Korematsu Opinion Is A Travesty

During World War II, many people were rounded up based on their ethnicity and sent to camps.

In the United States.

Yes, in the United States.

By the government of the United States.

One such person was an American of Japanese descent by the name of Fred Korematsu.

The U.S. Supreme Court accepted a challenge that Korematsu brought.

The opinion came out the wrong way.

That opinion, the concurrence, and the dissents–including a dissent by then-Associate Justice Robert Jackson–are the topic of a discussion led by this columnist at 1 p.m. Wednesday, Aug. 9, at the Fenton History Center, 67 Washington St., Jamestown.

The discussion, called “The Travesty of Korematsu,” is free and open to the public, will last about an hour, and is part of the 2023 Fenton History Center Lecture Series.

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How did this American of Japanese descent get to the high court?

The court’s Korematsu v. United States opinion, written by Justice Hugo Black and issued one week before Christmas 1944, recounts the facts.

In short, the commanding general of the U.S. Army’s western command had issued an order excluding–from San Leandro, Calif., a “military area”–anyone with Japanese ancestors.

Korematsu was convicted in a federal-district court of violating the order. The San Francisco-based federal-appellate court affirmed the conviction.

The high court then granted Korematsu’s petition to hear his challenge.

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The order said that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities.”

Referring to those of Japanese descent, Black wrote “that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. … [T]he war-making branches of the (g)overnment … have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety … [E]xclusion of those of Japanese origin was … necessary because of the presence of an unascertained number of disloyal members of the group … [M]embers of the group … retained loyalties to Japan. … [W]hen under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”

This, the court said, was because of “a military imperative.” It was not “based on antagonism to those of Japanese origin.”

Now please read the previous two paragraphs again, notice how broadly they’re written, and notice how they treat people not as individuals but as members of a particular “population.” The asserted absence of “antagonism” is beyond the point.

But once what is in those two erroneous paragraphs formed the foundation of the erroneous analysis, the erroneous conclusion followed: “Korematsu was not excluded from the (m)ilitary (a)rea 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, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders–as inevitably it must–determined that they should have the power to do just this. 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.”

If that’s how law can work, it’s frightening.

For more on this, and on the dissents, including Jackson’s, please join the discussion at the Fenton History Center.

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In 2018, the high court, in an opinion by Chief Justice John Roberts in Trump v. Hawaii, abrogated the Korematsu opinion.

Dr. Randy Elf joins the Fenton History Center in welcoming the community at 1 p.m. Wednesday, Aug. 9.



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