Fred Korematsu

Fred Korematsu was born 98 years ago today. When John “A Jap’s a Jap” DeWitt ordered everyone of Japanese descent in Military Area #1 to assemble to be moved to concentration camps pursuant to FDR’s Executive order 9066, Korematsu fled and was arrested. His case made it to the Supreme Court, which upheld the evacuation order — nominally 6-3, although since the bottom line of Robert Jackson’s eloquently written dissent was that the Court should have deferred to the executive branch silently rather than explicitly there were effectively 7 votes to uphold the order.

As one of real dissenters, Frank Murphy, observed:

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 [p234] 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.

Conversely, in his concurrence Felix Frankfurter went to the elaborate denial of responsibility he always had handy when public officials plausibly or clearly violated explicit constitutional provisions he didn’t want to enforce:

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.

Let’s just say that Robert Cover was unfair to Bobby Murcer. Although in this case he was joined by Justices Black and Douglas, who didn’t believe the First Amendment should be effectively read out of the Constitution but did believe in deference to the executive during wartime (at least when they supported the war. And, come to think of it, Frankfurter also believed that the courts should defer to the executive in wartime except when they shouldn’t, because that’s how he always rolled.) This is the choice that judges will have to make.