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Joe Denton Professor Tara Kelly April 17, 2013 Writing 101: Borderlands The Dangers and Legal

Folly of Korematsu v. United States Decades after Korematsu v. United States1 was decided, Herbert Wenig would still argue that [y]ou should be able to take action like this if there is military reason and necessity as the basis for it,2 despite the cases polarizing historical controversy. Wenig, one of several attorneys representing the respondent in the Korematsu case within the chamber of the Supreme Court on October 11, 1944, took the same oath as one of the petitioners attorneys, Saburo Kido, swearing to uphold the Constitution, yet the two mens constitutional interpretations of the issue at hand could not have been more contradictory as either side prepared to present their oral argument before the Supreme Court Justices.3 The potential outcomes for Korematsu, which contested the constitutionality of relocating people of Japanese ancestry from a described West Coast military area,4 had the potential ramifications of either irreversibly hindering the authority of the United States government and concept of expanded war powers or ending the exclusion of over 100,000 Japanese Americans from their home region.5 About a year earlier, on June 21, 1943, the court answered a similar question in Hirabayashi v. United States, deciding that a curfew forcing persons of Japanese

Background: This case focused on President Roosevelts Executive Order 9066 and resulting congressional and military initiatives that called for the exclusion of citizens of Japanese ancestry from areas deemed critical to national defense and potentially vulnerable to espionage as a result of the bombing of Pearl Harbor and war with Japan. Fred Korematsu dissented from such authoritative actions, remaining in San Leandro, California, effectively violating Civilian Exclusion Order No. 34. Oyez, Inc, Korematsu v. United States (March 2013) 2 Amelia R. Fry and Miriam Feingold Stein, Japanese-American Relocation Reviewed: The Hirabayashi, Korematsu, and Endo Cases (interview between Stein and Wenig) (Regional Oral History Office, The Bancroft Library, University of California, Berkeley, April 2013) 3 Peter Irons, Justice At War (New York: Oxford University Press, 1983), 311. 4 Korematsu v. United States, 323 U.S. 214 (1944). 5 Bernard Ryan, Jr. Ex Parte Endo Trial: 1944, Great American Trials (2002), 417-419.

ancestry within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m.6 did not violate the Fifth Amendment7 because the government has the power to wage war successfully8 by issuing protective measure[s]9 based on the logic that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.10 This decision would pave the way for Korematsu, which upheld Executive Order 9066 in addition to related congressional acts and military orders. The court ultimately placed more weight on the strictly perceived need to protect the United States against Japanese American espionage than the Fifth Amendment rights of this minority group. Ironically, the same day, December 18, 1944, the Supreme Court released their decision for Ex Parte Endo11 granting the petitioner, American native Mitsuye Endo, freedom from internment on the basis of her proven loyalty to the United States.12 Compared to Korematsu, Endo follows a more statutory basis and brings to question the specific detainment of a loyal citizen instead of the broad question of whether or not the government can relocate a certain group of people. Still, this distinction fails to provide creditable rational behind Korematsu. The Korematsu decision, a natural progression of the Hirabayashi decision, justifies the relocation of Japanese Americans with unfounded evidence, unprecedentedly narrows the Fifth Amendments scope while singling out a single nationality, and creates numerous legal and logical contradictions in light of the Endo opinion.
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Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943). Constitutional text: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Constitution, amend. 5 8 Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943). 9 Idem. 10 Idem. 11 Definition: Ex parte: on behalf of W.J. Stewart & Robert Burgess, Collins: Dictionary of Law (Glasgow, Great Britain: HarperCollins Publishers, 1996), 163. 12 Bernard Ryan, Jr. Ex Parte Endo Trial: 1944

Hirabayashi, as a preliminary step to Korematsu, should not be an excuse to constitutionally defend relocation because of the slippery slope that such logic could lead to in addition to the already questionable legal judgment within the Hirabayashi decision. Justice Jackson most eloquently describes the slippery slope effect that binds the court in his Korematsu dissent. Because we said that these citizens could be made to stay in their homes during the hours of dark [in Hirabayashi], it is said we must require them to leave home entirely, and if that, we are told they may also be taken into custody for deportation, and if that, it is argued, they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.13 This famous section of Jacksons dissent is often quoted in writings surrounding Korematsu and for good reason. Hirabayashi, while legally dangerous in forcing Japanese Americans into solitude, even if confined in their homes, without due process, still takes a substantially softer approach than the Korematsu majority opinion. Hirabayashi concludes, in the final section, that: Their status as citizens, though subject to requirements of national security and military necessity, should at all times be accorded the fullest consideration and respect. When the danger is past, the restrictions imposed on them should be promptly removed and their freedom of action fully restored.14 This language certainly contrasts with the closing sentence of Korematsu, reading [w]e cannot by availing ourselves of the calm perspective of hindsight now say that, at this time, these actions were unjustified.15 Jacksons frustration now becomes clear. A central point in the Hirabayashi case is the presence of danger. Justice Black acknowledges that hindsight has allowed for a clearer image that shows such a perceived danger was probably never an actual reality, yet by acknowledging the existence of such a danger within Hirabayashi, even in its lighter context of curfews instead of complete relocation and internment, there is a snowball
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Korematsu v. United States, 323 U.S. 214 (1944). Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943). 15 Korematsu v. United States, 323 U.S. 214 (1944).

effect that makes the majority opinion in Korematsu seem easier than the alternative. Furthermore, material analysis of evidence was probably less important to justices when dealing with Hirabayashi considering the less severe ramifications of the decision and in a time closer to Pearl Harbor, yet this logic would follow into Korematsu. Without Hirabayashi, the Korematsu decision could have unfolded completely differently. The evidence provided by the respondent, the United States, fails to be grounded in fact and is tainted by clear bias, which is essential to weigh based upon the reasonableness16 test the Supreme Court uses in evaluating war powers cases, despite the majoritys opposing view that evaluation of material evidence need not be important in pertaining to the constitutional issue at hand. Justice Murphy writes in his Korematsu dissent: [T]his 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 Generals Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent 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 condemnation of all person of Japanese descent, however, no reliable evidence is cited17 The lack of basis for exclusion is clear based on Murphys evaluation. This is important because in order to deprive one of a constitutional right such a deprivation must be reasonably related to a public danger that is so immediate, imminent, and impending as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate danger.18 In order to evaluate if such a danger fits this test, the facts must be accurate and impartial. Such a presentation is essential to weighing the legitimacy and urgency of a threat in relation to the

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Reasonableness is being used in the sense reasonably related to a public danger standard that is further addressed later. 17 Korematsu v. United States, 323 U.S. 214 (1944). 18 Idem.

threatening peoples potentially deprivable constitutional right. Reasonableness can never be determined without a factual basis. The Korematsu decision was unprecedented in that no previous Supreme Court case specifically targeted a single ancestral group. From John Adams Alien and Sedition Acts to Abraham Lincolns suspension of habeas corpus to the more modern Hamdi v. Rumsfeld,19 no other executive order, congressional act, or military order has had as targeted a goal as those related to Japanese American internment.20 The goal is not to simply catch rogue insurgents, spies, or even communists, but instead to remove and detain a very specific ethnicity from Washington State to northern Arizona.21 Justice Murphy poignantly notes [s]uch exclusion goes over the very brink of constitutional power, and falls into the ugly abyss of racism.22 The same protocol for prosecuting insurgents of other nationalities during World War II, such as Italian and German, would have been more appropriate individuals with ethnicities of nations opposing the Ally Forces, other than Japanese Americans, were allotted all freedoms of other citizens until individual probable cause of sabotage or some degree of evidence questioning loyalty was brought forth against the perpetrators. The distinction between Korematsu as focusing on the initial perceived necessity of military action to remove the threat of Japanese Americans from the West Coast and Endo as the after-the-fact process of the judgment of an individuals loyalty status relative to such relocation and internment creates an uncomfortable, indefinite time of legal limbo in relation to the Fifth Amendment. The Endo decision implies that any loyal Japanese American could have returned

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Hamdi v. Rumsfeld is a case in which a United States citizen was denied habeas corpus rights after being found, armed, in a foreign combat zoned and detained as an enemy combatant in Guantanamo Bay by the United States government. 20 The Leonore Annenberg Institute for Civics, Civil Liberties in Wartime TIMELINE (April 2013) 21 Fred T. Korematsu Institute for Civil Rights and Education, korematsuinstitute.org (March 2013) 22 Korematsu v. United States, 323 U.S. 214 (1944).

from War Relocation Authority Centers to their home pending such loyalty could be proven, but this analysis lacks basis. Interned Japanese Americans who received [loyalty determination] clearance were deemed by the War Relocation Authority to be free of any taint or suspicion of disloyalty, but were nevertheless detained23 Even if it was true that loyal detainees, and almost all were loyal, could walk freely, such a reality would still create a constitutional conundrum in that there is no opportunity of relief between relocation and the potential filing of a writ of habeas corpus. This is never acknowledged in Endo. Endo approaches these controversial issues from a strictly statutory basis, never questioning the constitutionality of war provisions, but instead merely addressing their lack of applicability as the United States began to move into a time of peace.24 The majority opinion fails, in both cases, to understand the blanketing effect that the Fifth Amendment should have if Endo or Korematsu failed to present a public danger neither did the other thousands of Japanese Americans. Legal experts often contend that searching for flaws in past Supreme Court cases, especially one like Korematsu, is frivolous due to context specificity, especially when framed in a todays evolved understanding of the Constitution; however, the Korematsu decision still stands as constitutional precedent and should be understood to still potentially hinder fundamental Fifth Amendment rights.25 Also, Korematsu is important today considering the scrutiny the perceived threat of Japanese Americans has received from legal experts and other scholars. On a moral stage, Korematsu is [l]ike Lochner, Dredd Scott, and Plessy, it marks what we hope not to repeat26 When investigated, instead, with a more substantive analysis, author and lawyer Peter Irons, who formally questioned the ground of Korematsu via coram
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Nanette Dembitz, Racial Discrimination and the Military Judgment: The Supreme Courts Korematsu and Endo Decisions, Columbia Law Review, Vol. 45, No. 2 (March 1945), 211. 24 Ex Parte Mitsuye Endo, 323 U.S. 283 (1944) 25 Patrick O. Gudridge, Endo? Harvard Law Review, Vol. 116, No. 7 (May 2003), 1937. 26 Ibid. 1934.

nobis27 effort, discovered that the loaded weapons that Justice Jackson warned about in his Korematsu dissent were really just smoking guns of legal misconduct and purely fabrication.28 Still other scholars argue that [d]espite Korematsus notoriety the Justices who decided Korematsu perceived that case differently than many modern observers do and should not be held to as strict standard as they would be held to today.29 Also, the record of World War II, compared to previous conflicts, was unprecedented30 and Justice Black supporters believe he made the best of this difficult job.31 While it is easier to point fingers with nearly an additional seventy years of American and constitutional history than these justices were provided, Korematsu is rightfully examined critically due to its failure as viable legal standard and the lasting, disgraceful tarnish it left on American history.

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coram nobis: In civil actions, a petition for a writ of coram nobis was addressed to the court in which the judgment was made, unlike an appeal, which is made to a superior court. The petition asserted that the court had made an erroneous judgment due to the defendant's excusable failure to make a valid defense. West's Encyclopedia of American Law, edition 2. S.v. "Coram Nobis." (April 2013) 28 Peter Irons, A Peoples History of the Supreme Court, (New York: Penguin Books, 2006), 362. 29 Craig Green, Ending the Korematsu Era: An Early View from the War on Terror Cases, Northwestern University Law Review, Vol. 105, No. 3 (2011), 993. 30 Gerald T. Dunne, Hugo Black and the Judicial Revolution (New York: Simon and Schuster, 1977), 215. 31 Ibid. 212.