Jamestown Post-Journal
September 25, 2002
Not everyone who might want to will be able to be at Chautauqua Institution tomorrow to hear from Fred Korematsu. He is the Japanese-American whose lawsuit against the United States resulted in the Supreme Court approval in 1944 of the confinement of Japanese-Americans in internment camps during World War II.
Our own Supreme Court Justice Robert H. Jackson disagreed strongly with the court and although his opinion was in the minority at the time, his dissenting opinion continues to be read today in law schools as a major definition of the rights of the individual versus the power of the government.
Mr. Korematsu, who has since been awarded the Presidential Medal of Freedom for his courage and tenacity in seeking justice for those sent to the internment camps, is honoring us with his visit because of the source of the invitation: the Robert H. Jackson Center. It seems appropriate to offer readers who cannot be at Chautauqua at least a shortened look at what Jackson wrote:
TOYOSABURO KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944)
Justice Robert H. Jackson, dissenting.
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 (323 U.S. 214, 243) 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. Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth.
... Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’
... I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.
... Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order (323 U.S. 214, 246) is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated 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 an urgent need.
... I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. (323 U.S. 214, 248) Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.
My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt’s evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.