Prejudice against immigrants from Asia had been longstanding on the West Coast when World War II broke out following the Japanese attack on Pearl Harbor. Within a few weeks the demand spread that Japanese Americans, both naturalized citizens as well as those born in the United States, any of whom might be "saboteurs" or "spies," be removed from the West Coast before the Japanese invaded. The fact that no proof existed that a single one of these people constituted a threat to the United States made no difference. Even the respected columnist Walter Lippmann informed his readers that "nobody's constitutional rights include the right to reside and do business on a battlefield. There is plenty of room elsewhere for him to exercise his rights."

On February 19, 1942, President Roosevelt signed Executive Order 9066 authorizing the Secretary of War to designate parts of the country as "military areas" from which any and all persons might be excluded, and in which travel restrictions might be imposed. A few weeks later General John L. DeWitt, in charge of the Western Defense Command, designated the entire Pacific coast as a military area because of its susceptibility to attack. Curfews were established, and Japanese Americans were at first prohibited from leaving the area, and then from being in the area. The only way Japanese Americans could comply with these contradictory orders was to submit to evacuation to relocation centers in the interior.

The relocation program, in which 110,000 men, women and children were sent to what were in essence prison camps, constituted the most serious invasion of individual rights by the federal government in the nation's history. The entire operation proceeded on the racist assumption that anyone of Japanese ancestry was a traitor.

In wartime, the old saying goes, law is silent, and the Supreme Court, which had only recently begun to play a stronger role in protecting minority rights, was loath to interfere with what the administration considered a necessary war measure. Three cases testing the constitutionality of the evacuation orders were heard by the Court. In the first case, Hirabayashi v. United States (1943), the Court sustained the legitimacy of the curfew, but evaded ruling on the wider implications of relocation.

In the second case, Korematsu v. United States, the Court could no longer ignore the core issue of whether loyal citizens could be summarily relocated to detention camps solely on the basis of their race. Although a majority of the Court agreed with Justice Black's view that military necessity justified the relocation, three members of the Court, Frank Murphy, Owen J. Roberts and Robert H. Jackson, dissented. Justice Murphy's dissent, which most bluntly dealt with what he termed a "legalization of racism," is included here.

On the same day, the Court unanimously authorized a writ of habeas corpus for Mitsuye Endo, a citizen whose loyalty had been clearly established. The Court's rulings in Hirabayashi and Korematsu were criticized by many civil libertarians and scholars from the start, and there has been a general condemnation of them ever since.

After the war ended, the internment haunted the nation's conscience as well. In 1948 Congress took the first step in making amends, enacting the Japanese American Evacuation Claims Act to provide some monetary compensation to those who had lost homes and businesses because of the order. In 1980, Congress again opened the internment issue, and this time a stream of witnesses testified, many of them for the first time, of the hardships and psychological trauma they had suffered. The resulting report, Personal Justice Denied (1983), condemned the removal as unjustified by military necessity, and also concluded that the Supreme Court decisions had been "overruled in the court of history."

For further reading: Peter Irons, Justice at War (1983); Morton Grodzins, Americans Betrayed: Politics and the Japanese Evacuations (1949); Commission on Wartime Relocation, Personal Justice Denied (1983).


Justice Black delivered the opinion of the Court.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can....

Exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgement that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties in Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

We uphold the exclusion order as of the time it was made and when the petitioner violated it.... In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens.... But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger....

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because 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, 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.

Justice Murphy, dissenting.

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 dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite limits to military discretion, especially where marital law has not been declared. Individuals must not be left impoverished of their constitutional rights on plea of military necessity that has neither substance nor support....

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. In it he refers to all individuals of Japanese descents 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. 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, 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.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence....

No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.... 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....

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.

Source: 323 U.S. 214 (1944).

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