Civil Liberties and the Japanese American Cases

• Author: Walter F. Murphy
• Published date: 01 March 1958
• DOI: 10.1177/106591295801100101
• Date: 01 March 1958
• Subject Matter: Articles

CIVIL LIBERTIES AND THE JAPANESE AMERICAN
CASES: A STUDY IN THE USES OF STARE DECISIS
WALTER F. MURPHY
The Brookings Institution
HE
UNHAPPY
STORY of the treatment of Americans of Japanese
t
descent during World War II has been told and retold.’ In early
JL 1942, pursuant to an Executive Order2 and a later Act of Congress,3
Lt. General J. L. DeWitt, Commanding General of the Western Defense
Command, imposed curfew restrictions on German and Italian aliens and
on all persons of Japanese ancestry. Shortly thereafter De~3’Jitt ordered the
exclusion of both alien Japanese and American citizens of Japanese descent
from zones which included most of the three West Coast states. After a
short experiment with a voluntary exodus, a compulsory system of evacua-
tion and detention in Relocation Camps was put into effect.
In 1943, the Supreme Court had its first opportunity to review this
military action. Gordon Hirabayashi, a senior at the University of Wash-
ington, had been convicted in a district court for failing to report for evacua-
tion and for disobeying the curfew order. He had been sentenced to three
months in prison on each count, but the sentences were allowed to run con-
currently.
The Supreme Court seized on this fact of concurrent sentences to rule
that if conviction could be sustained on one of the charges, it would be
unnecessary to test the validity of the other accusation. The Court then
considered the easier count, that of violating the curfew. In a narrowly
defined opinion Chief Justice Stone held that the military commander
might reasonably have concluded that a curfew had been needed, and
under emergency conditions such a mild device was a legitimate exercise of
the war power. The Chief Justice emphasized that nothing was decided
regarding the constitutionality of the evacuation program. &dquo;It is unneces-
sary to consider whether or to what extent such findings [of danger of
espionage and sabotage] would support orders differing from the curfew
order.&dquo; 4
1
The literature on this subject is vast. Among the better accounts are: Morton Grodzins,
Americans Betrayed: Politics and the Japanese Evacuation (Chicago: University of
Chicago Press, 1949); Jacobus ten Broek et al., Prejudice, War, and the Constitution
(Berkeley: University of California Press, 1954); Nanette Dembitz, "Racial Discrimin-
ation and the Military Judgment: The Supreme Court’s Korematsu and Endo Deci-
sions," 45 Col. L. Rev. 175 (1945); Eugene Rostow, "The Japanese American Cases—
A
Disaster," 54 Yale L. Rev. 489 (1945); and Harrop A. Freeman, "Genesis, Exodus,
and Leviticus—Genealogy, Evacuation, and Law," 28 Cornell L. Q. 414 (1943).
2
Exec. Order No. 9066, 7 Fed. Reg. 1407.
3
Pub. L. No. 503, 77th Cong., 2d Sess.; 56 Stat. 173; see also Exec. Order No. 9102, 7
Fed. Reg. 2165.
4
Hirabayashi v. United States, 320 U.S. 81, 105 (1943).

---

4
A
year later, the Court had a second occasion to review the judgment
of the West Coast Commander. In Korematsu. v. United States, the con-
stitutionality of the evacuation program was directly challenged. Fred
Korematsu, a native-born citizen of alien Japanese parents, had been con-
victed in a federal district court of remaining within the prohibited area
after the date set by General DeWitt for evacuation. The government had
not accused Korematsu of disloyalty: the only charge against him was dis-
obedience of the evacuation order. The trial court sentenced Korematsu to
five years in prison, but immediately placed him on parole. He was then
taken by the military authorities to an Assembly Center, and later to a
Relocation Camp at Topaz, Utah.
In argument before the Supreme Court, the Solicitor General was
embarrassed by the blatant racism of DeWitt’s various public statements
and even more so by the prevalence of strong racial overtones in the
General’s official report on the evacuation program.5 Nevertheless, the
government relied primarily on a claim of &dquo;military necessity.&dquo; While
admitting that other commanders might have made a different decision,
the Solicitor General contended that the evacuation was a &dquo;reasonable&dquo;
program under the circumstances.
Korematsu was represented by his own counsel, but the Japanese
American Citizens League entered the case and filed a massive brief attack-
ing the legality of the whole evacuation program. In two hundred heavily
documented pages the JACL brief vivisected every factual point the
government had tried to establish to buttress its claims of the existence of
a military necessity.
On December 18, 1944, as the Battle of the Bulge was beginning along
the Luxembourg border, while American troops were in the final stages of
resecuring the Philippines, and Mariana-based B-29’s were hammering
the Japanese home islands, the Supreme Court announced its decision. The
limited approach of the Chief Justice in Hirabayashi which had kept the
division among the justices to a minimum could not work again. The
Court split badly with five opinions being written, three of them in acid
dissent.
Justice Black delivered the opinion of the Court. He began by noting
that all legal restrictions which curtailed the civil rights of a single racial
group were immediately suspect and therefore must be subjected to the
closest scrutiny by the courts. This promise, however, was not to be ful-
filled. When the opinion ended eight pages later, Korematsu could look
in vain for any scrutiny, close or distant, of the reasons behind the evacua-
tion orders. The Court, without any substantial evidence other than the
5
U.S. Army, Western Defense Command and IVth Army, Final Report of Japanese
Evacuation from the West Coast 1942 (Washington: Government Printing Office,
1943), p. 34 and passim.

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5
word of the commanding general, accepted every contention of the
government.
Justice Black held that Congress and the President had authorized the
evacuation. Therefore, in light of the principles announced in Hirabayashi,
the Court could not conclude that exclusion was beyond the combined
war powers of the political branches of government. &dquo;The military authori-
ties, charged with the primary responsibility of defending our shores, con-
cluded that curfew provided inadequate protection and ordered exclusion.&dquo; 6
He added: &dquo;It was because we could not reject the finding of the military
authorities that it was impossible to bring about immediate segregation of
the disloyal from the loyal that we sustained the validity of the curfew
order.... In the instant case, temporary exclusion of the entire group was
rested by the military on the same ground.&dquo; 7 The Court could not hold
the military’s decision unfounded. Justice Black was...