Dissent

The ruling of the court was 6-3 with 3 of the Justices dissenting.

Justice Roberts dissenting, “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night as was Hirabayashi v. United States, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.”( http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/korematsu.html)

Justice Murphy found the case brought to the court fall into racism. Continuing his dissent he further stated, “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 martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/korematsu.html)

Justice Jackson dissenting, ”Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he 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.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.”(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

Your Own Argument

During the Second World War, the United States was with Japan which ultimately made Germany and the axis powers to declare on the United States. The war with Japan caused the United States to become paranoid of sensitive information being in the hands of the enemy causing the President to give executive permission to the military to do what was necessary to prevent espionage and sabotage. Although the war was also with Germany, Italy and their allies, only hand full of Germans was being watched by the FBI which later was trialed and allowed to defend themselves. In the Japanese-American case, all American citizens with Japanese ancestry had to be evacuated from the west coast into internment camps without trial. “There was no evidence of disloyalty to the U.S. by the Japanese-Americans. Seditious Japanese – as well as Germans and Italians, were already known to the FBI. Questionable Germans were permitted to defend themselves and prove their loyalties, although several thousand were also incarcerated like the Japanese-Americans. The 112,000 Japanese-Americans, however, never had an opportunity to defend themselves; their property was confiscated and apologies and restitution only came in the 1980s under the presidency of Ronald Reagan.”( http://modern-us-history.suite101.com/article.cfm/japaneseamerican_internment_in_1942)

It wasn’t until 1983 when the conviction of Korematsu was on trial with Judge Marilyn H. Patel overturned his conviction which later in 1988 that federal law provided conpensation and apologies to the Japanese-American that been relocated. ”In light of that information, Judge Marilyn H. Patel of Federal District Court in San Francisco overturned Mr. Korematsu's conviction in November 1983. In 1988, federal law provided for payments and apologies to Japanese-Americans relocated in World War II.” (http://www.nytimes.com/2005/04/01/national/01korematsu.html)

Even after the turnover of his conviction, Korematsu still advocate civil rights even to those who are citizen of the United States and even challenged President Bush on his prison camps. “Indeed, the Korematsu case was cited as recently as April 2004. At issue before the Supreme Court was whether U.S. courts could review challenges to the incarceration of mostly Afghan prisoners held at Guantanamo Bay Naval Station in Cuba in the aftermath of the Sept. 11, 2001, terrorist attacks. Korematsu, then 84, filed a friend-of-the-court brief saying, "The extreme nature of the government's position is all too familiar." (http://seattletimes.nwsource.com/html/nationworld/2002226476_webkorematsuobit31.html)

Rule of Law

During war, that the military of United States Government may take whatever steps needed to protect the country from every possible espionage and sabotage to national-defense materials, premises and utilities even if that means going against/stripping the constitutional right that is given to each person.

Reasoning of the Court

The reasoning of the court that majority of the Justices were in concurring the fact that it was war time and the president has been given power to ensure a victory. Justice Frankfurter states, “The provisions of the Constitution which confer on the Congress and the President power to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.” (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/korematsu.html)

Military authorities also stated that just having a curfew was not sufficient enough to prevent espionage. The military went as far as removing anyone with Japanese ancestry from the west coast into camps. Stated from Justice Black opinion of the court, “Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.”(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

Decision of the Court

The decision of the Supreme Court was delivered by Justice Hugo Black on December 18, 1984 on the Korematsu vs United States case where Justice Black states, “Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared 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. . . ." (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/korematsu.html)

It was for the reason that it was impossible for the United States Military to determine who is loyal and disloyal quick enough that it was in responsibility of the military with the authorization of the president to move and isolate any American citizen with Japanese ancestry. “In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

Here, as in the Hirabayashi case, ". . . we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not 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, which demanded that prompt and adequate measures be taken to guard against it."

Like curfew, 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 judgment 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....” (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

Justice Murphy dissented, declaring, “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.” (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

Justice Jackson also dissented, stating, “A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should [323 U.S. 214, 244] enact such a criminal law, I should suppose this Court would refuse to enforce it.” (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

EOC - Week 10 - What do I think about the Supreme Court?

I think the Supreme Court is a necessary both only if the right people are in it. Who is it that determines who is right for the job? Should the United States of America allow someone who is highly religious views take a seat in the Supreme Court? Since the United States of America is suppose to have a separation between religion and state, why do we have laws that benefit people who marry when marriage in the old days was done for business benefits and the only reason they had a priest attend it is wish the married couple good luck in the name of god on the endeavors. So it brings up the question about the people being appointed to chief justice because they are perfect for the job or because Mr. President wants someone in his favor? Does the public are well aware of the cases that are brought on to the Supreme Court? The supreme court seems a little bit iffy when you got 9 old dudes (and dudettes) debating with each other about matters like what kind of legal grounds does pornography has.

However for the most part, it removes deciding power from the president so not one person has all the power and having nice chief justices should give variety of ideas and opinions which represent the people or at least majority of the public.

I wonder if there will be a period in the future where we would not need a supreme court. Imagine how that’ll be? Does the president have all of the deciding power? Or we are going to live in a stateless environment where people actually get along with each other and help one another. We can only hope people would live peaceful with each other! That is for sure.

Issues of the Case

Following the attack on Pearl Harbor by the Japanese, the U.S. has issued several military order and restrictions on anyone with Japanese ancestry. Because of such restrictions, some were bound going against authority.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General [323 U.S. 214, 216] of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari.(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were sub- [323 U.S. 214, 217] stantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared 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. ...”(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214)

One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.(http://www.tourolaw.edu/patch/Korematsu/)

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.(http://www.tourolaw.edu/patch/Korematsu/)