145—7. We uphold the exclusion order as of the time it was made and when the petitioner violated it. There are several reasons why I cannot subscribe to this doctrine. of Int. A military order, however unconstitutional, is not apt to last longer than the military emergency. 1774, we sustained a conviction obtained for violation of the curfew order. Final Report, Japanese Evacuation from the West Coast, 1942, by Lt.Gen. February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union,—about one-fourth of the total area of the nation. But can the Korematsu decision be overruled without a specific case about it appearing at the Court? Dicta, however, can be understood to be powerful statements on their own. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. The power to exclude includes the power to do it by force if necessary. 75; Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. He then goes on to offer the most-powerful rebuke of Korematsu at the Supreme Court since Robert Jackson, Owen Roberts, and Frank Murphy dissented in the original case. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. * * * They undersell the white man in the markets. '10 Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. vii, 9, 15—17. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. Roberts strongly objected to Justice Sonia Sotomayor’s comparison of his decision to Hugo Black’s majority 6-3 decision in Korematsu. See Freeman, 'Genesis, Exodus, and Leviticus; Genealogy, Evacuation, and Law,' 28 Cornell L.Q. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. Final Report, p. 10 see also pp. The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the 'situation was fraught with danger to the Japanese population itself' and that the general public 'was ready to take matters into its own hands. 841. Black argued that the validation of the military's decision by Congress merited even more deference. That is not to say that all such restrictions are unconstitutional.
And on Tuesday, Chief Justice John Roberts made it clear how the five Justice majority in Trump v. Hawaii viewed Korematsu in the canon of Supreme Court decisions. If, as is the fact he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order.
Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. No question was raised as to petitioner's loyalty to the United States. 2601. Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. 1375, 87 L.Ed. The respective spheres of action of military authorities and of judges are of course very different. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 458, 459, 65 L.Ed. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The italics in the quotation are mine. The scope of their discretion must, as a matter of necessity and common sense, be wide. We asked our long-time friend and contributor Lyle Denniston, who has covered the Supreme Court since the late 1950s, for a ruling. In today’s Supreme Court divided decision on the Trump administration’s travel ban, two Justices went where the bench seldom goes: the controversial World War II Korematsu case that upheld wartime internment camps.
Scott Bomboy is the editor in chief of the National Constitution Center. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” Roberts said. Perhaps he should be. In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' 173, 18 U.S.C.A. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. Justice Frankfurter concurred, writing that the “martial necessity arising from the danger of espionage and sabotage” warranted the military’s evacuation order. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism. We have has various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra. Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies * * * at large today' along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. 4. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. Journ. But the facts above recited, and those set forth in Ex parte Metsuye Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention.
2. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. 375. 2124 (77th Cong., 2d Sess.) The Korematsu v. U.S. decision from 1944 centered on the ability of the military, in times of war, to exclude and intern minority groups. Post 24, 66 (May 9, 1942).