Chapter 2: Korematsu revisited


Whereof one cannot speak, thereof one cannot stay silent (Davoine / Gaudilliére).[1]

In 1944, the Supreme Court of the US (SCOTUS) ruled by a 6-3 decision in the case of Fred Korematsu v. United States (323 U.S. 214) that the Executive Order 9066 (The White House, 1942) signed two years before by Franklin Delano Roosevelt, the 32nd President of the nation, was constitutional. The Order had cleared the way for American citizens with dual nationality from countries of concern to be banned from areas deemed critical to national security and to be interned in government-run concentration camps across the US. These countries of concern were Germany, Italy, and Japan; the designated critical areas stretched from Washington to the south of Arizona.

Tens of thousands of dual-nationality American citizens and LPRs were interned as a result of the implementation of Executive Order 9066. Some people were held for brief time periods; others were held for several years after the end of World War II (WWII). Fred Korematsu, an American of Japanese ancestry, had been convicted for refusing to obey the military order to leave his home and report to the ‘relocation camp’ upon implementation of the order. This conviction was upheld at the time. 

In reaching its decision in Fred Korematzu v. United States (323 U.S. 214), the SCOTUS had accepted the argument raised by the military that loyalty during wartime of certain American citizens with dual nationality did not reside with the US, but with their country of foreign ancestry. They reached this decision despite no evidence of fifth column activities having been found for the above-mentioned group of American citizens in either the Munson[2] report commissioned earlier by President Roosevelt or the Ringle[3] report commissioned by the Chief of Naval Operations. The Court justified its decision by declaring that the security concerns of the nation outweighed the promise of equal civil rights that had been enshrined in the US Constitution.

Justice Hugo Black, writing for the majority, declared that although “all legal restrictions that curtail the civil rights of a single racial group are immediately suspect” (ibid.), not all such restrictions are always unconstitutional. He added that “Pressing public necessity may sometimes justify the existence of such restrictions” (ibid.). In a famous dissent, however, Justice Robert Jackson wrote that “the Court for all of time has validated the principle of racial discrimination . . . 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” (ibid.).

The decision of the SCOTUS in Fred Korematsu v. United States has never been overturned in an explicit manner, even though a Congressional report titled Personal Justice Denied contained within it a declaration that the decision had been “a grave injustice . . . [that became] overruled in the court of history” (Commission on Wartime Relocation and Internment of Civilians, 1983). In addition, the Commission found that the decision to incarcerate American citizens with dual nationality from the countries of concern had been based on nothing more than “race prejudice, war hysteria, and a failure of political leadership” (ibid.). The Civil Liberties Act of 1988 (102 Stat. 904) contained both a formal apology to American citizens who had been interned under Executive Order 9066 – in particular, Japanese Americans – and provisions for monetary reparations.

In 1998, Fred Korematsu was awarded the Medal of Freedom by William Jefferson Clinton, the 42nd President of the nation. In no case during the period in question was any Japanese American citizen ever found guilty of having caused harm to the US.

[1] Davoine, F., and Gaudilliére, J. M. (2004). History beyond trauma.

[2] A 29-page Report on Japanese on the West Coast of the United States, written by Curtis B. Munson in 1940.

[3] Ringle Report on Japanese Interment, Serial No. 01742316, written by Lieutenant K. D. Ringle.