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Awful Eight #4: They All Look Alike



In early 1942 the federal government began rounding up tens of thousands of people and systematically shipping them off to remote, desolate camps for an indefinite period of time. The camps were patrolled by armed guards and surrounded by barbed wire fences. Many of these unfortunates, given as little as ten days’ notice and allowed to bring only what they could carry, were forced to sell their homes and businesses for pennies on the dollar. About two thirds of them were American citizens.

Their crime? They looked like the guys who bombed Pearl Harbor.

Such was the fate of Japanese-Americans living on the West Coast when the Japanese attacked. Their “evacuation” was set in motion by Franklin Roosevelt’s now-infamous Executive Order 9066.

Not all of them went quietly or willingly, and one in particular refused to go at all.

Which leads us to Fred Korematsu, the twenty-three-year-old son of Japanese immigrants who ran a floral business near Oakland, CA.  After the U.S. entered the war Korematsu tried to enlist in the National Guard and Coast Guard but was refused because of his Japanese ancestry. He then trained as a welder and found work in the shipyards around Oakland.  He quickly rose to foreman but was abruptly fired by the union, again because of his Japanese ancestry.

By then Korematsu’s family had left their home and flower business and reported to the camps. He stayed behind and decided to take his chances. He changed his name to Clyde Sarah, had cosmetic surgery to widen his eyes and tried to pass himself off as Mexican-Hawaiian.

On May 3, 1942, General J.L. DeWitt, Commander of the Western Defense Command, issued Civilian Exclusion Order 34 which required “all persons of Japanese ancestry… both alien and non-alien” to report to a “civil control station” within two days. They were to carry linens, toiletries, extra clothing, silverware and “essential personal effects.” He cited a law Congress passed in March.

Korematsu planned to move to Las Vegas but he was arrested on May 30 while waiting for his girlfriend on a street corner in San Leandro, California. A local paper ran a headline “Jap Spy Arrested in San Leandro.”

While Korematsu was in federal prison ACLU lawyer Ernest Besig learned of his plight and paid his $5,000 bail. Immediately upon leaving the courthouse military authorities handcuffed him and took him to the Tanforan “Assembly Center” in San Bruno, CA where he lived in a horse stall for several months.

Unlike his colleagues Korematsu decided to challenge the internment order. “The internment was wrong,” he reasoned. “We didn’t do anything disloyal.”  He was convicted in District Court of failure to follow a military order and was sentenced to five years’ probation.  The Ninth Circuit Court denied his appeal, and the case headed to the Supreme Court.

The Case- Korematsu v United States (1944)

The majority opinion was written by Justice Hugo Black, a former Senator from Alabama and an FDR appointee. At a little over 2600 words it is a terse ruling, at least by the standards of the Court.

Black starts off his opinion admitting that Korematsu, “an American citizen of Japanese ancestry” was convicted for violating Civilian Exclusion Order 34.

He then notes that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect…. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

Here we see the first of many confounding contradictions.  If imprisoning a person because they are of Japanese ancestry is not racial antagonism, regardless of the ulterior reason, then one has to wonder what, in Black’s mind would constitute racial antagonism.

Whenever the Court rules on potentially denying basic liberties, Black wrote it should do so only after subjecting the case “to the most rigid scrutinies.” In legal parlance, Korematsu was decided under strict scrutiny, the toughest legal standard. In layman’s terms, strict scrutiny means it’s okay for the government to do something really awful if they have a really good excuse.  There are three standards a law must pass in order to be legal under strict scrutiny:

First, it must serve a compelling governmental interest. In this case, the interest, of course, was national security. On this point the Court appeared to be on solid ground; the nation had been suddenly thrust into war with Japan. The Court cited the “judgment of military authorities and Congress” that there were “disloyal members of that population.” (As it turns out the government lied to the Court, which we’ll discuss in a moment.) But in another juxtaposed contradiction the Court admitted Fred Korematsu was not a spy- that “no question was raised as to the person’s loyalty to the United States.”

Second, the law must be “narrowly tailored” to achieve that interest. Black justified the broad exclusion because “it was impossible to bring about an immediate segregation of the disloyal from the loyal.” So the broadest application of the law- rounding up everybody without due process or even probable cause- was justified on the basis of expediency.  Rather than tailoring the law narrowly, Black rationalized the opposite.

Third, the law must use the “least restrictive means” to achieve that interest. The Court cited Hirabayashi v United States from a year earlier where they upheld the legality of a curfew order. Again Black deferred to the judgment of military authorities, saying “nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety” could render the law legal. Again, where jurisprudence dictated the least restrictive means, the law under scrutiny allowed for de facto imprisonment, the most restrictive means.

Brown concluded “Korematsu was not excluded from the Military Area because of hostility to him or his race.” Instead, this exclusion was because “we are at war with the Japanese Empire… military authorities feared an invasion of our West Coast and… the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”

In other words, if the War Department believed there was a threat, the Court felt it was not their place to question them.

Justice Owen Roberts laid out his dissent in stark terms: “I dissent because I think the facts exhibit a clear violation of Constitution rights…it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry….” In a separate dissent Justice Frank Murphy stated the case “falls into the ugly abyss of racism…”, one of the first uses of the term in Court history.

Justice Robert Jackson offered a less hyperbolic dissent. A military order will only last for the duration of the military emergency, but “a judicial opinion(that) 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… has validated the principle of racial discrimination…”

His conclusion is still quoted today:

“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.”

The case was decided 6-3.


Based on a miscarriage of justice Korematsu would score higher on our list.  Fortunately its effect was relatively limited in scope (fortunate, that is, unless you were one of the internees) and duration, as the internees were all released by 1946.

So the implications were not as dire as other cases we’ve examined. Still, Korematsu has not been overturned.  As late as January 2014, the lawyers who defended Fred Korematsu in his second trial (more on that in a moment) urged the Solicitor General to use a similar case to overturn the Court’s ruling. It didn’t happen.

When asked about the case in February Justice Antonin Scalia said “you are kidding yourself if you think the same thing won’t happen again.” He cited a Latin phrase- Inter arma enim silent lege– In time of war, the laws fall silent.


With the Civil Liberties Act of 1988 America formally apologized and granted each citizen internee a reparation payment of $20,000 (the total cost was $1.2 billion).

Justice Hugo Black was, by most accounts, well-regarded and known for judicial restraint. As a Senator from Alabama he was a “thumping New Dealer”- exactly the kind of man FDR wanted on the Court, and was appointed in 1937. His appointment was not without controversy, as it was soon learned he had been a member of the KKK. His motivation for joining appeared to be political more than racial, as he decided he needed the Klan’s votes in order to win his first Senate race.

He voted against Griswold, believing there was no basis in the Constitution for a Right to Privacy, and for Wickard, because of his expansive view of legislative power. Years later, he voted for Brown v Board of Education and his desegregationist views were widely known by the Court.

All of which muddle the picture as to the roots of his decision-making. Perhaps we can best understand Brown’s motivations from his own words. Two decades after his decision, in a New York Times interview he said he would do “precisely the same thing today…. Had [Japan] attacked our shores, you’d have a large number of them fighting with the Japanese troops. And a lot of innocent Japanese-Americans would have been shot in the panic.”

He also said: “They all look alike to a person not a Jap.”

So there you have it.

And Fred Korematsu?

The decades immediately following the war were not kind to him. The Japanese-American community resented his court challenge; the Supreme Court gave a stamp of legitimacy to what had widely been understood was a miscarriage of justice. After his conviction he was “released” to a permanent camp in the Utah desert. He labored there for a year and a half until his qualifications as a welder enabled him to leave… on the condition he not return to California. So he went to Detroit instead. While there he met his future wife and they married shortly thereafter. They returned to San Leandro in 1949.

But Korematsu was a convicted felon, and obtaining employment was difficult. He found work as a draftsman, although he didn’t bother to apply to large companies or the government; they would not hire someone with a “disloyalty” conviction. He raised a family in relative obscurity through the sixties and seventies.

Then in 1982 he received a call from Peter Irons, a professor and historian who was researching internee cases at the National Archives. Irons had uncovered evidence that, quite simply, the government lied at the highest levels, including the Solicitor General. Irons learned that several government agents had testified or were willing to testify to the Court that Korematsu was not a spy. Further, they had no evidence of any collaboration with Japan from Japanese-Americans on the West Coast. (Hawaii was a different matter.) So the exculpatory evidence was there; if the Court looked for it, it did not look very hard.

A volunteer team of lawyers took up his case and filed suit in federal court. In 1983 the federal court granted a writ of corum nobis, basically an admission that Korematsu had been wrongly convicted and the court had committed a fundamental error.

And thus began his transformation to Civil Rights icon. In 1983 he received the Earl Warren Human Rights Award from the ACLU. In 1988 a street was named for him in San Jose, and a bronze relief of him can be found in front of the San Jose Federal Building. Several schools in the Bay Area are named after him. And in 1998 President Clinton awarded him the Presidential Medal of Freedom, the nation’s highest civilian honor.  Since 2010, California celebrates Fred Korematsu Day every January 30th.

Fred Korematsu died on March 5, 2005 at his daughter’s home in Marin County. He was 86.

Up next: Your Home Is the Government’s Castle

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