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A Few Thoughts About Korematsu (and Justice Gorsuch)
Andrew Hyman

Many people view the case of Korematsu v. United States (1944) as among the U.S. Supreme Court’s worst, because that decision supposedly authorized race-based detention of U.S. citizens during wartime.  But, rightly or wrongly, the Court in that case said it was wiggling out of that issue: “Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order.”  The Court only addressed the part of the order that excluded Japanese-Americans from large portions of the western United States, not the part that put them into internment camps.

So the decision was not quite as horrible as it’s often made out to be.  Still, Justice Jackson’s dissent probably got it right.  He pointed out that, “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.”  That being so, the order of General John DeWitt was likely unconstitutional, absent more specific authorization for it, because in 1792 (when the Fifth Amendment took effect) a military order -- even by the commander in chief -- was not understood to be the law of the land within the meaning of the Due Process Clause.  So Congress would have had to specifically endorse DeWitt’s proposal, or else would have had to specifically exempt such matters from the jurisdiction of civilian courts.  Justice Jackson explained: “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.”  When a statute's text says nothing about racial discrimination, it's hard to infer that the statute delegates power to racially discriminate, much less to do so without any inividualized inquiry or evidence of necessity.

The other dissenting justices in Korematsu took different approaches.  For example, Justice Murphy wrote that, “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 might be nice if the Fifth Amendment truly had an equal protection component, but it does not; the idea that it does is just another aspect of the misbegotten notion of substantive due process.  If the Constitution’s requirement of due process of law really did include an equal protection component, then the Missouri Compromise would have been unconstitutional, and moreover the Equal Protection Clause in the Fourteenth Amendment would have been completely superfluous.  So, I was a bit taken aback to see Justice Gorsuch write recently that, “A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws.”  Number one, the Court in Korematsu expressly ducked the issue of executive internment (see quote above), and instead only addressed the issue of exclusion.  Number two, the Equal Protection Clause expressly applies only against the states.

However, Gorsuch and Jackson are 100% correct that DeWitt’s order was not a “law” within the meaning of the Due Process Clause, not because the order was horrific or unjust or racist (it was all those things) but rather because it was not adequately authorized by Congress.  Professor McConnell once made a similar observation about Bolling v. Sharpe, which involved racial segregation in D.C. public schools, writing that such racial segregation was unconstitutional because Congress never "required that the schools of the District of Columbia be segregated.”  Justice Gorsuch would be on firmer ground if he would likewise say that the racist internment during World War II was unconstitutional because Congress never required it. 

If Congress had specifically authorized the internment, without stripping the federal courts  of jurisdiction or suspending habeas corpus, then the internment of citizens like Mr. Korematsu would still have needed to be reconciled in court with other constitutional requirements, but the exceptions to those requirements can grow considerably during wartime, especially in the face of purported military necessity.  I am speaking here about the requirements of grand jury indictment, speedy trial, probable cause, et cetera.  Putting people of one racial group into temporary confinement on suspicion of treason could conceivably have been justified based on proof that the enemy was very possibly turning a substantial portion of that racial group into saboteurs and agents, but I am far from convinced that such a thing could have been proved of Japanese-Americans during World War II.  Justice Black’s majority opinion in Korematsu stated that, “Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.”  But there was also much evidence on the other side of the ledger.