Work record
Korematsu v. United States
1944 · Early 20th Century · Court Decision · English
Abstract
Question Presented. Could Congress and the Army, acting under wartime authority, make it a crime for an American-born citizen of Japanese descent to remain in his California hometown after a military deadline?
Arguments. Korematsu's counsel contended that he was punished for parentage alone, with no inquiry into loyalty, and that contradictory orders left him no lawful choice except surrender to confinement. Government lawyers maintained that commanders, fearing invasion and unable to screen a large population in time, reasonably judged removal necessary against spying and sabotage under congressional authorization.
Holding. By six votes to three the conviction stood. Black's majority subjected the measure to its most demanding review yet accepted the military assessment, building on the curfew precedent and reserving judgment on confinement. Frankfurter added that constitutionality is distinct from approval. Roberts, Murphy and Jackson each dissented, on grounds of conflicting orders, absence of real necessity, and the enduring danger of a judicial endorsement.
Significance. A federal court in San Francisco set aside the conviction in 1983 after suppressed intelligence reports surfaced. Five years later Congress formally apologized and authorized redress payments of $20,000 to each surviving detainee. Writing in 2018, the Chief Justice declared the 1944 ruling wrong when issued, while its suspect-classification language survives in equal protection doctrine.
Key figures
- Fred Korematsu: Citizen welder prosecuted for staying in his home district
- Hugo Black: Wrote the majority sustaining the order under rigid scrutiny
- Robert H. Jackson: Dissenter who would have refused to enforce the order
- Frank Murphy: Dissenter who challenged the claim of military necessity
- Owen Roberts: Dissenter who saw the conviction as punishment for refusing confinement
Summary
Korematsu v. United States, 323 U.S. 214, decided on 18 December 1944, upheld the criminal conviction of an American citizen for remaining in his home area after the Army ordered all persons of Japanese ancestry to leave it. After Pearl Harbor, President Franklin Roosevelt's Executive Order 9066 of 19 February 1942 let military commanders designate areas from which any person might be excluded, and on 21 March Congress made violating their orders a crime. Lieutenant General John L. DeWitt imposed a curfew and then exclusion orders; Civilian Exclusion Order No. 34 required persons of Japanese descent to leave the San Leandro area of California after 9 May 1942. Fred Korematsu, a twenty-three-year-old welder born in Oakland, stayed, was arrested at the end of May, and was convicted. About 110,000 to 120,000 people, most of them citizens, were removed from the West Coast and held in assembly and relocation centers. Korematsu argued that he had been punished solely for his ancestry, without any finding about his loyalty, and that the orders forbidding him both to leave and to remain were in effect a command to report for detention. The government answered that military authorities, facing possible invasion and unable to separate the loyal from the disloyal quickly, had reasonably judged that exclusion was needed to prevent espionage and sabotage, and that Congress had authorized them to act. The Court affirmed by a vote of six to three. Justice Hugo Black declared that legal restrictions on a single racial group are immediately suspect and must receive the most rigid scrutiny, but held that pressing military necessity justified this one, relying on the 1943 curfew decision in Hirabayashi v. United States. He declined to pass on detention. Justice Frankfurter concurred, reasoning that the war power covers measures reasonably taken to wage war and that upholding them is not approving them. Justice Roberts dissented on the ground that the conflicting orders amounted to punishing a citizen for refusing to submit to imprisonment. Justice Murphy argued that the exclusion rested on assumptions about an entire group rather than on any showing of military necessity, and that individual hearings had been feasible. Justice Jackson contended that courts cannot weigh military judgments, but that a court which validates such an order lends the principle a lasting authority. The library text contains Black's opinion, Frankfurter's concurrence, Jackson's full dissent and excerpts of the Roberts and Murphy dissents, without footnotes. In 1983 Judge Marilyn Hall Patel of the federal district court in San Francisco vacated Korematsu's conviction by writ of coram nobis, finding that the government had withheld evidence contradicting its claims of military necessity. The Civil Liberties Act of 1988 issued a formal apology and paid $20,000 to each surviving person who had been detained. In Trump v. Hawaii (2018) Chief Justice Roberts wrote for the Court that Korematsu was gravely wrong the day it was decided and had been overruled in the court of history.
Virtues in this work
- Fortitude: Fred Korematsu stood by his challenge through conviction and detention in 1942 and again through four decades until his conviction was vacated.
- Justice: Jackson insisted that guilt is personal and refused to let the law punish a citizen for an act innocent in anyone of different parentage.
- Prudence: Murphy granted the military wide discretion yet asked whether individual loyalty hearings could have separated the few dangerous from the many loyal.
Plot or Argument
- The orders, the conviction and the standard of review
Black states the facts of Korematsu's conviction under Civilian Exclusion Order No. 34 and the Act of 21 March 1942. He announces that restrictions curtailing the civil rights of a single racial group are immediately suspect and subject to the most rigid scrutiny, though pressing public necessity may sometimes justify them.
- Building on Hirabayashi
The majority treats the curfew decision of 1943 as controlling in principle: both orders rest on the same statute and executive order and aim at espionage and sabotage. Exclusion is a greater deprivation than curfew, but Black holds that it too bears a close relationship to the military danger as the authorities assessed it in 1942.
- Exclusion separated from detention
Black rejects the argument that the order was part of a single program of removal and confinement, holding that only the exclusion order is before the Court. He acknowledges the hardships imposed, describes war as an aggregation of hardships, and insists the case concerns military danger rather than hostility toward Korematsu.
- Frankfurter's concurrence
Frankfurter reads the orders as consistent and holds that the war power extends to every measure reasonably taken to wage war successfully. He adds that finding the orders constitutional does not mean approving what Congress and the Executive did.
- The dissents of Roberts and Murphy
Roberts sets out the conflicting orders that forbade Korematsu both to leave and to remain and concludes that he was punished for refusing to report to a camp. Murphy accepts that military judgments deserve great respect but finds that the Commanding General's Final Report relied on generalizations about an entire ancestry rather than evidence of danger, and asks why loyalty hearings were not held.
- Jackson's dissent
Jackson emphasizes that Korematsu was a citizen by birth convicted for an act innocent in anyone of other descent, and that guilt is personal. He doubts courts can judge military reasonableness and would simply refuse to enforce the order, warning that a judicial opinion sanctioning it outlasts the emergency and lies about like a loaded weapon.
Characters
- Fred Korematsu, petitioner
Oakland-born welder of Japanese parentage, convicted for remaining in San Leandro after the exclusion date; his conviction was vacated in 1983.
- Hugo Black, author of the opinion of the Court
Alabama-born Roosevelt appointee who wrote for the six-member majority.
- Felix Frankfurter, concurring Justice
Joined the majority and wrote separately on the scope of the war power.
- Owen Roberts, dissenting Justice
Argued that the conflicting orders made Korematsu's conviction a punishment for refusing detention.
- Frank Murphy, dissenting Justice
Argued that the exclusion lacked a reasonable relation to military necessity and rested on assumptions about a whole group.
- Robert H. Jackson, dissenting Justice
Argued that courts should refuse to enforce such an order and warned of the lasting effect of the precedent.
- John L. DeWitt, Commanding General, Western Defense Command
Issued the curfew and exclusion orders and the Final Report discussed in Murphy's dissent.
Lessons
Rigid scrutiny announced and applied
Black's opinion is the origin of the phrase that racial classifications are immediately suspect and require the most rigid scrutiny, a standard later used to strike down many laws. In Korematsu itself, however, the Court found the standard satisfied by the military's judgment. Students can examine how a strict test can be stated in principle and applied with deference in practice.
- What does Black say courts must do with restrictions that curtail the rights of a single racial group?
- What evidence of necessity does the majority accept?
- Why might a court be especially deferential in wartime?
Deciding only the question presented
The majority insists that only exclusion, not detention, is before it, and on the same day decided in Ex parte Endo that a concededly loyal citizen could not be held in a relocation center. Roberts and Jackson argue that the orders cannot be separated so neatly. The dispute shows how framing the question can shape the answer.
- Why does Black refuse to rule on the detention program?
- How does Roberts show that Korematsu could neither leave nor stay lawfully?
- Is it fair to judge one part of a program without considering the whole?
Courts, war and the limits of review
The opinions offer three different views of the judiciary in wartime: Frankfurter's that military measures reasonable for waging war are constitutional, Murphy's that courts must test whether military discretion has been overstepped, and Jackson's that courts cannot evaluate military necessity and should therefore refuse to lend the law's authority to such orders.
- What does Frankfurter mean by saying the measures are the business of Congress and the Executive, not the Court?
- Why does Jackson think a judicial opinion is more dangerous to liberty than the military order itself?
- Which of the three views gives citizens the most dependable protection?
Guilt that is personal
Jackson points out that Korematsu was convicted for an act that would have been lawful had his parents been born in Germany or Italy, and invokes the Constitution's ban on corruption of blood for treason. The principle that guilt attaches to individual conduct, not ancestry, runs through the dissents.
- Which constitutional provision does Jackson cite to show that guilt is not inheritable?
- How does Jackson compare Korematsu with a German alien enemy or an Italian alien enemy?
How a nation revisits a decision
Korematsu was never formally overruled in the ordinary way, yet its standing changed through a 1976 presidential proclamation, a congressional commission, a 1983 vacatur of the conviction, a 1988 statute of apology and redress, and a 2018 statement of the Court. Each branch of government took part in that history.
- What new evidence led Judge Patel to vacate the conviction in 1983?
- What did the Civil Liberties Act of 1988 provide?
- What does it mean for a decision to be overruled in the court of history?
Context
Japan's attack on Pearl Harbor on 7 December 1941 and its rapid advances across the Pacific produced fear of invasion and sabotage along the West Coast, where most of the roughly 127,000 people of Japanese ancestry in the continental United States lived. Political leaders, newspapers and civic groups pressed for removal, and the Army's Western Defense Command recommended it. Executive Order 9066, the Act of 21 March 1942 and a series of military proclamations led to the removal of nearly all persons of Japanese descent from the coastal zone to assembly centers and then to ten relocation centers in the interior.
Composition
Korematsu was arrested on 30 May 1942 and convicted in the federal district court in San Francisco; the Ninth Circuit affirmed. The Supreme Court heard argument in October 1944 and announced its decision on 18 December 1944, the same day it decided Ex parte Endo; the day before, the Army had announced the end of mass exclusion. The library text, from the U.S. Reports via Wikisource, gives Black's opinion, Frankfurter's concurrence and Jackson's dissent in full, with excerpts of the Roberts and Murphy dissents and no footnotes.
Reception
Commentators criticized the decision from the start, among them Eugene Rostow in a 1945 Yale Law Journal article. President Gerald Ford formally rescinded Executive Order 9066 in 1976. The Commission on Wartime Relocation and Internment of Civilians, created by Congress in 1980, reported in 1983 that the program had not been justified by military necessity. That year research by Peter Irons uncovered government documents showing that intelligence reports doubting the military's claims had been withheld from the Court, and Judge Marilyn Hall Patel granted Korematsu's petition for a writ of coram nobis. President Ronald Reagan signed the Civil Liberties Act on 10 August 1988, and President Bill Clinton awarded Korematsu the Presidential Medal of Freedom in 1998. In Trump v. Hawaii (2018) the Court, through Chief Justice John Roberts, stated that Korematsu was gravely wrong the day it was decided, quoting Jackson's dissent that it had no place in law under the Constitution.
Comparisons
- ex-parte-milligan
Milligan (1866) held that military tribunals could not try civilians where civil courts were open; Murphy and Jackson draw on the same concern for civil authority in wartime.
- youngstown-sheet-and-tube-v-sawyer
Black and Jackson met again in 1952 over presidential emergency power, this time both holding that the Executive had exceeded its authority.
- united-states-v-wong-kim-ark
Wong Kim Ark (1898) confirmed that a child born in the United States to Chinese parents is a citizen, the birthright citizenship Jackson stresses when he notes Korematsu was a citizen by nativity.
- the-federalist-papers
Hamilton in Federalist No. 8 warned that constant danger leads nations to sacrifice civil rights for security, an argument relevant to every opinion in the case.
- the-founding-documents
Jackson invokes the Constitution's provision that no attainder of treason shall work corruption of blood, and the majority and dissents read the Fifth Amendment's due process guarantee.
Quotes
Frequently cited
“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”
Frequently cited
“Such exclusion goes over "the very brink of constitutional power," and falls into the ugly abyss of racism.”
Frequently cited
“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.”
“Korematsu was not excluded from the Military Area because of hostility to him or his race.”
“To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.”
“On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”
For Students
A reading companion for classical Christian high school students. See the student guide.
Reading Guide
Watch for
- Black's statement that restrictions on a single racial group are immediately suspect, and how he then applies it.
- The majority's reliance on Hirabayashi and its refusal to rule on detention.
- Roberts's account of the orders that forbade Korematsu both to leave and to remain.
- Murphy's discussion of the Commanding General's Final Report.
- Jackson's comparison of Korematsu with the children of German and Italian aliens, and his loaded-weapon image.
Key terms and names
- Executive Order 9066
- Roosevelt's order of 19 February 1942 authorizing military commanders to designate areas from which any person might be excluded.
- Civilian Exclusion Order No. 34
- The Army order requiring persons of Japanese ancestry to leave the San Leandro area after 9 May 1942.
- Most rigid scrutiny
- Black's phrase for the demanding review owed to restrictions on a single racial group, the ancestor of the strict scrutiny standard.
- Assembly and relocation centers
- The temporary and longer-term camps to which persons removed from the West Coast were sent.
- Writ of coram nobis
- A rare remedy allowing a court to correct its own judgment after the sentence is served when fundamental errors of fact come to light.
- Corruption of blood
- The old penalty of extending punishment for treason to a traitor's heirs, which the Constitution forbids and Jackson cites.
- Civil Liberties Act of 1988
- The federal statute that apologized for the wartime removal and detention and provided $20,000 to each surviving detainee.
Seminar Questions
- Comprehension What crime was Korematsu convicted of, and under what order and statute?
- Comprehension What was the vote, and which justices wrote separately?
- Comprehension What happened in 1983 and 1988 that changed the standing of the case?
- Interpretation How does Black reconcile his statement that racial restrictions are suspect with his decision to uphold the order?
- Interpretation Why does Jackson think a court that upholds a military order does more lasting damage than the military commander who issued it?
- Interpretation Compare Murphy's and Frankfurter's views on how much courts should defer to military judgment.
- Big Question How should a free people weigh security against individual rights when they believe they face an urgent danger?
Faith Connections
- Ezekiel 18:20 (Scripture)
The son shall not bear the iniquity of the father; Jackson's principle that guilt is personal and not inheritable echoes this teaching.
- Deuteronomy 1:16-17 (Scripture)
Moses charges the judges to hear the small as well as the great and not to be afraid of the face of man, a standard for judging in times of fear.
- Esther 3:8-11 (Scripture)
Haman persuades the king that a whole people scattered in his realm are a danger to him, a biblical account of suspicion cast on an entire group.
Logic and Rhetoric
Central argument: The majority reasons that although restrictions on a racial group are suspect, Congress and the military, facing a real threat of invasion and unable to separate loyal from disloyal quickly, could reasonably exclude all persons of Japanese ancestry from the coast, and courts should not second-guess that wartime judgment.
Rhetorical device: metaphor of latent danger. Jackson's image of a principle that lies about like a loaded weapon (quote 5) turns an abstract point about precedent into a concrete warning about future misuse.
Debate: Resolved: that in time of war, courts should defer to military judgments about the civilian population.
Memory Work
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
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.
Writing Prompts
Essay: Lay out the strongest case the government made in 1944 and the strongest answer of each dissenter, then explain how the evidence brought to light in 1983 bears on each argument.
Comparison with Ex parte Milligan: Compare the Court's view of military authority over civilians in Ex parte Milligan (1866) with the majority and dissents in Korematsu, and explain what accounts for the difference.
Medical Lens
The opinions concern war powers, equal protection and due process; they contain no discussion of health or medical conditions in the assembly or relocation centers.
Creative Prompts
- Classroom
Hold a moot court with three counsel tables: the United States, Korematsu, and an amicus arguing only that the exclusion and detention orders must be judged together.
- Essay
Write a short brief in 1944 for the government defending the exclusion order, and a reply in the voice of Justice Murphy, each using only evidence available at the time.
- Dialogue
Write a conversation between Justice Black and Justice Jackson in 1952, as they prepare their Youngstown opinions, reflecting on what each had written in Korematsu.
- Essay
Explain what a writ of coram nobis is and why it was the remedy Korematsu's lawyers chose in 1983 rather than a new appeal.
Further Reading
- Justice at War: The Story of the Japanese American Internment Cases, Peter Irons
Legal history of Hirabayashi, Yasui, Korematsu and Endo, based on the government files that led to the 1983 coram nobis petition.
- Personal Justice Denied, Commission on Wartime Relocation and Internment of Civilians
The congressional commission's report on Executive Order 9066 and its consequences.
- By Order of the President: FDR and the Internment of Japanese Americans, Greg Robinson
Study of Roosevelt's role in the decision to remove persons of Japanese ancestry from the West Coast.
- Farewell to Manzanar, Jeanne Wakatsuki Houston and James D. Houston
Memoir of a girl's family life in the Manzanar relocation center, often read alongside the case.
Verification notes
The six quotations, one or more from each of the five opinions in the library text, were confirmed by Grep in content/texts/korematsu-v-united-states.txt; the Roberts and Murphy passages fall within the excerpted portions. Quotation text keeps the justices' own 1944 wording. Later events (the 1976 Ford proclamation, the 1983 commission report and coram nobis ruling, the 1988 Act and the 2018 statement) are reported factually from general knowledge; web search was unavailable during writing, so the specific dates and figures are listed for checking.
- Confirm the date of Judge Patel's coram nobis ruling (10 November 1983) and the citation 584 F. Supp. 1406 (N.D. Cal. 1984).
- Confirm the estimate of about 110,000 to 120,000 persons removed and the figure of roughly 127,000 persons of Japanese ancestry in the continental United States.
- Confirm the argument dates in October 1944 and the date of Korematsu's arrest (30 May 1942).
- Confirm that Owen Roberts chaired the Pearl Harbor investigating commission (Roberts Commission, 1941-1942).