Fred Korematsu

Nannie Doss
Olympe de Gouges

This week, we’re talking about Fred Korematsu, whose great crime was… being in the place where he was born.  How did America get to the point of incarcerating its own citizens in the 1940s? And what does that story have to tell us about today? 

Featured image, from left to right: Gordon Hirabayashi (one of three to openly defy internment, the defendant in the case Hirabayashi v. United States), Minoru Yasui (deliberately broke curfew in Portland to test the constitutionality of a military-imposed curfew, the defendant in the case Yasui v. United States), and Fred Korematsu (the defendant in the case Korematsu v. United States).

Quotes mentioned in the episode

Key text of Executive Order 9066

“Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, … to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.”

Partial quote from the court’s opinion in Korematsu v. United States

“It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures,…There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.”

Quotes from dissenting opinions

Owen Roberts

“We cannot shut our eyes to the fact that, had the petitioner attempted to violate [the order] and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp….Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.”

Robert Jackson

“No claim is made that [Korematsu] is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists 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…Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to 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 that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

Frank Murphy

“No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.”…Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils….I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. 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. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.”

Anti-canon

Korematsu v. United States is one of four Supreme Court rulings that are now considered to have been wrongly decided. There have been described as “the set of cases whose central propositions all legitimate decisions must refute” (article here). The others are Dred Scott v. Sandford, Plessy v. Ferguson, and Lochner v. New York.

Trump v. Hawaii

There is some debate as to whether Chief Justice Roberts overruled Korematsu v. United States in his opinion on Trump v. Hawaii. Smarter legal scholars than us are arguing about this; you can find an article about it here, and an article from the National Legal Director of the ACLU here.

Charities that can use your support

The American Civil Liberties Union (ACLU): Working to protect civil liberties. They’re mentioned in this episode for their work on Korematsu v. United States! They’re working on a lot of cases in the American court system right now. You can become a member or make a one-time donation. Donate here.

The Refugee and Immigrant Center for Education and Legal Services (RAICES): Provides free and low-cost legal services for immigrants and refugees. You can make a one-time donation or schedule monthly donations. Donate here. RAICES is also looking for volunteers.

Where to Listen

Nannie Doss
Olympe de Gouges

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