The Korematsu Case - Have We Learned Nothing?

Historical Deep Dive - Korematsu v. United States - The Supreme Court Decision We Want to Forget - But Have We Learned Anything?

By: Don Murray, Esq.

On February 19, 1942, in the aftermath of the attack on Pearl Harbor, President Franklin Roosevelt issued Executive Order 9066 (an order number likely to resonate with Star Wars fans).  Executive Order 9066 handed the War Department authority to create "military areas" in this country from which anyone, including American citizens could be excluded as the military saw fit.  Executive Order 9066 also allowed for the creation of places where any people displaced by the military would be housed and fed.  The War Department took this authority and used it.  Ultimately, on the authority of Executive Order 9066, all persons of Japanese ancestry (whether United States citizens, or not) were required to leave certain locations in order to be moved to "relocation camps."

For people who haven't heard of this, it really actually happened.  The United States of America operated "relocation camps" for United States citizens whose only known offense was their heritage, all on the premise that purely because of their heritage, these American citizens posed a military threat to our country.

A man named Fred Korematsu was an American citizen of Japanese heritage.  He did not want to relocate to a "relocation camp" for some unspecified amount of time.  He refused to obey the order to make himself available to the military for relocation.  He was caught, arrested, tried, and convicted of a crime.  He appealed.

His appeal found its way to the United States Supreme Court.

It is easy to imagine a Hollywood ending to this story. The case finds its way to the United States Supreme Court, where the great Bill of Rights, product of the minds of one of the greatest collections of political philosophers ever to be together in the same place at the same time, is defended by nine of our greatest legal minds.  These nine great legal minds, defenders of Due Process and Freedom, robed guardians against the tyranny of Government, come together as one and ultimately deliver a blistering rejection of Executive Order 9066 and all that it stood for.  Mr. Korematsu's conviction is overturned, and Executive Order 9066 takes its place in the ash heap of other failed efforts by an over reaching Government to encroach upon our hard won freedom.  It is a glorious moment of triumph and music soars as Mr. Korematsu is victorious, a symbol for the thousands of others simultaneously being released from the relocation camps.

Only, sadly, that isn't what happened at all.

Presented with an opportunity to strike a blow for freedom, The United States Supreme Court became complicit in a withering of Liberty.  On that day, the United States Supreme Court turned its back on the Constitution, and firmly took its place on the wrong side of history.  Click here to read the full text of the Korematsu decision.

Six justices combined to form a majority to find that Executive Order 9066 was consistent with our Constitution.  The justification for this was an argument that at its core suggested that military expediency required that the Court turn away from applying strict Constitutional standards to the matter.  

Fred Korematsu would remain a convicted criminal for refusing to be forcibly detained based upon the fact that he was of Japanese ancestry.  And the United States Supreme Court thus put its stamp of approval, indeed put the seal of the United States Constitution on the horror of "relocation camps" for United States Citizens.

Three Justices, Frank Murphy, Owen Roberts, and Robert Jackson dissented, and earned their place, at least where Korematsu was concerned, on the right side of history.  Justice Antonin Scalia once identified Jackson's dissenting opinion as the Supreme Court opinion he admired the most. 

The Korematsu decision is widely reviled as one of the very worst decisions in the United States Supreme Court's history.  Federal Court hearings held in the 1980's led to Mr. Korematsu's conviction being set aside, and President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom.

And yet, it is interesting to wonder, in light of current events, whether we have learned our lesson from the disaster of Korematsu.  The current administration made a foray of its own into its own version of "relocation camps" - this time relocation camps for children taken from parents when families cross the border illegally.  The names are changed, and the circumstances are different, but it seems to me to be Korematsu all over again.  Thinking about it clearly, it seems pretty clearly a terrible idea.  And yet, there it was all over again.  We did it.  We separated kids from parents.  And we relocated them to cages we built for the purpose.  Meet the new boss.  Same as the old boss.

The administration has suspended the practice, for now.  But I have to wonder, if the policy had found its way to the current United States Supreme Court on some recognizable Constitutional ground, would the current administration have had the nerve to cite Korematsu as precedent?  (Korematsu has NOT been overturned, and therefore, it is the law of the land at the moment.)  And if the current administration had argued it, given the Supreme Court's previous record, and despite the general lip service given to what a terrible decision Korematsu was, you have to wonder whether they would have upheld it.  It's easy to say, "of course not" but if you had asked me whether a policy to separate children from parents that involves essentially imprisoning the separated children could ever seriously be considered, let alone implemented with the support of people willing to enforce it, I would have said, "of course not".


Don Murray is one of the founding partners of the boutique Criminal Defense Law Firm Shalley and Murray, located in New York City.  Mr. Murray has more than 27 years experience defending people accused of crimes in New York.  Call or text 718-268-2171 to set up your free consultation with Mr. Murray.

donmurraynyc.gif