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Wartime and the Bill of Rights

Although more than 60 percent of those ordered to evacuate were U.S. citizens, none had a hearing or trial before the government locked them up in relocation camps. Once in the camps, however, the government asked them to sign a loyalty oath to the United States. Most did, but about 4 percent refused, protesting how they had been treated. The government classified these individuals as “disloyal.”

The Korematsu Case

Fred Korematsu was a Nisei born in California and an American citizen. When General DeWitt ordered everyone of Japanese ancestry in the Western United States to report to assembly centers in 1942, Korematsu refused to report for internment. He changed his name and even underwent eyelid surgery to make him look less Japanese. Government authorities finally found him and arrested him for remaining in a restricted military area.

A federal judge sentenced Korematsu to five years' probation. The military immediately took him into custody and sent him to the relocation camp in Utah. The American Civil Liberties Union (ACLU) persuaded Korematsu to appeal his case.

Korematsu’s case reached the Supreme Court in October 1944. The government attorneys referred the constitutional war powers of Congress and the president, arguing that the military must take all steps necessary to wage war successfully. According to the government, the internment of all Japanese Issei and Nisei was a “military necessity.”

The government attorneys further argued that there was not enough time to hold hearings or trials to determine who was and was not loyal. The attorneys presented a report from General DeWitt, full of unproved rumors about Issei and Nisei disloyalty.

Attorneys representing Korematsu argued that there was no military necessity for imprisoning all persons of Japanese ancestry without a hearing or trial.

Korematsu’s attorneys showed that during the nearly four months between Pearl Harbor and General DeWitt’s first evacuation order, not one person of Japanese descent had been convicted of espionage or sabotage. The attorneys stated that instead of removing families from their homes, the government could have barred them from specific military and industrial sites.

Korematsu’s lawyers charged that General DeWitt was a racist, prejudiced against the ethnic Japanese.

The Supreme Court upheld Korematsu’s conviction. The majority ruled only on his refusal to leave a prohibited military area; they did not consider the constitutionality of the relocation camps themselves. The majority of judges fully accepted the views of General DeWitt, saying that Korematsu had not been forced from his home because of his race, but because of “the military urgency of the situation.”

Three of the justices vigorously dissented from the majority opinion, claiming that the government could not declare all members of a racial group guilty and imprison them.

Release and Compensation

When the Supreme Court made its Korematsu decision, the justices also decided another case that resulted in finally closing down the prison camps. The Supreme Court ruled that President Roosevelt’s executive order and the enforcement law passed by Congress only authorized the removal of the Issei and Nisei from military areas, not their imprisonment.

When the Issei and Nisei left the camps, the government granted them $25 each or $50 per family and train fare home. In 1948, Congress partially compensated them for the loss of their businesses or property.

In 1980, President Carter appointed a special commission to investigate the entire internment affair. The commission concluded that the decisions to remove ethnic Japanese to prison camps were based on “race prejudice, war hysteria, and a failure of political leadership.” In 1988, Congress apologized and granted compensation of $20,000 to each surviving prisoner.

Researchers later discovered that the government had withheld important facts at Korematsu’s trial. In 1984, a federal judge agreed that Korematsu probably did not get a fair trial and set aside his conviction.

A Proper Balance

During wartime, the Bill of Rights has often become less important to Americans than the need for national security. The problem in wartime is to achieve what Supreme Court Chief Justice William Rehnquist terms “a proper balance” between civil liberties and protection.

A few months after September 11, 2001, 82-year-old Fred Korematsu said that he never lost faith in the American system of justice. “You have to fight for your rights,” he declared. “Don’t be afraid.”


Source: Wartime and the Bill of Rights
© 2017 WWW.CRF-USA • Constitutional Rights Foundation

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