While the majority of Japanese Americans complied with the military orders as a means of demonstrating their loyalty to the United States, there were many equally patriotic individuals who decided to challenge the discriminatory orders on constitutional grounds. As a means of testing the orders in court, over 100 Japanese Americans deliberately violated one or more of the orders and invited arrest. But the government was apprehensive about a judicial review and declined to prosecute most of these violators.
Three Japanese Americans, who did not appear to have the backing of any Japanese American civic organization were selected by the government for prosecution. All three—Minoru Yasui, Gordon Hirabayashi and Fred Korematsu—were convicted in the Federal Courts for disobeying military orders and sentenced to prison terms under Public Law 77-503. The legal issues were slightly different in each case and after an appeal to the United States Court of Appeals their cases were ultimately heard by the Supreme Court.
A fourth case involving Mitsuye Endo, an American citizen also of Japanese ancestry, was also heard by the Supreme Court. In this case Miss Endo, interned in one of the Relocation Centers, filed a petition for a writ of habeas corpus, asking that she be released from the Center and her liberty restored.
In each case the government conceded that the individuals were loyal citizens who had committed no crime other than to challenge the validity of the military orders. The four Japanese Americans argued that the military orders were unconstitutional when applied to citizen civilians.
Regretfully, judges and even justices of the Supreme Court, were not immune from the prejudices of the times and the judicial system failed in its constitutional responsibility to protect citizens against abuses by the executive and legislative branches.
HIRABAYASHI v U.S.
320 U.S. 81 (1943)
320 U.S. 115
Gordon Hirabayashi, a senior at the University of Washington, and Minoru Yasui, a Portland, Oregon, attorney, both challenged the military evacuation orders.
Hirabayashi was arrested, convicted and jailed for violating the evacuation orders and the curfew. Yasui was also found guilty, fined $5,000, and sentenced to one year in jail for violating the curfew.
In refusing to obey the evacuation orders Hirabayashi wrote:
The violation of human personality is the violation of the most sacred thing which man owns. This order for the mass evacuation of all persons of Japanese descent denies them the right to live. It forces thousands of energetic, law-abiding individuals to exist in miserable psychological conditions and a horrible physical atmosphere . . . If I were to register and cooperate..I would be giving helpless consent to the denial of practically all of the things which give me incentive to live. I must maintain my Christian principles. I consider it my duty to maintain the democratic standards for which this nation lives. Therefore I must refuse this order of evacuation.
In its majority decision the Supreme Court, on June 21, 1943, stated that “because persons of Japanese ancestry have been faced with many restrictions while residing in the United States, they may have become more isolated from the rest of the population and more attached to Japan and Japanese institutions.
“The Executive Order permitted establishment of military areas for the purpose of protecting national defense resources from sabotage and espionage. The Act of Congress ratified the Executive Order. Both were an exercise of constitutional power to wage war. Once the Executive and Congress have the power, they also have the freedom to use their own judgment in determining what the threat is and how it can be resisted. A court should not decide whether the Executive and/or Congress did the right thing nor should a court substitute its own judgment for that of the Executive or Congress.
“Measures adopted by the Government may point out that a group of one nationality is more dangerous to the country’s safety than any other group. This is not entirely beyond the limits of the Constitution and should not be condemned just because racial differences are usually irrelevant.
“Appellant, however, insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment.
“Distinction between citizens solely because of their ancestry are hateful to a free people whose institution are founded upon equality. For that reason, discrimination based on race alone has often been considered a denial of equal protection. These considerations would be in effect here were it not for the fact that the danger of espionage and sabotage makes it necessary for the military authorities to look into every fact having to do with the loyalty of populations in the danger areas.”
In rendering its decision the Court asserted that the war power is the power to wage war successfully and that the government must have the widest latitude in defending itself. The curfew imposed according to the Chief Justice was a protective measure necessary to meet the threat of sabotage and espionage and that “residents having ethnic affiliations with an invading enemy may be of a greater source of danger than those of different ancestry.”
Justices Roberts and Murphy dissented with Murphy stating that distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging a war. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the land of their forefathers. Today, Murphy concluded, is the first time, so far as I am aware that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry.
In Minori Yasui’s case the Supreme Court upheld the military authority to enforce curfews upon citizens without a declaration of martial law.
Thus the Court avoided the risk of overruling the Government on an issue of War policy. But it weakened society’s control over military authority—one of the polarizing forces on which the organization of our society depends. And it solemnly accepted and gave the prestige of its support to dangerous racial myths about a minority group in arguments which can be applied to any other minority in our society.
KOREMATSU v U.S.
323 U.S. 214 (1944)
Perhaps, according to Bernard Schwartz, the greatest failure of American law during World War II may be illustrated by the case of Fred Toyosaburo Korematsu. As graphically described in 1944 by a member of the bench, his case is one that is unique in our system:
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.
Korematsu had been charged with failure to report for evacuation and detention.
Had Korematsu been of Italian, German or English ancestry, his act would not have been a crime. His presence in California was made a crime solely because his parents were of Japanese birth. The difference between innocence and crime, so far as he was concerned, resulted not from anything he did, said, or even thought, but only from his particular racial stock. For Korematsu was a victim of what a
article was to term “America’s Greatest Wartime Mistake,” namely, the evacuation of those of Japanese ancestry from the West Coast shortly after the Pearl Harbor attack.
In a 6-3 majority decision the Supreme Court, on December 18, 1944, rendered its opinion which affirmed the right of the military to move people about on the basis of race in time of war. The Court decided that one group of citizens may be singled out and expelled from their homes, and imprisoned for several years without trial based solely on ancestry. The Supreme Court refused to question military judgment or the validity of military orders applied to civilians without a declaration of martial law.
Hardships are part of war and war is a collection of hardships. All citizens whether they be in or out of uniform feel the impact of war. Citizenship has its responsibilities as well as its privileges, and in time of war, the burden is always heavier.
It is said that Korematsu has been imprisoned in a concentration camp solely because of his ancestry, without any evidence to show his loyalty or disloyalty towards the United States..First of all, we do not think it is justifiable to call them concentration camps, with all the ugly pictures that term brings to mind. Secondly, regardless of the true nature of the assembly and relocation centers, we are dealing specifically with nothing but the exclusion order. To bring in the issue of racial prejudice, without reference to the real military dangers which existed, merely confuses the issue.
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire . . . The military urgency of the situation required that all citizens of Japanese ancestry be segregated from the West Coast temporarily. Congress put their confidence in our military leaders and decided that they should have the power to carry out the necessary measures. There was evidence of disloyalty on the part of some so the military authorities felt that the need for action was great. The fact that we can look back and see things more calmly does not allow us to say that at the time these actions were unjustified.
In dissenting Justice Owen Roberts felt the facts presented exhibited a clear violation of Constitutional rights. It is he stated “not a case of keeping people off the streets at night, nor a case of temporary exclusion from an area for safety reasons . . . It is the case of convicting a citizen as a punishment to not going into imprisonment in a concentration camp. In addition, if a citizen were forced to obey two laws and obedience to one of them would violate the other, to punish him for violation of either law would be unfair. It would be to deny him due process of law.
“Distinctions between citizens solely because of their ancestry are hateful to a free people whose institutions are founded upon equality. For that reason, discrimination based on race alone has often been considered a denial of equal protection.”
Justice Frank Murphy, in his dissenting opinion, called the decision “a legalization of racism” while Justice Robert Jackson, also dissenting, deplored the validation of “the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need.”
To Justice Murphy “Racial discrimination in any form and in any degree has no justifiable part whatsoever in our democratic way of life. It is unattractive in any setting but is utterly revolting among free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.”
So wrote Judge Murphy, who in the strongest dissent in the Korematsu case, stated that the exclusion order applicable to “all persons of Japanese ancestry” seemed to him “an obvious racial discrimination” and thus a denial of equal protection, Murphy’s statement in essence that the equal protection guarantee is part of the due process assurance of the Fifth Amendment was reaffirmed in 1954 when in a companion case to Brown v Board of Education, Bolling v Sharpe. Chief Justice Earl Warren held public schools in the District of Columbia violative of the equal protection clause because of racial segregation. The same Earl Warren who used the anti Japanese feelings of West Coasters to help his political campaign for Governor of California during the war years.
EX PARTE ENDO
323 U.S. 283 (1944)
Although Mitsuye Endo cooperated with the military order she was detained against her will without charges. In July 1942 she sought a writ of habeas corpus which is supposed to be adjudged promptly. However her case was not heard for a full year by the Federal District Court which denied her petition. Her appeal to the Court of Appeals was not forwarded to the Supreme Court for another year.
On December 18, 1944, one day after the exclusion and detention orders had been rescinded, the Supreme Court granted Endo an unconditional release from confinement. But in doing so the Court stated that the original expulsion from the West Coast and the detention for three years without charges or trial were legitimate exercises of presidential and military power during an emergency.
The Court bypassed constitutional issues and only ruled that Executive Order 9066 did not authorize the indefinite detention of citizens who the government conceded were loyal, nor did it authorize the imposition of parole conditions on citizens once removed from the West Coast.
Although joining the majority decision Justice Frank Murphy was of the opinion “that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in Fred Toyosaburo Korematsu v United States, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people.”