NOW Live from the Smithsonian Asian Pacific American Center

On December 7, 1941 the Imperial Japanese Navy attacked the United States at Pearl Harbor in Hawai’i. The next day, after President Franklin D. Roosevelt proclaimed the day of the attack as one “which will live in infamy,” the U.S. Congress formally declared war on Japan. Germany and Italy responded by declaring war on the United States and just over two years into the Second World War, nearly the entire globe was now engaged in what would become the bloodiest conflict in human history.

One consequence of Japan’s attack on the United States at Pearl Harbor was Executive Order 9066, which authorized the U.S. Secretary of War to designate certain “military zones” where the government had the power to exclude any individual or group deemed a possible threat to the United States’ war effort. Most of these military zones were large areas of the western United States, where many American citizens of Japanese descent resided. Though some were recent immigrants, other families had lived in America for generations.

Under the authority of Executive Order 9066, however, the decision was made to exclude all persons of Japanese descent, regardless of their status as citizens of the United States. Some Japanese-Americans were suspected of being spies, and a small number of Japanese immigrants even declared their allegiance to Japan and their desire to return. Yet the majority of internees were loyal American citizens.[i] Around 120,000 individuals of Japanese descent were held in internment camps during the war, along with 11,000 persons of German ancestry, 3,000 of Italian descent, and at least 81 Jewish refugees.[ii]

Fred Korematsu was a U.S.-born American of Japanese descent who refused to leave his home in San Leandro, California, arguing that internment violated the Fourteenth Amendment of the United States Constitution. Arrested and convicted – though his loyalty to the United States was never in question – Korematsu’s case was heard by the Supreme Court, where they eventually reached a decision on December 18, 1944. The court came to a 6-3 decision which upheld the constitutionality of Japanese internment. Justice Hugo Black wrote and delivered the majority opinion:

Each of the three dissenting Justices gave their own reasons, which offered different insights as to what the central issue of the case was. Justice Frank Murphy deplored the “ugly abyss of racism” and attempted to draw parallels to the Axis Powers with whom the United States were currently fighting. Justice Robert Jackson, on the other hand, offered a different view that focused on the troublesome legality of the decision which he feared would set a bad precedent:

“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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”[iv]

Subsequent Justices and scholars have offered their personal opinions that Japanese internment violated the Fifth Amendment of the United States Constitution, which prohibits the deprivation of “life liberty, or property without due process of law.” It remains to be debated whether the Fifth Amendment renders null and void Japanese internment and any similar future scenarios or if, as Jackson argued, the case of Korematsu v. United States provided just such “due process” as was necessary for its legality.

The ruling is still on the books, though in the short term it had little practical effect. On the very same day, the Supreme Court reached a unanimous decision on Ex parte Endo, ruling that the U.S. government could not continue to detain, in such situations as the Japanese internment camps, an individual that the government conceded was loyal to the United States. Less than three weeks later, on January 2, 1945, the exclusion order was rescinded.

Sources

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=323&invol=214

Conroy, Hilary and Harry Wray. Pearl Harbor Re-examined: Prologue to the Pacific war. University of Hawaii Press, 1990.