocated" in internment camps until their "loyalty" could be determined. The loyalty-determining process was leisurely; as late as the spring of 1945 some 70,000 persons remained in the camps.

The three parts of the program, all of which raised serious constitutional problems, were considered separately by the Supreme Court in three cases: Hirabayashi v. United States (1943), Korematsu v. United States (1944), and Ex Parte Endo (1944).

The Hirabayashi case offered the Court a chance to rule on the validity of both the curfew and the exclusion orders. A young American citizen was charged with violating the curfew and refusing to report to a control station to be evacuated from Seattle, where he lived. He was convicted on both counts, and sentenced to three months of imprisonment. In June 1943 the Supreme Court unanimously upheld the curfew violation conviction, and said that it need not consider the validity of the exclusion order, because the two sentences were to run concurrently.

Not until December 1944 did the Court reach the other parts of the evacuation program. In Korematsu, the Court divided 6–3 in upholding an order excluding an American citizen from his home town, San Leandro, California. On the same day, the Court in Endo avoided deciding on the constitutional validity of internment. Instead, it concluded that the act of Congress ratifying the evacuation program had not authorized prolonged detention of a citizen whose loyalty was conceded. The Court assumed that some brief detention was implicitly authorized as an incident of an exclusion program aimed at preventing espionage and sabotage. Any further detention would have to rest on an assumption the Court was unwilling to make: that citizens were being detained because of their ancestry, in response to community hostility. Justice owen roberts, concurring in the result, found congressional authority for internment in the appropriation of funds to operate the camps. Reaching the constitutional issues the majority had avoided, he concluded the Endo's detention violated "the guarantees of the bill of rights … and especially the guarantee of due process of law."

The Japanese American cases have made two positive contributions to the development of egalitarian constitutional doctrine. The Hirabayashi and Korematsu opinions were links in a chain of precedent leading to the Supreme Court's recognition that the Fifth Amendment's due process clause contains a guarantee of equal protection as a substantive limit on the conduct of the national government. (See bolling v. sharpe; equal protection of the laws.) And Korematsu first announced the principle that legal restrictions on the civil rights of a racial group are "suspect." (See suspect classifications.) Even so, these decisions deserve Eugene Rostow's epithet: "a disaster." The Supreme Court's evasion of issues, its refusal to examine the factual assumptions underlying the "military necessity" of evacuation—in short, its failures to perform as a court—are easier to forgive than to excuse. There is little comfort in the fact that the Court's Hirabayashi and Korematsu opinions were authored by Justices celebrated as civil libertarians.

Chief Justice harlan fiske stone wrote for a unanimous Court in Hirabayashi, approaching the validity of the curfew not so much as a question about the liberties of a citizen but as a question about congressional power. The war powers, of course, are far-reaching; they include, as Justices often repeat, "the power to wage war successfully." Thus, for Stone, the only issue before the Court was whether there was "a rational basis " for concluding that the curfew was necessary to protect the country against espionage and sabotage in aid of a threatened invasion. As to that necessity, the Chief Justice said: "We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry." There was no effort to examine into the likelihood of invasion, or to specify what experience demonstrated the "fact" assumed. The one hard fact was that no sabotage or espionage had been committed by persons of Japanese ancestry at the time of the Hawaii attack or afterward. (California's Attorney General Warren had been equal to that challenge, however: " … that is the most ominous sign in our whole situation. It convinces me more than perhaps any other factor that the sabotage we are to get, the fifth column activities that we are to get, are timed just like Pearl Harbor was timed.…")

Another question remained: Why impose wholesale restrictions on persons of Japanese ancestry, when Germans and Italians were being investigated individually? Here the Court took refuge in a presumption: "We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour [disloyal] persons could not readily be isolated and separately dealt with.…" This is the classical language of "rational basis" review; government officials have made a factual determination, and a court "cannot say" they are mistaken. That standard of review serves well enough to test the reasonableness of a congressional conclusion that some type of activity substantially affects interstate commerce. Itisutterly inappropriate to test the justification for selectively imposing restrictions on a racial minority.

Justice hugo l. black began his opinion for the majority in Korematsu by recognizing this difference. Racial distinctions, he said, were "immediately suspect," and must be subjected to "the most rigid scrutiny." Following that pronouncement, however, all judicial scrutiny of the racial discrimination at hand was abandoned. The opinion simply quoted the "We cannot say" passage from the Hirabayashi opinion; stated, uncritically, the conclusions of the military authorities; observed that "war is an aggregation of hardships"; and—unkindest cut—concluded that "Citizenship has its responsibilities as well as its privileges."

Justice Roberts, dissenting, argued that Korematsu had been subjected to conflicting orders to leave the military area and to stay put, a plain due process violation. It was left to Justice frank murphy—in his finest hour—to expose the absence of imperial clothing. He demonstrated how the "military" judgment of the necessity for evacuation had departed from subjects in which Army officers were expert and had embarked on breathtaking sociological generalization: the Japanese American community were "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion" (quoting General DeWitt).

Decades later, Peter Irons discovered in government archives irrefutable evidence that government officers had deliberately misled the Supreme Court on questions directly related to the claim of military necessity for the evacuations. In response to this evidence, in the mid-1980s federal district courts set aside the convictions of Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui (whose conviction had been affirmed along with Hirabayashi's).

Justice robert h. jackson, dissenting in Korematsu, said, in effect: There is nothing courts can do to provide justice in this case, or in any case in which the military and the President are determined to take action in wartime; yet we should not lend our approval to this action, lest we create a precedent for similar extraconstitutional action in the future. Of all the oft-noted ironies of the Japanese American cases, this topsy-turvy prediction may be the most ironic of all. Korematsu as a judicial precedent has turned out to provide a strong doctrinal foundation for the Supreme Court's vigorous defense of racial equality in the years since mid-century. The disaster of the Japanese American cases was not doctrinal. It was instead the betrayal of justice there and then for Gordon Hirabayashi, Fred Korematsu, Minoru Yasui, and some 120,000 other individuals—and thus for us all.

Kenneth L. Karst
(1986)

(see also: World War II.)

Bibliography

Grodzins, Morton 1949 Americans Betrayed: Politics and the Japanese Evacuation. Chicago: University of Chicago Press.

Irons, Peter 1983 Justice at War. New York: Oxford University Press.

Rostow, Eugene V. 1949 The Japanese American Cases—A Disaster. Yale Law Journal 54:489–533.