Korematsu v. United States: A Judicial Mistake that Haunts Us Today
By Connor McNairn
The United States did not officially join World War II until December 1941 when Japan
bombed the American Pacific Naval Fleet at Pearl Harbor. In February 1942, just months after
Japan’s attack, President Franklin D. Roosevelt issued an executive order that authorized the
creation of “military zones” on the West Coast. In these zones, military commanders had the
right to impose curfews and isolate Japanese Americans in an effort to combat potential attempts
of Japanese espionage and sabotage. From this order, military commanders authorized to
relocate Japanese Americans to internment camps. Roosevelt was motivated to issue this order
following “reports” of Japanese disloyalty in the American West. One month later, Congress
approved the order and detailed the penalties if violations should occur.
Gordon Hirabayashi, a student at the University of Washington, challenged the
constitutionality of his detention under Roosevelt’s order after he broke a curfew. Hirabayashi
argued that the curfew policy violated his Fifth Amendment rights of protection under the law.
The Court found that Roosevelt’s Executive Order 9066 did not violate Hirabayashi’s rights,
because it motivated “solidarity” and was a necessary given in wartime context. In Hirabayashi
v. United States (1942), the Court declined to rule on the constitutionality of Roosevelt’s
“evacuation” and relocation programs. Shortly thereafter, however, the Court granted certiorari
to Toyosaburo (“Fred”) Korematsu, a citizen who was convicted for violating Order 9066 after
refusing to leave his California home for relocation. The Court’s decision to hear Korematsu’s
case would ultimately set the stage for one of the most divisive and racially motivated Supreme
Court opinions ever issued.
Fred Korematsu was born in Oakland, California. Even though Korematsu was an
American citizen, the government targeted him simply because he was of Japanese descent.
Unlike his parents and thousands of other Japanese Americans, Korematsu refused to obey Order
9066. As a result, military authorities sent him to the Tanforan assembly center with his parents
and over 7,000 other Japanese citizens. According to Korematsu, the internment camps were
“definitely an imprisonment under armed guard with orders [to] shoot to kill.” In defiance of
this process, Korematsu filed suit in federal district court, arguing that he had never been to
Japan, spoke very broken Japanese, and was prepared to “bear arms” for the benefit of the United
States. Korematsu hoped to prove that while he looked Japanese, he was in no way sympathetic
to the Japanese cause. The court sentenced him to five years’ probation for disobeying the
removal order. The federal appeals court affirmed the district court decision. Two years later,
the Supreme Court granted Korematsu certiorari.
Ultimately, that Court also affirmed, in a 6-3 decision that Fred Korematsu violated a
lawful order issued by the president. The key question pertained to the war powers of both the
president and Congress. The Court specifically focused on Article I, Section 8, of the
Constitution, which outlines the war-making powers of Congress and Article II of the president.
According to the Constitution, Congress has the power to declare war, while the president is the
commander in chief. Following a congressional declaration of war, the commander in chief has
the power to direct military operations. Because the United States was formally at war with
Japan and because “intelligence reports” demonstrated that Japanese Americans posed a serious
threat to the nation, the president was felt justified in ordering the detention and relocation of
Japanese Americans living in the United States.
Justice Hugo Black, who delivered the opinion of the Court, supported President
Roosevelt’s logic in issuing the order. He began by defending the Court’s decision in
Hirabayashi and noted that military officials found it necessary to expand their control from
curfews to relocation. He gave full discretion to military personnel, noting that because military
authorities are “charged with the primary responsibility of defending our shores,” the exclusion
and relocation efforts spearheaded by Roosevelt were just. Black found no racial prejudice in
Roosevelt’s order. He argued that “[casting] this case into outlines of racial prejudice, without
reference to the real military dangers which were presented, merely confuses the issue.”
Concurring, Justice Felix Frankfurter argued that Roosevelt’s actions, backed by
Congress, were well within the scope of the war-making powers afforded to them by the
Constitution. Ultimately, Frankfurter contended that disallowing the military to carry out a
constitutional duty would render the Constitution ineffective. The crux of Black and
Frankfurter’s argument was built upon the assumption that military reports concerning potential
danger were accurate – an assumption that Justice Frank Murphy strongly contested.
Murphy artfully dismantled Black and Frankfurter’s arguments. Murphy first indicated
that no commander had declared martial law. In situations where martial law has been declared,
military officers assume control of the citizens and the judicial process when constitutional rights
are not observed. In such a scenario, the gathering and relocation of Japanese citizens may be
justified. But because martial law was not in effect during the Korematsu’s ordeal, the
separation and relocation of Japanese citizens “falls into the ugly abyss of racism.” He was
correct in his assessment. After all, authorities detained Korematsu while walking down the
street with his partner because he “looked Japanese.”
In addition to arguing that the order relied on inherently racist processes, Murphy also
argued that for military personnel to execute these orders, there must be “immediate, imminent,
and impending” public threat requiring prompt intervention. He correctly noted that no evidence
suggested an immediate threat. Relocating Japanese Americans who have not been convicted of
any crime “deprives all those within [the military’s] scope of the equal protection of the laws as
guaranteed by Fifth Amendment.” His criticism clearly articulated that this order enjoyed no
constitutional justification and simply targeted individuals for being of Japanese descent.
Additionally, no imminent danger to the public justified the order – it was merely an attempt by
the president and Congress to establish stronger control over the people in response to a heinous
attack.
Supreme Court decisions play a vital role in shaping American political policy, as this
case clearly demonstrates. Because of stare decisis – the principle that future legal decisions are
based on precedent – the Court’s complicity regarding a blatantly racist and unfounded law has
carried into more contemporary political and legal cases. The key “threat” to Western norms and
security in the twenty-first century is radical terrorism. Since the World Trade Center attacks on
September 11, 2001, the United States has declared a “war on terror.” Regardless of the phrase’s
ambiguity, this declaration authorizes the president to mobilize and utilize military personnel and
resources to most effectively combat perceived terror threats.
The average American expects terrorists to be of Middle-Eastern origin. Following the
9/11 attacks, the narrative that “Muslims” were trying to harm or kill Americans has gained a
stronger foothold in American politics. While this inaccurate portrayal is nothing more than an
attempt to peddle xenophobic agendas, the serious racial undertones driving this depiction of
terrorism present a serious threat to the constitutional liberties enjoyed by American citizens. In
Korematsu, the Court determined that Japanese threats, in conjunction with the attack on Pearl
Harbor, justified the forced removal of over 100,000 Japanese-Americans (the “threats,” in this
case, were unsubstantiated). Because the Korematsu decision has never been overturned, and
because precedent plays such a substantial role in future Court decisions, is it not within the
realm of possibility that “threatening” Muslims may face similar treatment in the United States?