Learning Activity: Korematsu v. United States (1944)- Jackson's Dissenting Opinion
Provide students with summaries of Justice Robert Jackson’s dissenting opinion in the case, Korematsu v. United States (1944). Ask students to explain why Justice Jackson disagreed with the majority opinion on the Supreme Court. Ask: What reasons did Justice Jackson give for wanting to free Fred Korematsu? What legal basis did Jackson cite for wanting to discharge Fred Korematsu? What constitutional issues did Jackson raise in his dissenting opinion? Have students discuss how Justice Jackson’s opinion applies to current fears over government restrictions on civil rights as a result of terrorist attacks on the United States.
Supreme Court of the United States
Korematsu v. United States (1944)
Justice Robert Jackson, Dissenting Opinion
October 11, 12, 1944
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 (birth), and a citizen of California by 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 (well behaved). 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 (indefinite) 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 (United States resident but not a citizen) 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.... 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 peacetime legislation, should enact such a criminal law, I should suppose this Court would refuse to enforce it....
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction (birth). But a judicial construction (decision or interpretation) of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation (carrying out) of the order itself.... once a judicial opinion rationalizes (interprets) 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 (rule) 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 (reasonable) claim of an urgent need....
If the people ever let command of the war power fall into irresponsible and unscrupulous (unprincipled) hands, the courts wield (have) no power equal to its restraint....
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 (order) that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.