Korematsu v. United States


Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944), is considered to be the most important of the Japanese-American cases because it upheld the forced exclusion of loyal citizens. The case was decided by a 6 to 3 majority vote by the Justices to sustain Korematsu’s conviction for exclusion order violation. Justice Hugo Black authored the majority opinion. The dissenter in the decision among others was Justice Frank Murphy. If situations arise in which legal reasoning overrides the value of a narrative, it may be time for the decision makers to reformulate the law. The Justices in Korematsu, in making their decision had the authority to use the law as they did, but they also had the authority to go the other direction and strike down the wrongful actions of the government. The following opinions of the Court fully explain the facts of the case.

Majority Opinion: Justice Black

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Black then laid the legal groundwork for the case by reciting the Congressional Act, which Korematsu is accused of “knowingly and admittedly” violating. Korematsu is convicted of violating the Congressional Act sanctioned via Executive Order No. 9066, requiring ‘every possible protection against espionage and sabotage’ through national defense, and then applied via military Exclusion Order 34, requiring the exclusion of all those of Japanese ancestry from designated military zones (216).

Justice Black then revealed the case context by explaining the precedent on which Korematsu would rely. In the series of military orders, the first violation was the curfew order. The Supreme Court upheld this conviction in the preceding case of Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1944). Black explained that the both the Hirabayashi conviction and the Korematsu conviction are upheld by the same Act of Congress, aimed at protection against sabotage and espionage.

The Act was disputed as unconstitutional by the petitioner in Hirabayashi because it was beyond the war powers of the government, and that the curfew order was aimed at only citizens of Japanese ancestry, and therefore discriminatory (217). Justice Black contended that these arguments were seriously considered, but that the curfew order was upheld as necessary government prevention of sabotage and espionage threatened by Japanese attack (217).

Acknowledging that exclusion is a “far greater deprivation” than the curfew, Black remained supportive of the military authorities because the Court was unable to prove that exclusion of those of Japanese ancestry was beyond the war power “at the time” that it occurred (218). He claimed the exclusion “has a definite and close relationship” with the prevention of sabotage and espionage (218). The petitioner disputed the assumptions on which the Hirabayashi opinion rested and contended that by May, when the exclusion was ordered, there was no longer danger of invasion (218).

Black flatly rejected these contentions, reciting Hirabayashi, “ ‘…we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained’…most of whom we have no doubt were loyal to this country” (218-219). To the petitioner’s charge of group discrimination, Black answered that the Court sustained exclusion of the whole group because it could not reject the military’s contention that immediate separation of the loyal from disloyal was impossible (219).

The next portion of the majority opinion speaks to the petitioner’s and dissenters’ arguments against the government by giving an account and explanation of the pertinent dates that were in question as ill-fitting of the military’s assertions and the decision of the court. One of the counter arguments to the Majority opinion was that on May 30, 1942, when Korematsu was charged with remaining in the prohibited area, there were conflicting orders forbidding him both not to leave and to remain in the area (220). Justice Black refuted this argument by stating that the March 27, 1942 order stated that it was in effect until further direction from a subsequent order. The exclusion order was that subsequent order, which was given on May 3, 1942 and was to be enacted by May 9.

Citing more important information concerning the dates, Justice Black explicitly conceded that before the exclusion was to take place on May 9, an instruction to report to an assembly center upon evacuation was issued, “ ‘to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration’ ” (221). On May 19, 1942, before Korematsu was arrested, the military issued an order that “provided for detention of those of Japanese ancestry in assembly or relocation centers,” and so it was argued that the exclusion order could not be considered separately from the detention order (221). Justice Black refuted the notion that the Court must pass on the “whole detention program” when only the exclusion charge is before them (221).

The majority asserted that since Korematsu was not convicted of failing to report to or remain in an assembly center, that they could not determine the validity of the separate order (222). Speaking on the issue, Black stated that, “ It will be time enough to decide the serious constitutional issues which [the] petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him and we have its terms before us” (222).


Finally, the majority opinion ended with the issue of military deference. Due to the military’s fear of invasion, “they [the military] decided” that the situation demanded segregation of the citizens of Japanese ancestry, and Congress determined that “they should have the power to do this” (223). Ironically Black stated that, “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire…” (223). Black ended by asserting that from the “calm perspective of hindsight,” the Court cannot “say that at that time these actions were unjustified” (223).

Dissenting Opinion: Justice Murphy

Justice Murphy’s opinion can be referred to as the most scathing criticism of the three dissents, with his argument based on the charge of racism. First, Justice Murphy mentioned that the plea of military necessity for the exclusion came “in the absence of martial law,” and so should have been approved (233). He asserted that such exclusion goes beyond constitutional power into “the ugly abyss of racism” (233).

Justice Murphy acknowledged the need to consider the reasoning of Military authority during war, and stated that their judgments should “not be overruled lightly” by those who may not have access to all of the military intelligence (233). He believed, however that there should be limits where martial law has not been declared (233). He claimed that individuals could not be stripped of their rights by “military necessity that has neither substance nor support” (233). Murphy explicitly reserved the right of the judicial branch to judge the validity of military discretion.

Murphy cited the traditional judicial test of military discretion in depriving rights in various Court precedents: “Whether the deprivation is reasonably related to a public danger that is ‘so immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger” (234). He then pointed to the verbiage of the exclusion order having used the phrase ‘all person of Japanese ancestry, both alien and non-alien,’ and declared it insufficient to meet the immediate danger criteria, calling it “obvious racial discrimination” (234).

The order deprived those within its scope of their Fifth Amendment rights of equal protection (235). The order also deprived them of due process, because it excluded them without hearings and deprived them of being able to live and work where they choose and move about freely (235). Justice Murphy found no correlation between the exclusion and immediate danger, citing it as a “racial restriction” that brought about more “sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law” (235).

Justice Murphy conceded that there was a fear of invasion, sabotage and espionage at the time on the Pacific Coast, and that reasonable military action would have been appropriate; however, the “exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation” (235). The military reasons, he states, relied on the assumptions that all those of Japanese ancestry have “a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways” (235).

Justice Murphy’s opinion specifies the incongruent relationship of military necessity and immediate danger by reviewing the text of General DeWitt’s final report. He found that the report erroneously assumes “racial guilt” rather than military necessity. Murphy used as an example the words of DeWitt, who “refers to all individuals of Japanese descent as ‘subversive,’ as belonging to an ‘enemy race’ whose ‘racial strains are undiluted,’ and as constituting ‘over 112,000 potential enemies…at large today’ along the Pacific Coast” (236).

In the report, Murphy found no reliable evidence of disloyalty, using either general or menacing conduct of the Japanese aliens and citizens (236). Murphy claimed that “justification is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment” (236-237). He proceeded to cover and dispute the evidence provided by General DeWitt.

Justice Murphy’s opinion continued with more “unverified” information used in the General’s report to the Government. He methodically included footnotes behind each of DeWitt’s assertions, which cited studies that refuted assimilation claims, clarified reasons for dual citizenship and other claims, and also pointed out statements made that were based on pure speculation. Justice Murphy thereby disproved a “reasonable relation between the group characteristics of Japanese-Americans and the dangers of invasion, sabotage and espionage” (239).

Acknowledging the long-standing racial discrimination of the group, Justice Murphy chastised the military for having based its decision on racial and sociological judgments when “every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters” (240).

Justice Murphy then directed his opinion to a discussion of individual guilt, which is recognized by the United States, as opposed to group guilt. He stated that there are some disloyal individuals who are among those of Japanese ancestry, just as there are among those of German and Italian ancestry, but to cite examples of individual disloyalty as indicative of group disloyalty is discriminatory (240). This process, he continued, denies our legal system that is based on deprivation of rights for individual guilt (240).

There were no “adequate reasons” given by the military not to treat Japanese-Americans like German-Americans and Italian-Americans, and hold investigations and hearings on an individual basis in order to separate the loyal from the disloyal (241). Murphy cited the inconsistency between the claim that “ ‘time was of the essence,’ ” and the time period it took for the enactment of orders. The exclusion order was issued four months after Pearl Harbor, the last order was issued eight months later, and the “last of these ‘subversive’ persons was not actually removed until almost eleven months had elapsed” (241). “Deliberation” was more “of the essence than speed” (241).

Murphy emphasized the suspect representation of urgency when “conditions were not such as to warrant a declaration of martial law” (241). Murphy held that within this time period and in these circumstances it would have been possible to hold loyalty hearings for at least the 70,000 American citizens “especially when a large part of this number represented children and elderly men and women” (242). As evidence to this, Murphy cited the fact that during a six-month period the British set up hearing boards and summoned and examined 74,000 Germans and Austrians (Korematsu Footnote 16).

Finally, Justice Murphy ends his opinion in a declaration of dissent:


Discussion and Summary

The decision set one of the gravest precedents in history for the United States. Since then, efforts at redress have been made in the form of minimal monetary compensation, congressional acts allowing Asian immigrants to become naturalized citizens, and Presidential apologies. Fred Korematsu received the Presidential Medal of Freedom in January of 1998 for his courage in standing up to an unjust deprivation of liberty. The Korematsu case is a constant reminder to Americans that civil liberties for all citizens must be especially protected under adverse conditions, even in the face of public opposition and wrongful government action.

Korematsu vs. United States is one of the best examples of the Supreme Court deferring to military and government authority, even under conditions that the Court itself realizes are suspicious. The Majority Court purposely avoided ruling on the whole process of exclusion, evacuation, and internment set by the military and sanctioned by the government before Fred Korematsu’s arrest. The narrow parameters in which they ruled were highly questionable because Fred Korematsu along with the rest of the ethnic Japanese were mandated to abide by the whole process intended by the military and the government to be a program.

The Justice Black’s opinion make it clear that Majority do not intend to question the reasoning of the government and military, but only to suppose that they have one and therefore that the order is valid. The Majority leans on the context of war to legitimize their decision. The Justice Murphy’s opinion targets distinct and relative issues. He comments on the racial nature of the decision while focusing separately on the indivisibility of the exclusion order from the program, the lack of evidence to back the military’s report, and the danger of constitutionally endorsing the Majority decision.

The Korematsu Court, acting as final judge of the entire episode, allowed those with power to decide the prevailing value in its ruling. Their decision was not consistent with their duty. Justice Black, in the majority opinion, makes two strong references that reveal the Court’s intent not to question the values of those in power. In the first reference, they reject Korematsu’s arguments and rest on precedent by quoting Hirabayashi: “ ‘…we cannot reject as unfounded the judgement of the military authorities and of Congress that their were disloyal members of the population…’” (Korematsu 218). The Court never answers why they cannot reject the military’s assertions, which were weak and lacking in any concrete evidence.

In the second statement, Justice Black says on the Court’s behalf that, “we cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified” (Korematsu 224). Again, no plausible explanation was provided. The nature of trials is such that many times they are conducted in the calm perspective of hindsight and their duty and purpose is to determine whether or not there is justification for the actions of those involved. Justice Murphy dutifully reviewed the military findings, and in doing so found:


Public opinion and political pressure were the initiators of the government actions, however, government and military officials were the ones who made the decisions to act on those pressures. Worse yet, in the face of this influence and power, the 1944 Supreme Court displayed the same negative value of racism as the populace by shamefully failing in their duty to remain impartial and pass judgment based on the constitutionality of the individual’s conviction. From the perspective of the Majority of the 1944 Supreme Court, the issues involved in the Korematsu case were based purely on their own and the government’s motives. The Supreme Court Majority completely lacked consideration for the value of the Japanese person perspective in the United States.


Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944). Available at: laws.findlaw.com/us/323/214.html

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