Korematsu v. United States, 1944
-Chrissie
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The bombing of Pearl Harbor on 7 December 1941 prompted the entry of the United States into World War II, which officially made the countries of Japan, Germany, and Italy enemies of the United States. This should not have meant that American citizens or residents of German, Italian, and Japanese descent were also enemies of the U.S. However, some American citizens and residents whose ancestry was from one of these countries did find themselves outlawed in some parts of the country. Around 3000 Italian Americans and 11,000 German Americans were held as potential enemies of the state during World War II. However, this is nothing compared to what was done to the Japanese Americans on the West Coast, who were perceived as an inherent threat. Approximately 127,000 people of Japanese ancestry were forcibly removed from California, Oregon, and Washington during 1942; about 65% of these were American-born citizens, most of them Nisei, or first-generation.
Japanese people had long been subject to racialized discrimination in the United States. This is part of the reasoning for two studies done by the U.S. government in 1940 and 1941 which investigated the loyalty of people of Japanese descent. Both studies showed that they posed essentially no threat; one study included a seemingly offhand comment that the Japanese in the United States were more likely to be attacked by white Americans than to attack or conduct espionage. Nevertheless, they were targeted under Executive Order 9066, which allowed for the creation of military exclusion zones within the country and authorized the removal of anyone who might present a military threat. President Franklin Roosevelt signed the order on 19 February 1942; by 24 March all people of Japanese ancestry in those states were ordered to assembly points, from which they were sent to concentration camps scattered around U.S. Refusal to obey the order meant one year in prison and a $5,000 fine (approximately $85,000 in 2021). Surprisingly few people refused relocation, many felt that following the orders proved their loyalty and feared that to speak out meant they would be seen as a threat, exactly the potential for which they were being incarcerated. Fred Korematsu, an American-born citizen of the United States and of the state of California, decided to take that risk. He was arrested for violation of the relocation order on 30 May 1942 and held in a San Francisco jail. There, he was approached by the local director of the ACLU, Ernest Bestig, about using his case to test the validity of the removal orders under the Constitution. Korematsu agreed. Bestig served as his defense lawyer and provided bail to allow Korematsu to leave jail while awaiting trial. When the two men tried to leave the building, they were stopped by military police, who cited the fact that Korematsu violated a military order, not a civilian law, as they took him from the prison in San Francisco to the one at the Presidio (a local army base).
He was tried and convicted of having violated the executive order; his sentence was four years of probation. He and his family were sent to the Central Utah War Relocation Center in Topaz, Utah, the conditions of which he described as having been worse than prison. He was also widely ostracized in the camp, as people felt he was a troublemaker and did not wish to be seen as such themselves.
Korematsu’s first appeal was heard by the US Court of Appeals for the Ninth Circuit, who upheld the original decision. His second appeal was heard by the Supreme Court. The 6-3 decision upholding the conviction was released on 18 December 1944. The Court did acknowledge that the exclusion of groups or particular people were not necessarily Constitutional but was acceptable in wartime and other emergencies. Justice Hugo Black’s majority opinion said “Korematsu was not excluded from the Military Area because of hostility to him or his race…[but] because the properly constituted military authorities…decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast” while the US was at war with Japan. It must be noted here that the large Japanese American population of Hawaii was not relocated, despite the attack having been carried out on those islands and the closer proximity to Japan. Nor were Japanese Americans living outside the West Coast states removed from their homes. Also, Korematsu’s loyalty to the United States was never at issue. The dissenting opinion, signed by Justices Frank Murphy, Robert H. Jackson, and Owen J. Roberts called out the racism of the law and the decision given by their colleagues. Justice Murphy, in particular, pointed to the lack of exclusion and imprisonment of Germans and Italians as proof that the decision to remove the Japanese was based on race. Justice Jackson’s dissent warned of the precedent of a civilian court upholding a military order: “Once judicial opinion rationalizes such an order to show it conforms with 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 who can bring forward a plausible claim of urgent need.”
The case was little discussed in the years after World War II, but the obvious hypocrisy of having interned American citizens on the basis of race remained a shadow over any discussion of The War. In 1980, the Congressional Commission on Wartime Relocation and Internment of Civilians (CCWRIC) was established to review the validity of executive order 9066. Their 1982 report, entitled Personal Justice Denied, concluded the government had acted wrongly in its imprisonment of citizens and residents due to their ancestry. Fred Korematsu was able to use this as one of the bases for his 1983 challenge against his conviction. Alongside this were recently released documents from the Department of Justice that showed information in favor of Korematsu’s defense, such as the studies showing the Japanese were not a threat, were purposefully withheld during his trial and appeals. The racist elements in the creation and enaction of Executive Order 9066 was also coming to light in these documents. Korematsu’s conviction was reversed; not on the basis of the unconstitutional nature of the law, but on the basis of prosecutorial improprieties. In 2011, the Department of Justice offered an official admission of wrongdoing, saying it had incorrectly acted in the prosecution and conviction of Korematsu.
Fred Korematsu was tried, convicted, and saw his conviction reversed without the courts actually addressing the core issue—whether the imprisonment of the Japanese was a legal and constitutional act. Thus, this SCOTUS decision, which essentially permitted the imprisonment of American citizens, has remained as precedent, even as the immorality and illegality of the act is understood. This was referenced in a statement by Chief Justice John Roberts in his majority opinion for Trump v. Hawaii in 2018; he referenced Korematsu in saying “the forced relocation of citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful.” This statement was, however, given as part of the decision which allowed the president to prevent certain people from entering the United States on the basis of their country of origin. Despite the statement from the Chief Justice, Korematsu has not been overturned.