Korematsu, Travel Bans, and Resisting History’s “Gravely Wrong” Injustices as They Happen

On February 19, 1942, the White House issued Executive Order 9066 which led to the forcible detention, removal, and incarceration (see JACL’s Power of Words) of 120,000 Japanese and Japanese American citizens in hastily-erected detention centers and concentration camps. Assumed (without evidence) to be Japanese spies, Japanese American men, women, and children were imprisoned without due process behind barbed wire fences. There, entire families were crammed into single-room shacks and held at gunpoint in some of America’s bleakest and most desolate landscapes for over four years.

Fred Korematsu was one of a handful of Japanese Americans who courageously defied Executive Order 9066. Refusing to obey the order that he join other Japanese Americans in reporting for forcible relocation, Korematsu instead went on the run. When he was eventually arrested and charged with refusing the military’s relocation order, Korematsu challenged the constitutionality of Japanese American incarceration. That case – Korematsu v. United States – was found against Fred Korematsu, and it would go on to become a landmark Supreme Court decision; moreover, it would be one decision that most legal scholars now agree was decided in error.

Indeed, earlier this month, the Supreme Court of the United States issued a rare rebuke of its 1944 decision against Korematsu. In the Trump v. Hawaii majority decision, Chief Justice John Roberts said that “Korematsu was gravely wrong the day it was decided,” and invoked the dissent penned by Justice Robert Jackson wherein he described Japanese American incarceration as having “no place in law under the Constitu­tion.”

This formal repudiation of Korematsu v. United States has been a long time coming, and it is the culmination of tireless work by Japanese American activists who have dedicated themselves since the camps’ closures to preserve incarceration history and to win justice for camp survivors. Executive Order 9066 was enacted in an era of broad anti-Japanese sentiment. Only after decades of work did the United States government begin to begrudgingly acknowledge the unconstitutionality of targeting a class of people by race for selective denial of their basic civil rights. It took nearly forty years for Congress to formally investigate the camps and to ultimately find them to be a “grave injustice” fueled by “racial prejudice, war hysteria and the failure of political leadership.” It took nearly another decade for the United States to offer monetary compensation to camp survivors for their trauma (even while the government continues to deny similar reparations for survivors of chattel slavery and Native genocide). There is a lot of labor that went into turning the racist tide that cleared the way for Japanese American incarceration; and still, many commentators (most of them on the political Right) have continued to make counterfactual, racist rationalizations for the camps.

Even so, the Supreme Court’s reflection on Korematsu is an empty mea culpa, coming nearly thirty years after Congress apologized for Japanese American incarceration and offered redress to camp survivors. It is not, as the New York Times blithely put it, a “tossing out” of the Korematsu decision. (An original headline for that New York Times story jubilantly declared Korematsu “overruled”.) The Supreme Court was not considering the constitutionality Korematsu case, and they made no formal ruling on that decision’s constitutional standing. Fred Korematsu’s criminal conviction for defying Executive Order 9066 had long been set aside. In Trump v. Hawaii, Roberts wrote that the Korematsu decision had been “overruled in the court of history,” but for all intents and purposes, its legal standing remains unaffected for the Supreme Court of the United States.

Indeed, if anything, Roberts repudiated the Court that ruled against Korematsu even while his own Court reinforced the same “gravely wrong” logic that underpinned government’s original case for Japanese American incarceration. Lest we forget, the question before the Court in 1944 was whether or not the federal government has the power to suspend the constitutional rights of an entire class of people due to perceived national security threats; when the Court ruled for the US government, they agreed that the Constitution allows for such “national security” exceptions to target entire classes of people. That ruling remains the law of the land in the United States of America.

Indeed, the late Justice Antonin Scalia – never one to voluntarily side with the political Left – warned that even while the Korematsu decision might have been wrong, the racial “panic” of Japanese American incarceration could easily happen again; today, however, it would have the legal cover of the Korematsu decision.

True to form, Roberts insists that Japanese American incarceration has “nothing to do” with President Trump’s attempted travel ban on Muslim immigrants. In so doing, he legitimizes the racial panic of the travel ban. In contrasting the travel ban against Japanese American incarceration, Roberts suggests that the Trump travel ban is “facially neutral” and that it denies immigrants the “privilege” of admission. He forgets that Executive Order 9066 was argued to be facially neutral as well, and that most did not see forcible relocation as an infringement on Japanese Americans’ constitutional rights. More the point, the justices who ruled for the White House in Trump v. Hawaii offer an empty rebuke of Korematsu even while they reinforce the long-standing argument that a potential “military threat” justifies targeted disenfranchisement. It is meaningless to declare the Korematsu decision “gravely wrong” while committing that same fresh wrong against whole new classes of people – as the Trump administration does every day.

Whether it is the selective banning of Muslim immigrants; or, the mass detention and deportation of US immigrants and naturalized citizens; or, the forcible separation of young children from their parents at the border; or, the reversal of Obama-era protections for women, disabled people, gay and trans people, and underrepresented and underserved people of colour – the Trump administration commits “gravely wrong” injustices under the cover of the law every single day.

It has taken nearly 75 years for the Supreme Court to (sort of) formally recognize the error of the Korematsu ruling even while they strengthen the legal reasoning of that flawed decision. Will it take another 75 years for us to finally see the wrongs happening right now, right before our very eyes?

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