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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 MURPHY, dissenting.
This exclusion of "all persons of Japanese
ancestry, both alien and non-alien," from the Pacific Coast
area on a plea of military necessity in the absence of martial
law ought not to be approved. Such exclusion goes over "the
very brink of constitutional power" and falls into the ugly
abyss of racism.
In dealing with matters relating to the prosecution
and progress of a war, we must accord great respect and consideration
to the judgments of the military authorities who are on the scene
and who have full knowledge of the military facts. The scope of
their discretion must, as a matter of necessity and common sense,
be wide. And their judgments ought not to be overruled lightly
by those whose training and duties ill-equip them to deal intelligently
with matters so vital to the physical security of the nation.
At the same time, however, it is essential
that there be definite limits to military discretion, especially
where martial law has not been declared. Individuals must not
be left impoverished of their constitutional rights on a plea
of military necessity that has neither substance nor support.
Thus, like other claims conflicting with the asserted constitutional
rights of the individual, the military claim must subject itself
to the judicial process of having its reasonableness determined
and its conflicts with other interests reconciled. "What
are the allowable limits of military discretion, and whether or
not they have been overstepped in a particular case, are judicial
questions." Sterling v. Constantin, 287 U.S. 378, 401.
The judicial test of whether the Government,
on a plea of military necessity, can validly deprive an individual
of any of his constitutional rights is whether the deprivation
is reasonably related to a public danger that is so "immediate,
imminent, and impending" as not to admit of delay and not
to permit the intervention of ordinary constitutional processes
to alleviate the danger. United States v. Russell, 13 Wall. 623,
627-8; Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas,
91 U.S. 712, 716. Civilian Exclusion Order No. 34, banishing from
a prescribed area of the Pacific Coast "all persons of Japanese
ancestry, both alien and non-alien," clearly does not meet
that test. Being an obvious racial discrimination, the order deprives
all those within its scope of the equal protection of the laws
as guaranteed by the Fifth Amendment. It further deprives these
individuals of their constitutional rights to live and work where
they will, to establish a home where they choose and to move about
freely. In excommunicating them without benefit of hearings, this
order also deprives them of all their constitutional rights to
procedural due process. Yet no reasonable relation to an "immediate,
imminent, and impending" public danger is evident to support
this racial restriction which is one of the most sweeping and
complete deprivations of constitutional rights in the history
of this nation in the absence of martial law.
It must be conceded that the military and naval
situation in the spring of 1942 was such as to generate a very
real fear of invasion of the Pacific Coast, accompanied by fears
of sabotage and espionage in that area. The military command was
therefore justified in adopting all reasonable means necessary
to combat these dangers. In adjudging the military action taken
in light of the then apparent dangers, we must not erect too high
or too meticulous standards; it is necessary only that the action
have some reasonable relation to the removal of the dangers of
invasion, sabotage and espionage. But the exclusion, either temporarily
or permanently, of all persons with Japanese blood in their veins
has no such reasonable relation. And that relation is lacking
because the exclusion order necessarily must rely for its reasonableness
upon the assumption that all persons of Japanese ancestry may
have a dangerous tendency to commit sabotage and espionage and
to aid our Japanese enemy in other ways. It is difficult to believe
that reason, logic or experience could be marshalled in support
of such an assumption.
That this forced exclusion was the result in
good measure of this erroneous assumption of racial guilt rather
than bona fide military necessity is evidenced by the Commanding
General's Final Report on the evacuation from the Pacific Coast
area. 1 In it he refers to
all individuals of Japanese descent as "subversive,"
as belonging to "an enemy race" whose "racial strains
are undiluted," and as constituting "over 112,000 potential
enemies . . . at large today" along the Pacific Coast. 2
In support of this blanket condemnation of all persons of Japanese
descent, however, no reliable evidence is cited to show that such
individuals were generally disloyal, 3
or had generally so conducted themselves in this area as to constitute
a special menace to defense installations or war industries, or
had otherwise by their behavior furnished reasonable ground for
their exclusion as a group.
Justification for the exclusion is sought,
instead, mainly upon questionable racial and sociological grounds
not ordinarily within the realm of expert military judgment, supplemented
by certain semi-military conclusions drawn from an unwarranted
use of circumstantial evidence. Individuals of Japanese ancestry
are condemned because they are said to be "a large, unassimilated,
tightly knit racial group, bound to an enemy nation by strong
ties of race, culture, custom and religion." 4
They are claimed to be given to "emperor worshipping ceremonies"
5 and to "dual citizenship."
6 Japanese language schools
and allegedly pro-Japanese organizations are cited as evidence
of possible group disloyalty, 7
together with facts as to certain persons being educated and residing
at length in Japan. 8 It is
intimated that many of these individuals deliberately resided
"adjacent to strategic points," thus enabling them "to
carry into execution a tremendous program of sabotage on a mass
scale should any considerable number of them have been inclined
to do so." 9 The need
for protective custody is also asserted. The report refers without
identity to "numerous incidents of violence" as well
as to other admittedly unverified or cumulative incidents. From
this, plus certain other events not shown to have been connected
with the Japanese Americans, it is concluded that the "situation
was fraught with danger to the Japanese population itself"
and that the general public "was ready to take matters into
its own hands." 10 Finally,
it is intimated, though not directly charged or proved, that persons
of Japanese ancestry were responsible for three minor isolated
shellings and bombings of the Pacific Coast area, 11
as well as for unidentified radio transmissions and night signalling.
The main reasons relied upon by those responsible
for the forced evacuation, therefore, do not prove a reasonable
relation between the group characteristics of Japanese Americans
and the dangers of invasion, sabotage and espionage. The reasons
appear, instead, to be largely an accumulation of much of the
misinformation, half-truths and insinuations that for years have
been directed against Japanese Americans by people with racial
and economic prejudices -- the same people who have been among
the foremost advocates of the evacuation. 12
A military judgment based upon such racial and sociological considerations
is not entitled to the great weight ordinarily given the judgments
based upon strictly military considerations. Especially is this
so when every charge relative to race, religion, culture, geographical
location, and legal and economic status has been substantially
discredited by independent studies made by experts in these matters.
13
The military necessity which is essential to
the validity of the evacuation order thus resolves itself into
a few intimations that certain individuals actively aided the
enemy, from which it is inferred that the entire group of Japanese
Americans could not be trusted to be or remain loyal to the United
States. No one denies, of course, that there were some disloyal
persons of Japanese descent on the Pacific Coast who did all in
their power to aid their ancestral land. Similar disloyal activities
have been engaged in by many persons of German, Italian and even
more pioneer stock in our country. But to infer that examples
of individual disloyalty prove group disloyalty and justify discriminatory
action against the entire group is to deny that under our system
of law individual guilt is the sole basis for deprivation of rights.
Moreover, this inference, which is at the very heart of the evacuation
orders, has been used in support of the abhorrent and despicable
treatment of minority groups by the dictatorial tyrannies which
this nation is now pledged to destroy. To give constitutional
sanction to that inference in this case, however well-intentioned
may have been the military command on the Pacific Coast, is to
adopt one of the cruelest of the rationales used by our enemies
to destroy the dignity of the individual and to encourage and
open the door to discriminatory actions against other minority
groups in the passions of tomorrow.
No adequate reason is given for the failure
to treat these Japanese Americans on an individual basis by holding
investigations and hearings to separate the loyal from the disloyal,
as was done in the case of persons of German and Italian ancestry.
See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is
asserted merely that the loyalties of this group "were unknown
and time was of the essence." 14
Yet nearly four months elapsed after Pearl Harbor before the first
exclusion order was issued; nearly eight months went by until
the last order was issued; and the last of these "subversive"
persons was not actually removed until almost eleven months had
elapsed. Leisure and deliberation seem to have been more of the
essence than speed. And the fact that conditions were not such
as to warrant a declaration of martial law adds strength to the
belief that the factors of time and military necessity were not
as urgent as they have been represented to be.
Moreover, there was no adequate proof that
the Federal Bureau of Investigation and the military and naval
intelligence services did not have the espionage and sabotage
situation well in hand during this long period. Nor is there any
denial of the fact that not one person of Japanese ancestry was
accused or convicted of espionage or sabotage after Pearl Harbor
while they were still free, 15
a fact which is some evidence of the loyalty of the vast majority
of these individuals and of the effectiveness of the established
methods of combatting these evils. It seems incredible that under
these circumstances it would have been impossible to hold loyalty
hearings for the mere 112,000 persons involved -- or at least
for the 70,000 American citizens -- especially when a large part
of this number represented children and elderly men and women.
16 Any inconvenience that
may have accompanied an attempt to conform to procedural due process
cannot be said to justify violations of constitutional rights
of individuals.
I dissent, therefore, from this legalization
of racism. Racial discrimination in any form and in any degree
has no justifiable part whatever in our democratic way of life.
It is unattractive in any setting but it is utterly revolting
among a free people who have embraced the principles set forth
in the Constitution of the United States. All residents of this
nation are kin in some way by blood or culture to a foreign land.
Yet they are primarily and necessarily a part of the new and distinct
civilization of the United States. They must accordingly be treated
at all times as the heirs of the American experiment and as entitled
to all the rights and freedoms guaranteed by the Constitution.
---- Begin EndNotes ----
1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J. L. DeWitt. This report is dated June 5, 1943, but was not made public until January, 1944.
2 Further
evidence of the Commanding General's attitude toward individuals
of Japanese ancestry is revealed in his voluntary testimony on
April 13, 1943, in San Francisco before the House Naval Affairs
Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40
(78th Cong., 1st Sess.):
"I don't want any of them [persons of Japanese ancestry] here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. . . . The danger of the Japanese was, and is now -- if they are permitted to come back -- espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make proble
3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that "while it was believed that some were loyal, it was known that many were not." (Italics added.)
4 Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.
5 Final Report, pp. 10-11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.
6 Final Report, p. 22. The charge of "dual citizenship" springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, "Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law," 28 Cornell L. Q. 414, 447-8, and authorities there cited; McWilliams, Prejudice, 123-4 (1944).
7 Final Report, pp. 12-13. We have had various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3 (1944).
8 Final Report, pp. 13-15. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement -- the actions and membership of which are well known to our Government agents.
9 n9 Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59-93.
10 Final Report, pp. 8-9. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145-7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).
11 Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942 -- a considerable time after the Japanese Americans had been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.
12 Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 126-8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that "We're charged with wanting to get rid of the Japs for selfish reasons. . . . We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. . . . They undersell the white man in the markets. . . . They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either." Quoted by Taylor in his article "The People Nobody Wants," 214 Sat. Eve. Post 24, 66 (May 9, 1942).
13 See notes 4-12, supra.
14 Final Report, p. vii; see also p. 18.
15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage.
16 During
a period of six months, the 112 alien tribunals or hearing boards
set up by the British Government shortly after the outbreak of
the present war summoned and examined approximately 74,000 German
and Austrian aliens. These tribunals determined whether each individual
enemy alien was a real enemy of the Allies or only a "friendly
enemy." About 64,000 were freed from internment and from
any special restrictions, and only 2,000 were interned. Kempner,
"The Enemy Alien Problem in the Present War," 34 Amer.
Journ. of Int. Law 443, 444-46; House Report No. 2124 (77th Cong.,
2d Sess.), 280-1.
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