On the contemporary meaning of Korematsu: "Liberty lies in the hearts of men and women".

• Author: Harris, David A.

1. INTRODUCTION

   In just a few years, seven decades will have passed since the United States Supreme Court decision in Korematsu v. United States, (1) one of the Court's most derided cases. (2) Many Americans, even American lawyers, (3) know little about the details of the Korematsu decision (4)--many simply consider it not just wrong but also dead. (5) Nevertheless, certain similarities between the World War II era and the current one have instigated a reconsideration of Korematsu in a new light.

   When the Court decided the case in 1944, the United States was at war with Japan, and with this came considerable suspicion of anyone who looked Japanese. Since 2001, America has faced another external threat--this time, from al Qaeda terrorists--and, once again, there is fear of those who resemble them or who come from the same ethnic or religious group. Thus, the principle of law Korematsu articulated no longer constitutes a relic of a past era; rather, it poses a set of live questions. Since Americans face a foreign threat from an identifiable group, can the government discriminate against that particular group, as it did in Korematsu? Can the government discriminate with no evidence of any particular wrongdoing by identifiable persons? Before the terrorist attacks of september 11, 2001 (9/11), these questions would have seemed unthinkable, but no longer. Now, many believe that the time has come to dust off Korematsu and apply its principles once again. (6) Contrary to widespread belief, Korematsu does not require a revival; it remains alive--it is "good law" in legal parlance. Nothing in American constitutional law would keep any branch of government from relying on Korematsu. (7)

   Despite this fact, many jurists and scholars believe that no court today would ever rely on Korematsu to sustain something as outrageous as another internment. (8) Looked at closely, however, the law does not support this view. Korematsu remains a "loaded weapon," just as Justice Robert Jackson predicted in his dissent. (9) Thus, if we are to avoid a repetition of this dark chapter in our history, something other than the law must come into play.

   This Article argues that, by looking not just at the law but also at how Americans view Korematsu today, we can see reasons for hope: if faced with another large-scale terrorist attack, U.S. institutions would not react the way they did in the early 1940s. Ironically, the basis for this assertion comes at least in part from the very damage that Korematsu caused and the lasting impact it had.

   Section II explores the meaning of Korematsu today, in the post-9/11 world, with particular attention to the question of whether an internment could happen again. Section III explains why the disaster of the internment now seems unlikely to recur, for reasons that do not spring primarily from the law.

2. THE MEANING OF KOREMATSU TODAY

   1. Korematsu: A Brief Synopsis

      In the months following the Japanese attack on Pearl Harbor, a series of executive (10) and military orders (11) and a federal statute (12) forced over 110,000 Japanese living in the western U.S. into internment camps, seventy thousand of them U.S. citizens. (13) A court convicted Fred Korematsu, an American of Japanese descent, of failing to obey the internment orders. (14) Mr. Korematsu argued on appeal that his conviction violated the Constitution. (15)

      The U.S. government justified the internment as a military necessity, based on the Final Report of Lieutenant General John L. DeWitt, the commander in charge. (16) The Final Report, General DeWitt's description and justification of the military aspects of the removal of the Japanese from the West Coast in 1942, became the linchpin of the government's argument, repeating its assertions in the government's Supreme Court brief. (17) With tens of thousands of Japanese on or near the West Coast, a group the Final Report called "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion," General DeWitt asserted that a considerable danger of espionage and sabotage existed. (18) Some Japanese, DeWitt stated, had actually used illegal radio and shore-to-ship signaling to aid Japanese forces. (19)

      In Korematsu, the Supreme Court declared that the internment did not violate the Constitution. (20) Justice Hugo Black, writing for the majority, said that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.... [and] courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." (21) Nevertheless, Justice Black wrote, the Court had no choice but to defer to the judgment of military authorities. (22) Dissenting Justices Roberts and Murphy decried the government's actions as racism. (23) In his dissent, Justice Jackson agreed but went further, explaining that the majority's opinion posed an even greater danger than the original mistake of the internment itself. (24) A military commander like General DeWitt, Jackson said, "may overstep the bounds of constitutionality, and it is an incident," a serious but single occurrence with no precedential value. (25) The Court's bestowal of its imprimatur would invite repetition, and perhaps enlargement, of the original error. (26) once the Court gave racial discrimination and the transplanting of American citizens its constitutional blessing, Jackson said, "[t]he principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." (27)

      Almost forty years later, new evidence concerning the internment began to emerge. During research for his landmark book Justice at War: The Story of the Japanese American Internment Cases, Professor Peter Irons uncovered previously secret internal government documents. (28) These materials demonstrated that the government's claim of military necessity rested on intentional lies. (29) Evidence in the government's possession in 1944, and known to General DeWitt and other high officials, flatly contradicted DeWitt's assertions of Japanese disloyalty in his Final Report. (30) The government's Supreme Court briefs in Korematsu were deliberately sanitized to keep from the justices any facts contradicting General DeWitt's fabrications. (31) Professor Irons calls this "a legal scandal without precedent in the history of American law" that included "a deliberate campaign to present tainted records to the Supreme Court." (32) A congressional commission created in 198033 reported that the internment occurred not because of military necessity but rather because of "race prejudice, war hysteria and a failure of political leadership." (34)

      With the new evidence and the work of the congressional commission as a backdrop, a federal court reviewed the case under a writ of coram nobis in 19 84.35 Under the writ, the court could only review errors of fact in the case, not legal errors. (36) Based on the evidence that "the government deliberately omitted relevant information and provided misleading information in papers before the court," the court granted the writ of coram nobis and vacated Mr. Korematsu s conviction. (37)

   2. Korematsu Is Dead

      More than sixty-five years after the Supreme Court's Korematsu decision and more than twenty-five years after the reversal of the original conviction, one might well ask what relevance the case has today. With the historical record corrected and the defendant vindicated, most commentators view Korematsu as a dead case. They see it as a historical curiosity, a relic of an era in which the country collectively lost its head to the toxic combination of war hysteria, xenophobia, and racism.

      For example, the eminent constitutional scholar Laurence Tribe of Harvard Law School wrote that the dissenting opinion of Justice Jackson, not the majority opinion of Justice Black, has "carried the day in the court of history." (38) The Commission on Wartime Relocation and Internment of Civilians went even further, stating in its report that the Supreme Court's Korematsu opinion "lies overruled" by history. (39) A multitude of scholars has said that no court would rely on Korematsu today to sustain similar action by the government. (40)

      More importantly, some members of the Supreme Court have weighed in on the issue. For example, Justice Antonin Scalia ranked Korematsu among the worst decisions that the Supreme Court ever made, comparing it to the universally despised Dred Scott case, which helped plunge the nation into the Civil War. (41) With the other justices opining about the case either in decisions or during their confirmation hearings, eight of the current justices of the Supreme Court have said that courts could not rely on the core principle of Korematsu today. (42)

      If all of this ignominy heaped on Korematsu does not convince one that the case has no life left in it, one must also consider the actions of Congress and the President. In 1988, Congress enacted a bill that gave redress to Japanese Americans who suffered through the internment camps. (43) This statute officially apologized to the Japanese--both those who held American citizenship at the time and those who did not--for the suffering they endured due to their removal from their homes and businesses and for their internment in camps. In the words of the law, "[f]or these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation." (44) The statute also created a fund out of which previously interned individuals could receive a payment of $20,000. (45) When President Reagan signed the bill on August 10, 1988, he "admit[ted] a wrong" and "reaffirm[ed] our commitment as a nation to equal justice under the law." (46)

      With that kind of reputation--as bad as...