A Stain on American Jurisprudence – Korematsu v. United States

by Gavin Holihan

Years later, almost everyone would agree that the Executive Order was wrong: racially motivated, falsely justified as essential to national security, and supported by a mix of lies and misrepresentations. The legislation that followed permitted racial discrimination by the government. The deprivation of the Constitutional rights of American citizens because of their race, ethnicity, and religion was sanctioned by all three branches of the federal government. A majority of the United States Supreme Court approved the systematic racial discrimination against a minority group whose ethnicity made them enemies in the eyes of some. A vocal segment of the media, supporting the Executive Order, agitated the population with stories and opinion pieces designed to divide the nation and demonize the minority groups.

Facts were hidden from the public.  Outright lies were presented in court to rationalize the programs. The President justified his actions as a matter of military urgency. He ignored his own intelligence community and suppressed their findings that no threat to national security excused his actions.

Contemporaneous opponents of the Executive Order and legislation were few. Many years later they would be vindicated by political leaders on all sides. However, when they pointed out that the policies fell “into the ugly abyss of racism,” they were ignored. They were the dissenting minority when they pointed out that “racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

What followed was the implementation of a policy to demean, degrade, demonize, and disenfranchise a vulnerable minority population, including tens of thousands of American citizens. The policy was not based on evidence of misconduct, but solely upon an individual’s ethnicity.  Years later, almost everyone would agree that it was wrong. It took many years, but the agreement was nearly unanimous and overwhelmingly bipartisan.

Forty years later, a Congressional report would call the Supreme Court decision upholding the Executive Order a “Stain on American Jurisprudence.” The bipartisan legislation would attribute the policies to “race prejudice, war hysteria, and a failure of political leadership.” Forty-six years later a new law would be signed by a Republican President authorizing the payment of reparations to those who suffered under the policies. A formal apology followed from the next Republican President two years later.

Sixty-seven years after the fact, the Solicitor General of the United States would publicly correct the lies used to support the policies. He would acknowledge that his predecessor in office withheld a report by the relevant intelligence agencies that found no military threat existed and no national security interests were served by the Executive Order. Finally, some seventy-four years after the Supreme Court affirmed the discrimination, the sitting Chief Justice of the United States Supreme Court admitted that the earlier decision was “gravely wrong” and its holding “has no place in law under the Constitution.”

An American citizen convicted under the laws enacting the Executive Order finally had his conviction overturned forty years after the Supreme Court had upheld it. The difference was that forty years later, the misconduct of the government had come to light and the arguments about military necessity and national security were proven to be lies. Long hidden documents demonstrating the racist motivations behind Executive Order Number 9066 were revealed.  It took many political leaders decades to acknowledge the enormity of the wrongness of the racist policies and to speak out against them.

Fred Korematsu, an American citizen, was convicted in 1942 of violating the Executive Order and the laws enacting it which called for the exclusion and internment of Japanese-Americans. His conviction was upheld by the United States Supreme Court in a 1944 decision that many see as historically shameful as the Dred Scott decision and Plessy v. Ferguson.

Years later, almost everyone would agree that the Executive Order, the legislation, and the Supreme Court decision represent a stain on American jurisprudence. When President Gerald Ford officially terminated the Executive Order in 1976, he said, “We know now what we should have known then; it was wrong.”

A Congressional report led to legislation in 1988 signed into law by Ronald Reagan granting reparations. Two years later, George H.W. Bush issued a formal apology and the first of the reparation payments. In 2011, the United States Solicitor General acknowledged that his predecessor in 1944 had withheld a report by the Office of Naval Intelligence that concluded Japanese-Americans did not pose a military threat and there was no evidence they were disloyal to the United States.

What everyone now knows to be wrong was, at the time, attributable to “race prejudice, war hysteria, and a failure of political leadership.” The United States suffers still from these shortcomings. We should not have to re-learn shameful lessons from our past.  We should not wait decades to confront and correct obvious acts of injustice.

Fred Korematsu made the point clear late in his life. “No one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese-Americans, then these are very dangerous times for our democracy.”

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