When the Japanese bombed Pearl Harbor on December 7, 1941, fear and prejudice towards the Japanese reached a fever pitch. These attitudes extended to both citizens and non-citizens of Japanese descent living in the United States.
At the time, approximately 120,000 people of Japanese descent lived on the West Coast, and about 70,000 of these were American citizens. There was never at that time, however, nor thereafter, any proven case of espionage or sabotage on the part of Japanese or Japanese-Americans in the United States.
Nonetheless, in February 1942, General John DeWitt, the commanding officer of the Western Defense Command, recommended that “Japanese and other subversive persons” be evacuated from the Pacific Coast. He claimed:
The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan in a war against the nation of their parents.”
He also said that there was “no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation when the final test of loyalty comes.”
President Franklin D. Roosevelt (known himself for not having enlightened attitudes about the Japanese) acted on this recommendation by signing Executive Order 9066. This authorized the Secretary of War or any designated commander, at their sole discretion, to limit and even prohibit some people from being in areas that were deemed critical to national defense and potentially vulnerable to espionage. The ensuing restrictions on people of Japanese origin included forced removal to assembly and relocation centers much farther inland. Ten relocation camps scattered across the West were built to accommodate the Japanese that included the group of 70,000 American citizens.
Soon after the order was enacted, Congress sanctioned the executive order by passing a law that imposed penalties for those who violated the restrictions pursuant to the order.
Fred Korematsu was an American-born citizen of Japanese descent who grew up in Oakland, California. When Japanese internment began in California, Korematsu evaded the order and moved to a nearby town so he could remain near his (non-Japanese) girlfriend. He was later arrested and convicted of violating Exclusion Order No. 34 issued by General DeWitt, which barred all persons of Japanese descent from the “military area” of San Leandro, California. There was no question at the time of conviction that Korematsu had been loyal to the United States and he was not a threat to the war effort.
Korematsu challenged his conviction but the federal appeals court ruled in favor of the United States, and Korematsu’s appeal brought the issue before the U.S. Supreme Court in Korematsu v. United States (323 U.S. 214, 1944).
On December 18, 1944 the Supreme Court decided the case, with a 6-3 majority on the Court upholding Korematsu’s conviction.
Justice Hugo Black, writing for the majority, sided with the government and held that the need to protect against espionage outweighed Korematsu’s rights. He stated that “we cannot reject as unfounded the judgment of the military authorities.” Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”
Justice Robert Jackson dissented, expressing his view that the military ruling had no place in law under the Constitution. Korematsu’s only crime, he wrote, was “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.” Nevertheless, he opined that “The military reasonableness of these orders can only be determined by military superiors. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task.”
Justice Owen Roberts disagreed, writing “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.” He also objected that a relocation center “was a euphemism for prison,” and that the internment of the Japanese was based upon “the disinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices.”
Justice Frank Murphy agreed with Roberts in his dissent, finding that “this exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”
In 1984, Korematsu challenged the earlier decision through a writ of coram nobis in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). (A writ of coram nobis is the name of a legal order allowing a court to reopen and correct its judgment upon discovery of a substantial error not appearing in the records of the original judgement’s proceedings which, if known at the time of judgment, would have prevented the judgment from being pronounced.)
In this later case, Korematsu provided evidence establishing that the Justice Department had suppressed information from governmental sources that contradicted the Army’s assertion that the Japanese American community represented a national defense risk. The District Court granted his writ and overturned Korematsu’s original conviction. However, the District Court emphasized that in issuing this decision, it had the power to correct only errors of fact, not errors of law. The essential holding of the 1944 Korematsu decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched.
The U.S. Government officially apologized for the internment in the 1980s and paid reparations totaling $1.2 billion, as well as an additional $400 million in benefits signed into law by George H. W. Bush in 1992. In January of 1998, President Bill Clinton named Fred Korematsu a recipient of the Presidential Medal of Freedom.
Korematsu has never been officially overturned, and as Dean M. Hashimoto in “The Legacy of Korematsu v. United States: A Dangerous Narrative Retold” notes: “Popular wisdom has it that Korematsu has silently passed away as legal precedent.” But in fact, as he points out, “The Korematsu case has been applied in a traditional manner under stare decisis, primarily from the 1940s through the 1960s, in cases involving postwar regulation, immigration law, and national security law.” From the 1980’s onward, however, as he shows, treatment of the case changed:
Justices assign negative persuasive weight to the result reached in Korematsu. This approach recognizes that Korematsu is now publicly perceived to have been decided incorrectly. By placing Korematsu in its historical context, the Court therefore is able to use it in a way substantially different from ordinary stare decisis.”
As he observes, “The Court’s reliance on evolving interpretive methodologies has mirrored changing public sentiments about the Japanese internment.”