Korematsu v. UnitedStates (Black1944) – Japanese WWII interment

t Held that the interment of Japanese-Americans was justified by military necessity. This case was the first to set forth the “strict scrutiny” standard for laws that discriminate on the basis of race.

t Background. This was the last case in which a racial or ethnic classification survived strict scrutiny. Ironically, this was the first case in which race was explicitly referred to as a “suspect” criterion.

t Facts. This case involved a post-Pearl Harbor military order excluding all persons of Japanese ancestry from certain areas of the West Coast, and resulting in their effective imprisonment. The order was applied against citizens as well as non-citizens.

t Holding. SCt upheld the order, despite its suspect nature. It did so on the theory that there was a compelling need to prevent espionage and sabotage, and that there was no practical and sufficiently rapid way for the military to distinguish the loyal from the disloyal.

t Concurring Frankfurter. Actions may be legal when they occur during war time – even though they would be illegal during peace. A distinction needs to be made, but the USC must allow for the military to act like a military. “To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had actual participation in war.”

t Koppelman. The SCt did not seem to scrutinize the classification very strictly here. It accepted the assertion of military necessity without many questions. Should it have done more? Jackson’s dissent suggests that the SCt could never be competent to evaluate such a claim. If he is correct, when would strict scrutiny be appropriate? Korematsu should be an easy case – It HAS to be unconstitutional!! Jackson’s dissent is the best answer out of a batch of bad choices.

t Dissent:

n Murphy. Argued that the majority’s view relied on the “assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage.” Murphy argued the regulation here was obviously racist, and therefore that it is just as obviously constitutional. He contended that individualized loyalty hearings, at least for those persons who were American citizens, could have been held.

n Jackson.

(a) Observed that no attempt was made anywhere in the U.S. to exclude German or Italian aliens (thus suggesting that the order was based at least in part on racial prejudice, though Jacksondid not explicitly so charge).

(b) Said, let the military be the military. He would not uphold the order even if it is justified by military necessity. If Jacksonis right that the judiciary should not worry about military necessity, then is the SCt’s decision a good reason for the military to obey its order?

Date: 2015-01-02; view: 684