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MR. JUSTICE BLACK delivered the opinion
of the Court.
MR. JUSTICE FRANKFURTER,
concurring.
MR. JUSTICE ROBERTS, MR.
JUSTICE MURPHY, and MR. JUSTICE JACKSON,
dissenting.
MR. JUSTICE JACKSON, dissenting.
Korematsu was born on our soil, of parents
born in Japan. The Constitution makes him a citizen of the United
States by nativity and a citizen of California by residence. No
claim is made that he is not loyal to this country. There is no
suggestion that apart from the matter involved here he is not
law-abiding and well disposed. Korematsu, however, has been convicted
of an act not commonly a crime. It consists merely of being present
in the state whereof he is a citizen, near the place where he
was born, and where all his life he has lived.
Even more unusual is the series of military
orders which made this conduct a crime. They forbid such a one
to remain, and they also forbid him to leave. They were so drawn
that the only way Korematsu could avoid violation was to give
himself up to the military authority. This meant submission to
custody, examination, and transportation out of the territory,
to be followed by indeterminate confinement in detention camps.
A citizen's presence in the locality, however,
was made a crime only if his parents were of Japanese birth. Had
Korematsu been one of four -- the others being, say, a German
alien enemy, an Italian alien enemy, and a citizen of American-born
ancestors, convicted of treason but out on parole -- only Korematsu's
presence would have violated the order. The difference between
their innocence and his crime would result, not from anything
he did, said, or thought, different than they, but only in that
he was born of different racial stock.
Now, if any fundamental assumption underlies
our system, it is that guilt is personal and not inheritable.
Even if all of one's antecedents had been convicted of treason,
the Constitution forbids its penalties to be visited upon him,
for it provides that "no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the
person attainted." But here is an attempt to make an otherwise
innocent act a crime merely because this prisoner is the son of
parents as to whom he had no choice, and belongs to a race from
which there is no way to resign. If Congress in peace-time legislation
should enact such a criminal law, I should suppose this Court
would refuse to enforce it.
But the "law" which this prisoner
is convicted of disregarding is not found in an act of Congress,
but in a military order. Neither the Act of Congress nor the Executive
Order of the President, nor both together, would afford a basis
for this conviction. It rests on the orders of General DeWitt.
And it is said that if the military commander had reasonable military
grounds for promulgating the orders, they are constitutional and
become law, and the Court is required to enforce them. There are
several reasons why I cannot subscribe to this doctrine.
It would be impracticable and dangerous idealism
to expect or insist that each specific military command in an
area of probable operations will conform to conventional tests
of constitutionality. When an area is so beset that it must be
put under military control at all, the paramount consideration
is that its measures be successful, rather than legal. The armed
services must protect a society, not merely its Constitution.
The very essence of the military job is to marshal physical force,
to remove every obstacle to its effectiveness, to give it every
strategic advantage. Defense measures will not, and often should
not, be held within the limits that bind civil authority in peace.
No court can require such a commander in such circumstances to
act as a reasonable man; he may be unreasonably cautious and exacting.
Perhaps he should be. But a commander in temporarily focusing
the life of a community on defense is carrying out a military
program; he is not making law in the sense the courts know the
term. He issues orders, and they may have a certain authority
as military commands, although they may be very bad as constitutional
law.
But if we cannot confine military expedients
by the Constitution, neither would I distort the Constitution
to approve all that the military may deem expedient. That is what
the Court appears to be doing, whether consciously or not. I cannot
say, from any evidence before me, that the orders of General DeWitt
were not reasonably expedient military precautions, nor could
I say that they were. But even if they were permissible military
procedures, I deny that it follows that they are constitutional.
If, as the Court holds, it does follow, then we may as well say
that any military order will be constitutional and have done with
it.
The limitation under which courts always will
labor in examining the necessity for a military order are illustrated
by this case. How does the Court know that these orders have a
reasonable basis in necessity? No evidence whatever on that subject
has been taken by this or any other court. There is sharp controversy
as to the credibility of the DeWitt report. So the Court, having
no real evidence before it, has no choice but to accept General
DeWitt's own unsworn, self-serving statement, untested by any
cross-examination, that what he did was reasonable. And thus it
will always be when courts try to look into the reasonableness
of a military order.
In the very nature of things, military decisions
are not susceptible of intelligent judicial appraisal. They do
not pretend to rest on evidence, but are made on information that
often would not be admissible and on assumptions that could not
be proved. Information in support of an order could not be disclosed
to courts without danger that it would reach the enemy. Neither
can courts act on communications made in confidence. Hence courts
can never have any real alternative to accepting the mere declaration
of the authority that issued the order that it was reasonably
necessary from a military viewpoint.
Much is said of the danger to liberty from
the Army program for deporting and detaining these citizens of
Japanese extraction. But a judicial construction of the due process
clause that will sustain this order is a far more subtle blow
to liberty than the promulgation of the order itself. 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. All who observe the work of courts are familiar
with what Judge Cardozo described as "the tendency of a principle
to expand itself to the limit of its logic." 1
A military commander may overstep the bounds of constitutionality,
and it is an incident. But if we review and approve, that passing
incident becomes the doctrine of the Constitution. There it has
a generative power of its own, and all that it creates will be
in its own image. Nothing better illustrates this danger than
does the Court's opinion in this case.
It argues that we are bound to uphold the conviction
of Korematsu because we upheld one in Hirabayashi v. United States,
320 U.S. 81, when we sustained these orders in so far as they
applied a curfew requirement to a citizen of Japanese ancestry.
I think we should learn something from that experience.
In that case we were urged to consider only
the curfew feature, that being all that technically was involved,
because it was the only count necessary to sustain Hirabayashi's
conviction and sentence. We yielded, and the Chief Justice guarded
the opinion as carefully as language will do. He said: "Our
investigation here does not go beyond the inquiry whether, in
the light of all the relevant circumstances preceding and attending
their promulgation, the challenged orders and statute afforded
a reasonable basis for the action taken in imposing the curfew."
320 U.S. at 101. "We decide only the issue as we have defined
it -- we decide only that the curfew order as applied, and at
the time it was applied, was within the boundaries of the war
power." 320 U.S. at 102. And again: "It is unnecessary
to consider whether or to what extent such findings would support
orders differing from the curfew order." 320 U.S. at 105.
(Italics supplied.) However, in spite of our limiting words we
did validate a discrimination on the basis of ancestry for mild
and temporary deprivation of liberty. Now the principle of racial
discrimination is pushed from support of mild measures to very
harsh ones, and from temporary deprivations to indeterminate ones.
And the precedent which it is said requires us to do so is Hirabayashi.
The Court is now saying that in Hirabayashi we did decide the
very things we there said we were not deciding. Because we said
that these citizens could be made to stay in their homes during
the hours of dark, it is said we must require them to leave home
entirely; and if that, we are told they may also be taken into
custody for deportation; and if that, it is argued they may also
be held for some undetermined time in detention camps. How far
the principle of this case would be extended before plausible
reasons would play out, I do not know.
I should hold that a civil court cannot be
made to enforce an order which violates constitutional limitations
even if it is a reasonable exercise of military authority. The
courts can exercise only the judicial power, can apply only law,
and must abide by the Constitution, or they cease to be civil
courts and become instruments of military policy.
Of course the existence of a military power
resting on force, so vagrant, so centralized, so necessarily heedless
of the individual, is an inherent threat to liberty. But I would
not lead people to rely on this Court for a review that seems
to me wholly delusive. The military reasonableness of these orders
can only be determined by military superiors. If the people ever
let command of the war power fall into irresponsible and unscrupulous
hands, the courts wield no power equal to its restraint. The chief
restraint upon those who command the physical forces of the country,
in the future as in the past, must be their responsibility to
the political judgments of their contemporaries and to the moral
judgments of history.
My duties as a justice as I see them do not
require me to make a military judgment as to whether General DeWitt's
evacuation and detention program was a reasonable military necessity.
I do not suggest that the courts should have attempted to interfere
with the Army in carrying out its task. But I do not think they
may be asked to execute a military expedient that has no place
in law under the Constitution. I would reverse the judgment and
discharge the prisoner.
---- Begin EndNotes ----
1 Nature
of the Judicial Process, p. 51.
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