Does the exclusion of all persons of Japanese ancestry, including American citizens, from a West Coast military area during World War II, ordered by the military under Executive Order 9066 and enforced by Act of Congress, violate the Constitution?

Fred Korematsu, an American citizen of Japanese descent, remained in San Leandro, California, after May 9, 1942, despite Civilian Exclusion Order No. 34, issued by the Commanding General of the Western Command. The order directed all persons of Japanese ancestry to leave the designated Military Area. It rested on Executive Order No. 9066, issued after the United States entered the war with Japan, which authorized military commanders to prescribe military areas to protect against espionage and sabotage. An Act of Congress of March 21, 1942 made it a misdemeanor to enter, remain in, or leave a military area contrary to such orders. Korematsu knowingly and admittedly violated the order. No question was raised about his loyalty to the United States. A separate March 27, 1942 proclamation had barred persons of Japanese ancestry from leaving Military Area No. 1 until a future order permitted it, and subsequent orders required those excluded to report to assembly centers and then relocation centers. Korematsu was charged with remaining in the prohibited area on May 30, 1942.

Korematsu was charged by information in a federal district court with violating the Act of March 21, 1942 by remaining in the military area contrary to Exclusion Order No. 34. He was convicted. The Circuit Court of Appeals for the Ninth Circuit affirmed, 140 F.2d 289. The Supreme Court granted certiorari because of the importance of the constitutional question involved.

(Black, J.)

No. The exclusion order was within the war powers of Congress and the Executive, and the Court affirms the conviction.

Restrictions curtailing the civil rights of a single racial group are immediately suspect and must receive the most rigid scrutiny. Pressing public necessity may sometimes justify them; racial antagonism never can. Applying that scrutiny, the Court relies on Hirabayashi v. United States, 320 U.S. 81 (1943), which sustained the curfew order under the same Act of Congress and the same executive and military orders, all aimed at espionage and sabotage. Exclusion from a threatened area, though a far greater deprivation than curfew, has a close relationship to preventing espionage and sabotage.

The Court cannot reject the judgment of the military authorities and Congress that there were disloyal members of the Japanese-American population whose number and strength could not be quickly ascertained, and that the loyal and disloyal could not be immediately segregated. Exclusion of the whole group therefore rested on military necessity, not group punishment based on racial hostility. Subsequent investigations confirmed that some retained loyalties to Japan. The Court also rejects the claim that all danger of invasion had passed by May 1942 and judges the order as of the time it was made, without the benefit of hindsight. Hardships are part of war, and the power to protect must be commensurate with the threatened danger.

The Court rejects the argument that Korematsu faced contradictory orders (stay and leave): the March 27 order was expressly limited until a future order directed otherwise, and the May 3 order was that future order. The Court declines to decide the validity of the assembly and relocation center detention orders, since Korematsu was convicted only of remaining in the excluded area. Because those requirements are separate offenses with separate duties, the validity of the exclusion order does not depend on them. Whichever view is taken of whether evacuation and assembly center detention were inseparable, the order under which Korematsu was convicted was valid.

Concurrence (Frankfurter, J.) The order made it an offense for Korematsu to be found in Military Area No. 1 except within an established Assembly Center, and the orders are not contradictory. Hirabayashi sustains the military order. The war power is the power to wage war successfully, and its validity must be judged in the context of war; a military order that is an allowable judgment of war needs is not made unconstitutional because like action in peacetime would be. Finding the Constitution does not forbid the military measures does not mean approving what Congress and the Executive did; that is their business, not the Court's.

Dissent (Roberts, J.) The indisputable facts show a clear violation of constitutional rights. This is not a temporary exclusion like the Hirabayashi curfew, but the conviction of a loyal citizen for refusing to submit to imprisonment in a concentration camp based solely on ancestry, without inquiry into his loyalty. The Court erroneously divides what is single and indivisible. Korematsu faced two contradictory orders: Proclamation No. 4 forbade him to leave the area, and Exclusion Order No. 34 forbade him to remain unless he went to an Assembly Center. These were a cleverly devised trap to put him in a camp. (The majority answered that the March 27 order was limited until a future order, and the May 3 order was that future order, so the orders were not contradictory.) Punishing him under either order denies due process, and a citizen need not surrender his liberty to test an unconstitutional law. The conviction should be reversed.

Dissent (Murphy, J.) The exclusion goes over the very brink of constitutional power and falls into the abyss of racism. Military discretion is wide but has limits, and the test is whether the deprivation is reasonably related to a public danger that is immediate, imminent, and impending. The order is an obvious racial discrimination that denies equal protection and due process under the Fifth Amendment. No reasonable relation to such danger exists, because the order assumes all persons of Japanese ancestry may be disloyal. General DeWitt's Final Report relies on racial and sociological claims, not military judgment, and cites no reliable evidence of group disloyalty. Individuals of German and Italian ancestry received individual hearings, and there was time to hold them here; no person of Japanese ancestry was convicted of espionage or sabotage after Pearl Harbor. The majority answered that there was evidence of disloyalty on the part of some, the need for action was great, and time was short. Individual guilt is the only basis for deprivation of rights, and inferring group guilt mirrors the rationales of the tyrannies the nation opposes. This is a legalization of racism.

Dissent (Jackson, J.) Korematsu was convicted of an act that is a crime only because his parents were of Japanese birth, though guilt is personal and not inheritable. The orders at issue come from General DeWitt, not from Congress or the President. Courts cannot assess military necessity, as this case shows: the Court has no real evidence before it and must accept General DeWitt's unsworn, self-serving statement. Military commanders may take expedients that are very bad constitutional law, but the Court should not distort the Constitution to approve them. Judicial approval of the order is a more subtle blow to liberty than the order itself, because it validates racial discrimination in criminal procedure for all time, leaving the principle like a loaded weapon ready for the hand of any authority that claims an urgent need. Hirabayashi's limiting language is disregarded. A civil court cannot enforce an order that violates constitutional limitations even if it is a reasonable exercise of military authority. The judgment should be reversed.