parent nodes: Adarand Constructors v Pena | enemy combatant | Ex parte Endo | racial classification | war and individual liberties
Korematsu v US
Facts
FDR issues an executive order giving military commanders the power to prescribe "military areas" in the US from which "any and all persons" as the commanders determine may be excluded
US general excludes Japanese-Americans from the West Coast
Congress passes a law making the violation of an exclusion order a crime
Korematsu, a US citizen of Japanese ancestry, convicted under the law
Issue: Does the government have power to exclude US citizens of Japanese ancestry from the West Coast or other areas?
The Court, per Black, J, says yes.
Black argues that the government's acts must be upheld under [Hirabayashi v US], which upheld a curfew order imposed on Japanese-Americans living in the West Coast. As with Hirabayashi, argues Black, the Court cannot validly reject the judgment of the military authorities and of Congress that disloyal Japanese-Americans might constitute a "menace to the national defense and safety," and that exclusion of the entire group was the necessary remedy. While, obviously, some Japanese-Americans are still loyal to the US, investigation had "confirmed" that some were disloyal. Thus, Black refuses to second-guess the military's judgment about the necessity of exclusion (and, by implication, relocation).
Frankfurter, concurring, quotes the argument of [Hirabayashi v US] that Congressional war power is the power to "wage war successfully," so that the "validity of action under the war power must be judged wholly in the context of war," and not by comparison to its counterfactual validity in time of peace. Rather, argues Frankfurter, "within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs." And there is no reason, says Frankfurter, why Congress cannot criminalize the violation of such a valid military order.
Murphy, dissenting, argues that the order is motivated by racial animus, and thus denies the Japanese on the West Coast of equal protection as Amendment V guarantees. Murphy argues that the danger to the US is not so immediate, imminent, and impending as to justify preventing "ordinary constitutional processes" from being used here.
Here, foreshadowing the rational basis test, Murphy argues that the justification for relocation "do not bear a reasonable relation between the group characteristics of Japanese-Americans and the dangers of invasion, sabotage, and espionage." Rather, says Murphy, relocation is motivated by rumors, prejudices, and misinformation. The fact that a few individuals have been disloyal does not justify the relocation of the entire Japanese-American population.
Jackson, dissenting, agrees with Frankfurter that "the paramount consideration" of martial law is that "its measures be successful, rather than legal," and that the actions of military commanders are not amenable to "the limits that bind civil authority in peace." As a result, "if we cannot confine military expedients by the Constitution, neither (should we) distort the Constitution to approve all that the military may deem expedient."
Given the institutional incapacity of courts to reasonably review the military's actions in such circumstances, they are not "susceptible of intelligent judicial appraiisal." By interpreting the [Due Process Clause] to "rationalize()" supporting the military's actions, the Court here, says Jackson, has enacted a harmful precedent that will harm future liberty. And, says Jackson, the judicial power is bound to follow the dictates of the Constitution; it cannot "be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority." Otherwise, the courts are mere "instruments of military policy."
Thus, says Jackson, the "chief restriant" upon military power is the "political judgments" of the government and the "moral judgments of history," not the courts. As a result, argues Jackson, while the courts should not review the validity of the government's relocation, neither can they enforce the military's actions through the criminal law.