TOYOSABURO KOREMATSU v. UNITED STATES
No. 22
323 U.S. 214, 215-224, 224-225, 242-248, 65 S.Ct. 193, 89 L.Ed.2d 194 (1944)
Mr. Justice BLACK delivered the opinion
of the Court.
The
petitioner, an American citizen of Japanese descent, was convicted in a federal
district court for remaining in San Leandro, California, a 'Military Area',
contrary to Civilian Exclusion Order No. 34 of the Commanding General [323 U.S. 214, 216] of the Western Command, U.S. Army, which
directed that after May 9, 1942, all persons of Japanese ancestry should be
excluded from that area. No question was raised as to petitioner's loyalty to
the United States. The Circuit Court of Appeals affirmed,1 and the
importance of the constitutional question involved caused us to grant
certiorari.
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.
In
the instant case prosecution of the petitioner was begun by information
charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18
U.S.C.A. 97a, which provides that
'... whoever shall enter, remain in,
leave, or commit any act in any military area or military zone prescribed,
under the authority of an Executive order of the President, by the Secretary of
War, or by any military commander designated by the Secretary of War, contrary
to the restrictions applicable to any such area or zone or contrary to the
order of the Secretary of War or any such military commander, shall, if it
appears that he knew or should have known of the existence and extent of the
restrictions or order and that his act was in violation thereof, be guilty of a
misdemeanor and upon conviction shall be liable to a fine of not to exceed
$5,000 or to imprisonment for not more than one year, or both, for each
offense.'
Exclusion
Order No. 34, which the petitioner knowingly and admittedly violated
was one of a number of military orders and proclamations, all of which were
sub- [323 U.S. 214, 217] stantially
based upon Executive Order No. 9066, 7 Fed.Reg. 1407.
That order, issued after we were at war with Japan, declared that 'the
successful prosecution of the war requires every possible protection against
espionage and against sabotage to national-defense material, national-defense
premises, and national-defense utilities. ...'
One
of the series of orders and proclamations, a curfew order, which like the
exclusion order here was promulgated pursuant to Executive Order 9066,
subjected all persons of Japanese ancestry in prescribed West Coast military
areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with
the exclusion order here, that prior curfew order was designed as a 'protection
against espionage and against sabotage.' In Kiyoshi
Hirabayashi v. United States, 320 U.S. 81,
63 S.Ct. 1375, we sustained a conviction obtained for violation of the curfew
order. The Hirabayashi conviction and this one thus
rest on the same 1942 Congressional Act and the same basic executive and
military orders, all of which orders were aimed at the twin dangers of
espionage and sabotage.
The
1942 Act was attacked in the Hirabayashi case as an
unconstitutional delegation of power; it was contended that the curfew order
and other orders on which it rested were beyond the war powers of the Congress,
the military authorities and of the President, as Commander in Chief of the
Army; and finally that to apply the curfew order against none but citizens of
Japanese ancestry amounted to a constitutionally prohibited discrimination
solely on account of race. To these questions, we gave the serious
consideration which their importance justified. We upheld the curfew order as
an exercise of the power of the government to take steps necessary to prevent
espionage and sabotage in an area threatened by Japanese attack.
In
the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power
of Congress and the Executive to exclude [323 U.S. 214, 218]
those of Japanese ancestry from the West Coast war area at the time they did.
True, exclusion from the area in which one's home is located is a far greater
deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing
short of apprehension by the proper military authorities of the gravest
imminent danger to the public safety can constitutionally justify either. But
exclusion from a threatened area, no less than curfew, has a definite and close
relationship to the prevention of espionage and sabotage. The military
authorities, charged with the primary responsibility of defending our shores,
concluded that curfew provided inadequate protection and ordered exclusion.
They did so, as pointed out in our Hirabayashi opinion,
in accordance with Congressional authority to the military to say who should,
and who should not, remain in the threatened areas.
In
this case the petitioner challenges the assumptions upon which we rested our
conclusions in the Hirabayashi case. He also urges that by May 1942,
when Order No. 34 was promulgated, all danger of Japanese invasion of the West
Coast had disappeared. After careful consideration of these contentions we are
compelled to reject them.
Here,
as in the Hirabayashi
case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, '... we cannot reject
as unfounded the judgment of the military authorities and of Congress that
there were disloyal members of that population, whose number and strength could
not be precisely and quickly ascertained. We cannot say that the war-making
branches of the Government did not have ground for believing that in a critical
hour such persons could not readily be isolated and separately dealt with, and
constituted a menace to the national defense and safety, which demanded that
prompt and adequate measures be taken to guard against it.'
Like
curfew, exclusion of those of Japanese origin was deemed necessary because of
the presence of an unascertained number of disloyal members of the group, most
of [323 U.S. 214, 219] whom we have no doubt were
loyal to this country. It was because we could not reject the finding of the
military authorities that it was impossible to bring about an immediate
segregation of the disloyal from the loyal that we sustained the validity of
the curfew order as applying to the whole group. In the instant case, temporary
exclusion of the entire group was rested by the military on the same ground.
The judgment that exclusion of the whole group was for the same reason a
military imperative answers the contention that the exclusion was in the nature
of group punishment based on antagonism to those of Japanese origin. That there
were members of the group who retained loyalties to Japan has been confirmed by
investigations made subsequent to the exclusion. 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.2
We
uphold the exclusion order as of the time it was made and when the petitioner
violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S.
543, 547, 44 S.Ct. 405, 406; Block v.
Hirsh, 256 U.S.
135, 154, 155 S., 41 S.Ct. 458, 459, 16 A.L.R. 165. In doing so, we are not
unmindful of the hardships imposed by it upon a large group of American
citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69,
73, 63 S.Ct. 115, 117. But hardships are part of war, and war is an
aggregation of hardships. All citizens alike, both in and out of uniform, feel
the impact of war in greater or lesser measure. Citizenship has its
responsibilities as well as its privileges, and in time of war the burden is
always heavier. Compulsory [323 U.S. 214, 220] exclusion of
large groups of citizens from their homes, except under circumstances of direst
emergency and peril, is inconsistent with our basic governmental institutions.
But when under conditions of modern warfare our shores are threatened by
hostile forces, the power to protect must be commensurate with the threatened
danger.
It
is argued that on May 30, 1942, the date the petitioner was charged with
remaining in the prohibited area, there were conflicting orders outstanding,
forbidding him both to leave the area and to remain there. Of course, a person
cannot be convicted for doing the very thing which it is a crime to fail to do.
But the outstanding orders here contained no such contradictory commands.
There
was an order issued March 27, 1942, which prohibited petitioner and others of
Japanese ancestry from leaving the area, but its effect was specifically
limited in time 'until and to the extent that a future proclamation or order
should so permit or direct.' 7 Fed.Reg.
2601. That 'future order', the one for violation of which petitioner was
convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area
of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore
it contained a warning that all such persons found in the prohibited area would
be liable to punishment under the March 21, 1942 Act of Congress. Consequently,
the only order in effect touching the petitioner's being in the area on May 30,
1942, the date specified in the information against him, was the May 3 order which
prohibited his remaining there, and it was that same order, which he stipulated
in his trial that he had violated, knowing of its existence. There is therefore
no basis for the argument that on May 30, 1942, he was subject to punishment,
under the March 27 and May 3rd orders, whether he remained in or left the area.
It
does appear, however, that on May 9, the effective date of the exclusion order,
the military authorities had [323 U.S. 214, 221] already
determined that the evacuation should be effected by assembling together and
placing under guard all those of Japanese ancestry, at central points,
designated as 'assembly centers', in order 'to insure the orderly evacuation
and resettlement of Japanese voluntarily migrating from military area No. 1 to
restrict and regulate such migration.' Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19,
1942, eleven days before the time petitioner was charged with unlawfully
remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg.
982, provided for detention of those of Japanese ancestry in assembly or
relocation centers. It is now argued that the validity of the exclusion order
cannot be considered apart from the orders requiring him, after departure from
the area, to report and to remain in an assembly or relocation center. The
contention is that we must treat these separate orders as one and inseparable;
that, for this reason, if detention in the assembly or relocation center would
have illegally deprived the petitioner of his liberty, the exclusion order and
his conviction under it cannot stand.
We
are thus being asked to pass at this time upon the whole subsequent detention
program in both assembly and relocation centers, although the only issues
framed at the trial related to petitioner's remaining in the prohibited area in
violation of the exclusion order. Had petitioner here left the prohibited area
and gone to an assembly center we cannot say either as a matter of fact or law,
that his presence in that center would have resulted in his detention in a
relocation center. Some who did report to the assembly center were not sent to
relocation centers but were released upon condition that they remain outside
the prohibited zone until the military orders were modified or lifted. This
illustrates that they pose different problems and may be governed by different
principles. The lawfulness of one does not necessarily determine the lawfulness
of the others. This is made clear [323 U.S. 214, 222] when we
analyze the requirements of the separate provisions of the separate orders.
These separate requirements were that those of Japanese ancestry (1) depart
from the area; (2) report to and temporarily remain in an assembly center; (3)
go under military control to a relocation center there to remain for an indeterminate
period until released conditionally or unconditionally by the military
authorities. Each of these requirements, it will be noted, imposed distinct
duties in connection with the separate steps in a complete evacuation program.
Had Congress directly incorporated into one Act the language of these separate
orders, and provided sanctions for their violations, disobedience of any one
would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S.
299, 304, 52 S.Ct. 180, 182. There is no reason why violations of
these orders, insofar as they were promulgated pursuant to congressional
enactment, should not be treated as separate offenses.
The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283,
65 S.Ct. 208, graphically illustrates the difference between the validity of an
order to exclude and the validity of a detention order after exclusion has been
effected.
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. It is sufficient here for us to pass
upon the order which petitioner violated. To do more would be to go beyond the
issues raised, and to decide momentous questions not contained within the
framework of the pleadings or the evidence in this case. It will be time enough
to decide the serious constitutional issues which petitioner seeks to raise
when an assembly or relocation order is applied or is certain to be applied to
him, and we have its terms before us.
Some
of the members of the Court are of the view that evacuation and detention in an
Assembly Center were inseparable. After May 3, 1942, the date of Exclusion [323 U.S. 214, 223] Order No. 34, Korematsu was under compulsion
to leave the area not as he would choose but via an Assembly Center. The
Assembly Center was conceived as a part of the machinery for group evacuation.
The power to exclude includes the power to do it by force if necessary. And any
forcible measure must necessarily entail some degree of detention or restraint
whatever method of removal is selected. But whichever view is taken, it results
in holding that the order under which petitioner was convicted was valid.
It
is said that we are dealing here with the case of imprisonment of a citizen in
a concentration camp solely because of his ancestry, without evidence or
inquiry concerning his loyalty and good disposition towards the United States.
Our task would be simple, our duty clear, were this a case involving the
imprisonment of a loyal citizen in a concentration camp because of racial prejudice.
Regardless of the true nature of the assembly and relocation centers-and we
deem it unjustifiable to call them concentration camps with all the ugly
connotations that term implies-we are dealing specifically with nothing but an
exclusion order. To cast this case into outlines of racial prejudice, without
reference to the real military dangers which were presented, merely confuses
the issue. Korematsu was not excluded from the Military Area because of
hostility to him or his race. He was excluded because we are at war with the
Japanese Empire, because the properly constituted military authorities feared
an invasion of our West Coast and felt constrained to take proper security
measures, because they decided that the military urgency of the situation
demanded that all citizens of Japanese ancestry be segregated from the West
Coast temporarily, and finally, because Congress, reposing its confidence in
this time of war in our military leaders-as inevitably it must-determined that
they should have the power to do just this. There was evidence of disloyalty on
the part of some, the military authorities considered that the need for [323 U.S. 214, 224] action was great, and time was short. We
cannot-by availing ourselves of the calm perspective
of hindsight-now say that at that time these actions were unjustified.
AFFIRMED.
Footnotes
1140 F.2d 289.
2Hearings before the Subcommittee on the National
War Agencies Appropriation Bill for 1945, Part II, 608-726; Final Report,
Japanese Evacuation from the West Coast, 1942, 309-327; Hearings before the
Committee on Immigration and Naturalization, House of Representatives, 78th
Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals
of the United States, pp. 37-42, 49-58.
Mr. Justice FRANKFURTER, concurring.
According
to my reading of Civilian Exclusion Order No. 34, it was an offense for
Korematsu to be found in Military Area No. 1, the territory wherein he was
previously living, except within the bounds of the established Assembly Center
of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor
is clear and not contradictory. They put upon Korematsu the obligation to leave
Military Area No. 1, but only by the method prescribed in the instructions,
i.e., by reporting to the Assembly Center. I am unable to see how the legal
considerations that led to the decision in Kiyoshi
Hirabayashi v. United States, 320 U.S. 81,
63 S.Ct. 1375, fail to sustain the military order which made the conduct now in
controversy a crime. And so I join in the opinion of the Court, but should like
to add a few words of my own.
The
provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part
of the Constitution as provisions looking to a nation at peace. And we have had
recent occasion to quote approvingly the statement of former Chief Justice
Hughes that the war power of the Government is 'the power to wage war
successfully.' Hirabayashi v. United States, supra, 320 U.S. at
page 93, 63 S.Ct. at page 1382 and see Home
Bldg. & L. Ass'n v. Blaisdell,
290 U.S.
398, 426, 54 S.Ct. 231, 235, 88 A.L.R. 1481. Therefore, the validity of
action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action
in times of peace would be lawless. To talk about a military order that
expresses an allowable judgment of war needs by those entrusted with the duty
of conducting war as 'an [323 U.S. 214, 225] unconstitutional
order' is to suffuse a part of the Constitution with an atmosphere of
unconstitutionality. The respective spheres of action of military authorities
and of judges are of course very different. But within their sphere, military
authorities are no more outside the bounds of obedience to the Constitution
than are judges within theirs. 'The war power of the United States, like its
other powers ... is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S.
146, 156, 40 S.Ct. 106, 108. To recognize that military orders are
'reasonably expedient military precautions' in time of war and yet to deny them
constitutional legitimacy makes of the Constitution an instrument for dialectic
subtleties not reasonably to be attributed to the hard-headed Framers, of whom
a majority had had actual participation in war. If a military order such as
that under review does not transcend the means appropriate for conducting war,
such action by the military is as constitutional as would be any authorized
action by the Interstate Commerce Commission within the limits of the
constitutional power to regulate commerce. And being an exercise of the war
power explicitly granted by the Constitution for safeguarding the national life
by prosecuting war effectively, I find nothing in the Constitution which denies
to Congress the power to enforce such a valid military order by making its violation
an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson,
154 U.S. 447,
14 S.Ct. 1125; Id., 155 U.S. 3,
15 S.Ct. 19, and Monongahela Bridge Co.
v. United States, 216 U.S. 177,
30 S.Ct. 356. 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.
Mr. Justice ROBERTS and Mr. Justice
Murphy dissented. (Dissents omittd)
Mr.
Justice JACKSON, dissenting.
Korematsu was born on our soil, of parents born in Japan.
The Constitution makes him a citizen of the United States by nativity and a
citizen of California by [323 U.S. 214, 243] residence. No claim is made that
he is not loyal to this country. There is no suggestion that apart from the
matter involved here he is not law- abiding and well disposed. Korematsu,
however, has been convicted of an act not commonly a crime. It consists merely
of being present in the state whereof he is a citizen, near the place where he
was born, and where all his life he has lived.
Even more unusual is the series of military orders which
made this conduct a crime. They forbid such a one to remain, and they also
forbid him to leave. They were so drawn that the only way Korematsu could avoid
violation was to give himself up to the military
authority. This meant submission to custody, examination, and transportation
out of the territory, to be followed by indeterminate confinement in detention
camps.
A citizen's presence in the locality, however, was made a
crime only if his parents were of Japanese birth. Had Korematsu been one of
four-the others being, say, a German alien enemy, an Italian alien enemy, and a
citizen of American-born ancestors, convicted of treason but out on parole-
only Korematsu's presence would have violated the order. The difference between
their innocence and his crime would result, not from anything he did, said, or
thought, different than they, but only in that he was born of different racial
stock.
Now, if any fundamental assumption underlies our system, it
is that guilt is personal and not inheritable. Even if all of one's antecedents
had been convicted of treason, the Constitution forbids its penalties to be
visited upon him, for it provides that 'no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life of the Person
attained.' Article 3, 3, cl. 2. But here is an attempt
to make an otherwise innocent act a crime merely because this prisoner is the
son of parents as to whom he had no choice, and belongs to a race from which
there is no way to resign. If Congress in peace-time legislation should [323
U.S. 214, 244] enact such a criminal law, I should suppose this Court would
refuse to enforce it.
But 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. And it is said that if the military commander had reasonable
military grounds for promulgating the orders, they are constitutional and
become law, and the Court is required to enforce them. There are several
reasons why I cannot subscribe to this doctrine.
It would be impracticable and dangerous idealism to expect
or insist that each specific military command in an area of probable operations
will conform to conventional tests of constitutionality. When an area is so
beset that it must be put under military control at all, the paramount
consideration is that its measures be successful, rather than legal. The armed
services must protect a society, not merely its Constitution. The very essence
of the military job is to marshal physical force, to remove every obstacle to
its effectiveness, to give it every strategic advantage. Defense measures will
not, and often should not, be held within the limits that bind civil authority
in peace. No court can require such a commander in such circumstances to act as
a reasonable man; he may be unreasonably cautious and exacting. Perhaps he
should be. But a commander in temporarily focusing the life of a community on
defense is carrying out a military program; he is not making law in the sense
the courts know the term. He issues orders, and they may have a certain
authority as military commands, although they may be very bad as constitutional
law.
But if we cannot confine military expedients by the
Constitution, neither would I distort the Constitution to approve all that the
military may deem expedient. This is [323 U.S. 214, 245] what the Court appears
to be doing, whether consciously or not. I cannot say, from any evidence before
me, that the orders of General DeWitt were not reasonably expedient military
precautions, nor could I say that they were. But even if they were permissible
military procedures, I deny that it follows that they are constitutional. If,
as the Court holds, it does follow, then we may as well say that any military
order will be constitutional and have done with it.
The limitation under which courts
always will labor in examining the necessity for a military order are
illustrated by this case. How does the Court know that these orders have a
reasonable basis in necessity? No evidence whatever on that subject has been
taken by this or any other court. There is sharp controversy as to the
credibility of the DeWitt report. So the Court, having no real evidence before
it, has no choice but to accept General DeWitt's own unsworn, self-serving
statement, untested by any cross-examination, that what he did was reasonable.
And thus it will always be when courts try to look into the reasonableness of a
military order.
In the very nature of things military decisions are not
susceptible of intelligent judicial appraisal. They do not pretend to rest on
evidence, but are made on information that often would not be admissible and on
assumptions that could not be proved. Information in support of an order could
not be disclosed to courts without danger that it would reach the enemy.
Neither can courts act on communications made in confidence. Hence courts can
never have any real alternative to accepting the mere declaration of the
authority that issued the order that it was reasonably necessary from a
military viewpoint.
Much is said of the danger to liberty from the Army program
for deporting and detaining these citizens of Japanese extraction. But a
judicial construction of the due process clause that will sustain this order is
a farm more [323 U.S. 214, 246] subtle blow to liberty than the promulgation of
the order itself. A military order, however unconstitutional, is not apt to
last longer than the military emergency. Even during that period a succeeding
commander may revoke it all. But once a judicial opinion rationalizes such an
order to show that it conforms to the Constitution, or rather rationalizes the
Constitution to show that the Constitution sanctions such an order, the Court
for all time has validated the principle of racial discrimination in criminal
procedure and of transplanting American citizens. 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. Every repetition imbeds that principle more
deeply in our law and thinking and expands it to new purposes. All who observe
the work of courts are familiar with what Judge Cardozo described as 'the
tendency of a principle to expand itself to the limit of its logic.'1
A military commander may overstep the bounds of
constitutionality, and it is an incident. But if we review and approve, that
passing incident becomes the doctrine of the Constitution. There it has a
generative power of its own, and all that it creates will be in its own image.
Nothing better illustrates this danger than does the Court's opinion in this
case.
It argues that we are bound to uphold the conviction of
Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct.
1375, when we sustained these orders in so far as they applied a curfew
requirement to a citizen of Japanese ancestry. I think we should learn
something from that experience.
In that case we were urged to consider only that curfew
feature, that being all that technically was involved, because it was the only
count necessary to sustain Hirabayashi's conviction
and sentence. We yielded, and the Chief Justice guarded the opinion as
carefully as language [323 U.S. 214, 247] will do. He said: 'Our investigation
here does not go beyond the inquiry whether, in the light of all the relevant
circumstances preceding and attending their promulgation, the challenged orders
and statute afforded a reasonable basis for the action taken in imposing the
curfew.' 320 U.S. at page 101, 63 S.Ct. at page 1386.
'We decide only the issue as we have defined it-we decide only that the curfew
order as applied, and at the time it was applied, was within the boundaries of
the war power.' 320 U.S. at page 102, 63 S.Ct. at page 1386.
And again: 'It is unnecessary to consider whether or to what extent such
findings would support orders differing from the curfew order.' 320 U.S. at page 105, 63 S.Ct. at page 1387. (Italics
supplied.) However, in spite of our limiting words we did validate a
discrimination of the basis of ancestry for mild and temporary deprivation of
liberty. Now the principle of racial discrimination is pushed from support of
mild measures to very harsh ones, and from temporary
deprivations to indeterminate ones. And the precedent which it is said requires
us to do so is Hirabayashi. The Court is now saying
that in Hirabayashi we did decide the very things we
there said we were not deciding. Because we said that these citizens could be
made to stay in their homes during the hours of dark, it is said we must
require them to leave home entirely; and if that, we are told they may also be
taken into custody for deportation; and if that, it is argued they may also be
held for some undetermined time in detention camps. How far the principle of
this case would be extended before plausible reasons would play out, I do not
know.
I should hold that a civil court cannot be made to enforce
an order which violates constitutional limitations even if it is a reasonable
exercise of military authority. The courts can exercise only the judicial
power, can apply only law, and must abide by the Constitution, or they cease to
be civil courts and become instruments of military policy. [323 U.S. 214, 248]
Of course the existence of a military power resting on force, so vagrant, so
centralized, so necessarily heedless of the individual, is an inherent threat
to liberty. But I would not lead people to rely on this Court for a review that
seems to me wholly delusive. The military reasonableness of these orders can
only be determined by military superiors. If the people ever let command of the
war power fall into irresponsible and unscrupulous hands, the courts wield no
power equal to its restraint. The chief restraint upon those who command the
physical forces of the country, in the future as in the past, must be their
responsibility to the political judgments of their contemporaries and to the
moral judgments of history.
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 I would reverse the judgment and
discharge the prisoner.
Footnotes
1Nature of the Judicial Process, p. 51.