The Story Behind Korematsu
v United States by Douglas O. Linder
(2018) In
the 2018 case of Trump
v Hawaii, the Supreme Court upheld the Trump
Administration’s policy of
banning most residents of seven countries from
entering the US.
The Court upheld the ban on a 5 to 4 vote,
rejecting arguments that the ban was “anti-Muslim.” Curiously,
Chief Justice Roberts in his
opinion for the Court chose to say something about a
case decided in the middle
of World War II, Korematsu versus the United States. The Chief
Justice wrote, “Korematsu was
gravely wrong the day it was decided, has been
overruled in the court of
history, and—to be clear--has no place in law under
the Constitution.” It
seemed to be the one thing all nine of the justices
could
agree on. Korematsu
was a terrible
decision. So
how did it happen? Fred
Koresmatsu’s father immigrated from Japan to the
United
States in 1904.
He settled in San
Francisco in 1905, the same year delegates met there
to form the Asiatic
Exclusion League.
The press regularly
warned about the “yellow peril.” Fred’s
mother immigrated from Japan nine years later.
Fred
was the third son, born in 1919. Fred was
not his given name.
An elementary school teacher found his real
name to be unpronounceable and asked him one day,
“How would you like to be
called ‘Fred’?” Fred’s
family started and ran a flower nursery in East
Oakland. They
regularly attended samurai
movies at the Buddhist temple, but the family
converted to Christianity. Fred
attended church every Sunday and became
a member of a Boy Scout troop. Almost all of Fred’s
friends were white; few
Japanese lived close by. Fred
was not the favored son. He helped
at the nursery, but never liked the
work. He
got into more mischief than his
brothers. Fred
was shy and reserved, but
he loved to dance to Big Band music. He
liked competitive sports and participated on his
high school tennis and swim
teams. Fred
said, “in high school, I felt equal.” In public,
he felt different.
He had to go to Chinatown because none of the
barbers near his home would cut his hair.
Some restaurants would refuse to serve him. Despite
the discrimination, Fred was patriotic. In 1940,
when Congress instituted its first
peacetime draft, Fred registered on the first day. He was
classified 4-F because of a gastric
ulcer. He
tried to volunteer for navy
radio work, but wasn’t accepted. He got
a job in a shipyard and was about to be promoted to
foreman when we was
expelled from the union because of his race.
The same thing happened at his next job, at
the Golden Gate Iron Works. On
the morning of December 7, 1941, Fred Korematsu was
on a
hillside in a car with his girlfriend listening to
music on the car radio. When
the music was interrupted with a bulletin announcing
the bombing of Pearl
Harbor, Fred said he thought it “was a dream.”
“It burned me up that this happened,” he
said. He
told his Italian-American girlfriend, “I
better get back home.” Within
hours of the bombing, President Roosevelt declared
all Japanese immigrants over the age of fourteen to
be “enemy aliens.”
The proclamation authorized the seizure of
enemy aliens deemed to be dangerous and subjected
the homes of
Japanese-Americans to random searches.
Police entered Korematsu’s home and
confiscated flashlights, cameras,
and anything else that they thought might be used
for signaling.
They trained a spotlight on the family
nursery business and stationed a guard outside their
house. Before
long, influential columnists were demanding that
persons of Japanese ancestry be locked up.
(Interestingly, almost no such calls were
made to remove persons of
either German or Italian ancestry.)
Columnist Henry McLemore urged the government
to “herd ‘em up, pack ‘em
off, and give ‘em the inside room in the Badlands. Let ‘em be
punched, hurt, hungry, and dead up
against it.” Columnist
Walter Lippman
said, without evidence, that “the Pacific Coast is
in imminent danger of a
combined attack from within and without.”
While
California’s Attorney General, Earl Warren,
advocated
for the expulsion of Japanese from his state, the
two important figures in
Washington remained unconvinced.
Attorney General Biddle told President
Roosevelt that removal was
”inadvisable .”
And J. Edgar Hoover, no
great civil libertarian he, wrote, “The necessity
for mass evacuation is based
primarily upon public and political pressure rather
than factual data.” The
biggest push for removal in the military came from
General John DeWitt, head of the Western Defense
Command. In
the end, it would be DeWitt who would
oversee the removal process. DeWitt
prepared what was called a report but what was
essentially a brief arguing for
removal and sent it to the Secretary of War, Harry
Stimson. In
his report, DeWitt described persons of
Japanese ancestry in America as “112,000 potential
enemies…at large today…that
are ready for concerted action.” In one
of the most draw-dropping sentences of all time,
DeWitt wrote, “The very fact
that no sabotage has taken place to date is a
disturbing and confirming
indication that such action will be taken.” On
February 19, 1942, President Roosevelt signed an
executive order authorizing the War Department to
draft and enforce a removal
order. The
next month, General DeWitt
issued a series of proclamations. Proclamation
1
created a “Military Area” that included the western
halves of California,
Oregon, and Washington, as well as the southern half
of Arizona. It
declared that all persons of Japanese
ancestry, both citizens and non-citizens would be
removed from that area. Proclamation
3 imposed an immediate curfew
from 8 pm to 6 am for persons of Japanese ancestry
and allowed them to travel
only to and from work.
Proclamation 4
imposed a “freeze order” prohibited persons of
Japanese ancestry from leaving
the West Coast unless in a manner specified by the
military. The
most consequential orders of DeWitt came next. They
required persons of Japanese ancestry to
report to so-called “assembly centers,” where they
would be confined until
permanent camps or relocation centers could be
constructed at remote inland
locations. Justice
Owen Roberts, in his
dissent in the Korematsu case, described “assembly
center” as “a euphemism for
a prison.” General
DeWitt’s exclusion order was posted on telephone
poles all over the Military Area of the West Coast. Each
family was required to send one representative
for processing.
Families had only days
to decide to make major decisions—what to be done
with their business (if they
had one), which possessions to take and which to
give away, what should be done
with their homes.
The
vast majority of Japanese-Americans decided to
follow
the government’s orders. By
cooperating,
they hoped, they would be treated more humanely. Also,
they’d prove themselves to be loyal
Americans. It’s
also likely that many
feared they might be the victims of mob violence if
they remained where they
were. Fred’s
thoughts focused on how he could maintain his
relationship with his girlfriend, Ida.
He was, after all, 21—and deeply in love. His first
thought was to escape with Ida to
Nevada, outside of the exclusion zone.
But Ida wasn’t ready to move. She
showed Fred an ad for a plastic surgeon in San
Francisco. Perhaps
surgery could change his Japanese
features and he could pass as something
else—Spanish-Hawaiian maybe? Fred
changed the name on his draft card to
Clyde Sarah because the name sounded like it might
fit a person of that mixed
ancestry. Fred
visited the surgeon and told him he lived with an
“American girl” and wanted to change his looks so he
would not be subject to
harassment. Fred
paid $300 for the
surgery, but considered it a failure—he was
instantly recognized by everyone he
knew. He
later called the decision to
have surgery “a stupid thing.” May
9 was the day on which all persons of Japanese
ancestry
were officially banned from Alameda County, where
Fred lived. The
rest of Fred’s family, as required,
reported to their assembly center, a racetrack in
San Bruno, California.
They became family number 21538. The center
was surrounded by barbed wire and armed guards were
posted at the
entrance. Each
entrant was searched,
inoculated, fingerprinted, and interrogated.
Then they were assigned to cramped barracks
or stables. Fred
Korematsu ignored the order. He
described the decision mainly as “a
personal issue--I was so young.” But he
knew the order was wrong. “I felt
that I
was an American citizen and I had as much rights as
anyone else. I
don’t even have any ties to Japan…I just
thought it was unfair.
It was wrong.” He
said, “I was taught in high school you had equal
right. You
believe in the Constitution…That’s what
our soldiers die for, for freedom.” After
his family left for camp, Fred later recalled
feeling
“all alone.” Well,
not quite all
alone. He
had Ida. Fred’s
freedom did not last long. Three
weeks after the evacuation order went
into effect, Fred and Ida walked down a street in
San Leandro. An
officer stopped Fred.
He identified himself as Clyde Sarah. But he
quickly admitted he was of Japanese
ancestry and that the rest of his family was in
camp. Fred
was arrested and jailed. While
being held at the Presidio stockade in San
Francisco,
Fred received a visit from a man he did not know. The
visitor said his name was Ernest Besig,
and that he was a representative of the ACLU.
The ACLU had been looking for someone to
challenge the exclusion order
in court. With
no luck. Potential
litigants worried about making
things more difficult for those in camps, or about
appearing to be
unpatriotic. And
Besig warned Fred that
even if he fought the order, the odds of winning
were stacked against them. Courts
tend to be deferential to decision of
the military in wartime. But Fred
agreed
to fight. Shortly,
after meeting with Besig, Fred was taken to the San
Bruno assembly center and assigned to a horse stall. The stall
had gaping holes that the wind and
dust blew through.
It had no heat or
water. The
only furnishings were a
mattress and a single light bulb.
According to Fred, “jail was a lot better
than this.” His
father was not happy with Fred’s actions. “He gave
me the dickens for getting involved
in all this trouble,” he said. Family
members and others worried that what he was doing
was going to make it worse
for everybody.
Fred said later he
understood their feelings: “Japanese people, they’re
peaceful people and they
like to leave things alone.” Because
Fred had violated this cultural norm, he was largely
shunned in camp.
Fred
was charged with the crime of “remaining in that
portion of Military Area 1 covered by Civilian
Exclusion Order number 34.” Bail was
set initially set at $2500, then
raised substantially when Besig attempted to pay it. It was
clear that the government had no
intention of letting Fred Korematsu go anywhere they
didn’t want him to
go. The
case began receiving national
attention. ACLU
lawyers filed a motion to dismiss the charges. They
argued that the order was not a valid
exercise of constitutional power. They
also argued that it violated a whole laundry list of
Fred’s constitutional rights:
the right to be free from unconstitutional searches
and seizure, the right to
due process, the right to be free from cruel and
unusual punishment, and the
rights to freedom of movement and assembly.
And, of course, they argued that the order
violated Fred’s right to
equal protection under the law. The
national ACLU was on board with raising the issue of
Fred’s basic rights, but was not happy with the
direct attack on the
constitutional authority of the president, through
the military, to issue the
order. Not
willing to fight for Fred
with one hand tied behind their backs, the Northern
California ACLU chapter
freed itself from the national body and became
independent. The
government defended the order as a reasonable
response
to a threat to national security. In its
brief, the government described persons of Japanese
ancestry as “this
unassimilated group of relatives of a nation with
which the people of this
country are now engaged in mortal combat.”
There continued presence on the West Coast,
the brief argued, “gave
ample opportunity for sabotage and fifth column
activity.” As
the ACLU expected, its motion to dismiss the charges
against Korematsu were rejected. Fred
plead not guilty to the charges and the case was set
for trial. The
sole questions of facts for trial were
whether Fred was a person of Japanese ancestry and
whether he was within
Military Area 1, the exclusion area. The
prosecution presented just one witness, and FBI
special
agent who interviewed Korematsu after his arrest. The agent
testified that Fred admitted he was
of Japanese ancestry and that he remained in the Bay
Area after the exclusion
order took effect.
The agent also
testified that Korematsu changed the name on his
draft card and birth
certificates, evidence that he knew he was in
violation of the law.
Fred
testified on his own behalf. He
testified that he was a loyal
American. He
told the judge, “As a
citizen of the United States I am ready, willing,
and able to take up arms for
this country.”
Judge
Adolphus St. Sure found Korematsu guilty. He
sentenced him to probation for 5
years. Which,
of course, meant almost
nothing. He
was headed to Utah.
By
September, the military had completed inland
relocation
centers and began moving families there from the
assembly centers to which they
were first assigned.
Fred and his family
were shipped to Topaz, Utah, southwest of Salt Lake. It was a
harsh, desert environment. But the
Japanese Americans did what they
could to make conditions more livable.
They planted rock gardens, created craft
areas, painted rooms, and built
a functioning community. A seasonal
leave policy allowed some of the incarcerated to
work on nearby sugar beet
farms during harvest time. When
a temporary work release program was put in place,
Fred
jumped at the chance to escape camp life.
After passing a background check, Fred was
able to take a job at a
concrete and pipe company in Salt Lake City.
The
government, meanwhile, did what it could to make
Korematsu’s appeal difficult. It filed a
motion to dismiss his appeal on procedural grounds. A hearing
on the motion was set before the
Ninth Circuit Court of Appeals. Fred’s
case was heard with that of two other
Japanese-Americans also found to have
violated exclusion orders, one from Oregon and
another from Washington State. Fred’s
attorney argued that “there is no decision in
history”
that suggests the rights of citizens could be
distinguished on the basis of
their ancestry.
The government argued
the exclusion order was justified because the
government had no way of
distinguishing the loyal Japanese-Americans from the
disloyal.
As
Fred awaited news on the Ninth Circuit’s decision,
he
sent a letter to Besig. He asked,
among
other things, “How is it in San Francisco?
I sure miss the ocean and the Golden Gate
Bridge?” The
Ninth Circuit decided to punt the hard questions to
the
Supreme Court.
Refusing to rule on
constitutional questions itself, the court
“certified” the issues to the US
Supreme Court.
In effect, the court was
saying to the Supreme Court, “These are some big
issues we’d rather not decide
if we don’t have to.
Won’t you help us
out here?” The
Supreme Court declined
the invitation and sent the case back to the Ninth
Circuit for decision. While
his case went up and down, Fred dealt with
uncertainty. In
a letter to Besig, he
complained, “Right now, I don’t even know what it
feels like to have a
home. I
feel like an orphan or
something.” The
government began rethinking its decision to exclude
all
citizens of Japanese ancestry from the military. The
War Relocation Authority
asked each affected person to fill out a
questionnaire.
Among the questions asked were, “Are you
willing to serve in the armed forces of the US on
combat duty, wherever
ordered?” and “Will you swear allegiance to the
United States and…forswear any
form of allegiance or obedience to the Japanese
emperor?” Fred
answered both of those questions with
“Yes”—and then added an exclamation point for
emphasis. When
the questionnaires were reviewed, 9% answered “no”
to
the question about their unqualified loyalty.
But many of those were probably confused by
the question, thinking that
if they “foreswore” their allegiance to the emperor,
that meant they had some
loyalty to begin with.
Nonetheless, most
of those who answered “no” to the question and were
sent to a high security
camp at Tule Lake, California. And, of those who
answered “yes” to both
questions, over 33,000 men ended up serving
segregated units in the military. And they
served the country well. The irony
is obvious. In
June 1943, Fred’s case was dealt a setback. The US
Supreme Court, in a decision involving
another challenge to war orders, upheld the curfew
order. While
the case was about the curfew and the
curfew only, the decision confirmed that Fred faced
an uphill battle in his
challenge to the exclusion order. Not
surprisingly, six months later, the Ninth Circuit
then upheld the exclusion
order in a decision that rested on the Supreme
Court’s decision in the curfew
case. Fred’s
lawyers filed a petition for certiorari with the
Supreme Court, asking that they review the Ninth
Circuit’s decision.
To the surprise of many, the Court granted
the petition. When
told his case was
heading to the Supreme Court, Fred was pleased.
“Nice going,” he told Besig. Fred’s
appellate attorney, Wayne Collins, wanted to make
the
Korematsu case about what he described as “the whole
outrageous program.”
Not just the exclusion order, but the system
that led to what Collins called “imprisonment
without cause, without
justification and without trial in defiance of the
very letter and spirit of
the Constitution.”
In his brief, he
attacked General DeWitt’s report that the government
relied on to support the
exclusion and removal program. DeWitt
said that persons of Japanese ancestry were “a
large, unassimilated, tightly
knit racial group” that was “bound to the enemy by
strong ties of race and
culture.” DeWitt
called them “a menace”
along our frontier “which had to be dealt with.” He
suggested that some Japanese-Americans had
been engaged in “illegal signaling” along the West
Coast to potentially aid submarine
attacks. Collins
argued that DeWitt’s
report was not evidence-based. It was
all prejudice, stereotyping, and speculation. While
the date for oral argument approached, Fred headed
east. In
October 1944, he moved to the
boom town of Detroit.
He got a job with
a company that made doors and called the people he
met “quite friendly.” On
October 11, the nine justices of the Supreme Court
took
their seats. Chief
Justice Harlan Fiske
Stone called the case of Korematsu versus the United
States. Collins split
argument time for Fred with an attorney from a
Washington DC firm chosen by the
national ACLU.
Solicitor General Charles
Fahy argued the government’s case. Fahy
argued that the truth of General DeWitt’s report on
the
dangers presented by persons of Japanese ancestry
was not the issue.
Only the question of DeWitt’s good faith and
honest belief that they posed a danger.
He also argued that the Court should focus
only on the exclusion order
and not address the issue of the constitutionality
of detention and
confinement. Moreover,
he said, if they
did look at the detention issue they should
understand, “These persons were not
prisoners. They
were not in
concentration camps.” When
asked about the indefinite confinement by Justice
Wiley
Rutledge, Fahy expressed “regret” at the time it was
taking to sort the loyal
from the disloyal detainees. Then he
said, “It seems to me that those who have been
injured, as many have, should be
asked to view the situation along with the great
injuries, losses, sufferings,
and hardships of millions of our people in the fight
of this nation for its
life.” The
Supreme Court announced its decision on December 18,
1944. By
a vote of 6 to 3, the Court
upheld Fred Korematsu’s conviction.
Justice Hugo Black wrote the majority
opinion. He
was joined by Chief Justice Stone, and
Justices Rutledge, Stanley Reed, and William O.
Douglas. Douglas
would remain on the Court for another
three decades and would develop a reputation as the
Court’s greatest civil
libertarian. But
this day he
dissented. And
it would be a life-long
regret. Remarkably,
even while upholding Korematsu’s conviction, the
Court announced a new, tough test for laws that
burdened suspect
classifications such as racial groups.
The Court said it would begin to apply “the
most rigid scrutiny” to
these laws. It
would require that the
government show a compelling reason for making the
classification, and that
there was no less burdensome way of achieving its
objective. That’s
a really tough test.
One that has, for laws disadvantaging racial
minorities, only been met once. And that
in the case announcing the test. In
fact, the Court did not really apply the very test
it
said it was using.
It accepted the
government’s flimsy justification for the exclusion
law. Justice
Black wrote, “We cannot reject as
unfounded the judgment of the military authorities
and Congress that they were
disloyal members of the population.” And then the
Court offered as proof of the
danger the suspect results of the loyalty
questionnaire that was only given after the
population was incarcerated. The
Court said it would save for another day the
question of
the constitutionality of the incarceration itself. What day?
It was almost 1945 and there was no case in the
pipeline. Yet
the Court blithely said, “It will be time
enough to decide the serious constitutional issue
which petitioner seeks to
raise…” In
her fine book on the Korematsu case, Enduring Justice, Lorraine Bannai,
offered this take on the Court’s
sidestepping of the incarceration issue: “By its
silence and all the dancing it
did around the issue, it [gave] the judicial stamp
of approval to all the
government had done.’ In
summary, Justice Black wrote: “Korematsu was not
excluded
from the Military Area because of hostility to him
or his race.” Justices
Robert Jackson, Owen Roberts, and Frank Murphy
dissented. Justice
Jackson, who would
soon take a leave from the Court to become the chief
US prosecutor in the
Nuremberg trials, wrote, “Guilt is personal and not
inheritable.” Jackson
warned that the Court’s decision
would be “a far more subtle blow to liberty than the
promulgation of the order
itself.” But
it lie about, he wrote,
“like a loaded weapon for the hand of any authority
that can bring forth a
plausible claim of urgent need.” Justice
Roberts wrote, “This is a case of convicting a
citizen of punishment for not submitting to
imprisonment in a concentration
camp, based on his ancestry.” He
believed that in focusing solely on the question of
exclusion the court had
“shut its eyes to reality.” Justice
Murphy bluntly wrote that the “exclusion goes over
the very brink of constitutional power and falls
into the ugly abyss of
racism.” He
concluded that Korematsu’s
right to equal protection, freedom of movement, and
due process had all been
violated. Justice
Murphy called what had
happened to Korematsu as “one of the most sweeping
and complete deprivations of
constitutional rights in the history of this
nation.” And
all this, wrote Murphy, based on “largely
an accumulation of half-truths and insinuations.” He found
it significant that “not one person
of Japanese ancestry was accused or convicted of
espionage or sabotage after
Pearl Harbor while they were still free.”
Fred
got word of the Court’s decision in Detroit. He later
recalled, “I just couldn’t believe
it. It
just seemed like the bottom
dropped out. I
felt like, Am I an
American or not?” If
there was any good news that day it came from
another
decision the Supreme Court announced. In
the case of Ex
Parte Endo, the Court
ruled unanimously that it was unconstitutional for
the government to detain a
person of Japanese ancestry after they had made a
specific determination that
the person was a loyal citizen. Oh,
there was also good news the day before the Court’s
decision in Korematsu.
On that day, the
Roosevelt Administration announced that it was
revoking the exclusion
orders. Persons
of Japanese ancestry
could, in good order, return to their West Coast
homes. Some,
fearing hostility or having no home to
return to, stayed in camps until they were ordered
out. Fred
remained in Detroit throughout 1945. He met
Kathryn Pearson that year. She liked
Fred. And
her liked her.
They married the next year and honeymooned at
Niagara Falls.
In 2008, after their many
years of marriage, Kathryn said of Fred: “He wasn’t
perfect, nobody is, but he
was actually the best person I ever knew.” In
1949, Fred and Kathryn moved back to the Bay Area. Because of
Fred’s conviction, he was unable
to find work with a large company or the government. He worked
most of his career as a draftsman
for small companies.
The Korematsu’s had
two children, a girl and a boy. Fred
never told his children about his arrest and his big
case before the Supreme
Court. They
learned about their father’s
role in history in school. In
1983, Federal District Judge Marilyn Patel found
that the
government, forty years earlier, had relied on
“unsubstantiated facts,
distortion, and the representations of a military
officer whose views were
seriously infected by racism.” She
vacated Korematsu’s conviction. What she
could not do, of course, was overrule the Supreme
Court decision itself.
Only the Supreme Court could do that. Fred Korematsu might not have intended, in 1942, to fight for liberty. Mainly he just wanted to hang out with his girlfriend. But fight he did—in courts from coast to coast. |