Can the government constitutionally exclude all persons of Japanese ancestry from designated military areas during wartime based solely on their race?

Fred Korematsu, an American citizen of Japanese descent, was convicted in federal district court for remaining in San Leandro, California, a designated Military Area, in violation of Civilian Exclusion Order No. 34. The order, issued by the Commanding General of the Western Command on May 9, 1942, directed that all persons of Japanese ancestry be excluded from that area. No question was raised regarding Korematsu's loyalty to the United States. The exclusion order was one of several military orders based on Executive Order No. 9066, issued after the United States entered war with Japan, which declared that successful prosecution of the war required protection against espionage and sabotage. The military authorities concluded that curfew orders were inadequate protection and ordered complete exclusion of Japanese Americans from West Coast areas. Approximately 5,000 American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States, and several thousand requested repatriation to Japan, confirming the military's concerns about group loyalty.

Korematsu was prosecuted under an Act of Congress from March 21, 1942, which made it a misdemeanor to violate military area restrictions. He was convicted in the federal district court and sentenced to probation for five years, though he was immediately taken into military custody. The Circuit Court of Appeals for the Ninth Circuit affirmed his conviction. The Supreme Court granted certiorari due to the constitutional importance of the case.

(Black, J.)

Yes. The exclusion order was constitutional as a valid exercise of war powers during a time of military necessity. All legal restrictions that curtail the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny. However, pressing public necessity may sometimes justify such restrictions, while racial antagonism never can. The exclusion order was substantially based on Executive Order No. 9066 and was designed as protection against espionage and sabotage. In Hirabayashi v. United States, 320 U.S. 81, the Court sustained a conviction for violating a curfew order aimed at the same twin dangers. The military authorities, charged with defending the shores, concluded that curfew provided inadequate protection and ordered exclusion in accordance with Congressional authority. The judgment that exclusion of the entire group was necessary because of the presence of an unascertained number of disloyal members, most of whom were undoubtedly loyal, was not unfounded. It was impossible to bring about immediate segregation of the disloyal from the loyal, making temporary exclusion of the entire group a military imperative. This answers contentions that the exclusion constituted group punishment based on antagonism to those of Japanese origin. When under conditions of modern warfare shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. Compulsory exclusion of large groups of citizens from their homes is inconsistent with basic governmental institutions except under circumstances of direct emergency and peril. The Court addressed arguments about conflicting orders but found no contradictory commands that would create an impossible situation for Korematsu. The exclusion order was treated as separate from subsequent detention orders, and the Court declined to rule on the validity of detention in assembly or relocation centers, as Korematsu was convicted only for remaining in the prohibited area.

Concurrence (Frankfurter, J.) The provisions of the Constitution conferring war powers on Congress and the President are as much part of the Constitution as provisions for peacetime. The war power of the Government is "the power to wage war successfully," and the validity of action under war power must be judged wholly in the context of war. Military authorities are no more outside constitutional bounds than judges within their sphere. If a military order does not transcend appropriate means for conducting war, such action is as constitutional as authorized action by any other government agency within constitutional limits. Finding that the Constitution does not forbid these military measures does not carry approval of what Congress and the Executive did - that is their business, not the Court's.

Dissent (Roberts, J.) This case involves convicting a citizen as punishment for not submitting to imprisonment in a concentration camp based solely on ancestry, without evidence of disloyalty. Korematsu faced contradictory orders - one forbidding him to leave the military area and another forbidding him to remain. The only way to avoid arrest was to report to an Assembly Center and submit to military imprisonment. The Government erroneously divides what is single and indivisible, making it appear Korematsu violated a simple exclusion order when he actually faced an impossible choice between two conflicting laws. This constitutes a clear violation of constitutional rights through a cleverly devised trap to accomplish the real purpose of locking citizens in concentration camps.

Dissent (Murphy, J.) This exclusion of all persons of Japanese ancestry from the Pacific Coast on a plea of military necessity falls into "the ugly abyss of racism." The judicial test for depriving constitutional rights on military necessity requires that deprivation be reasonably related to a public danger that is "immediate, imminent, and impending." This racial discrimination lacks such reasonable relation to removing dangers of invasion, sabotage, and espionage. The exclusion relies on the erroneous assumption that all persons of Japanese ancestry have dangerous tendencies to aid the enemy. The military report reveals racial prejudice rather than military necessity, referring to Japanese Americans as "subversive," "an enemy race," and "potential enemies." No adequate reason exists for failing to treat Japanese Americans individually through investigations and hearings, as was done for German and Italian ancestry persons. This legalization of racism has no justifiable part in democratic life.

Dissent (Jackson, J.) Korematsu was convicted of a crime consisting merely of being present in his home state near where he was born, made criminal only because his parents were of Japanese birth. This attempts to make guilt inheritable based on racial stock, violating the fundamental assumption that guilt is personal. A military order may have authority as a military command while being bad constitutional law, but courts cannot be made to enforce orders violating constitutional limitations. The Court's judicial construction sustaining this order is a more subtle blow to liberty than the order itself, because it validates the principle of racial discrimination in criminal procedure for all time. Once this principle lies embedded in law, it becomes "a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need." Courts should not execute military expedients that have no place in law under the Constitution.