U.S. Supreme Court Korematsu v. United States, 323
U.S. 214 (1944) Korematsu v. United
States No. 22 Argued October 11, 12,
1944 Decided December 18,
1944 323
U.S. 214 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH
CIRCUIT Syllabus 1. Civilian Exclusion Order No. 34 which, during a state of war
with Japan and as a protection against espionage and sabotage, was
promulgated by the Commanding General of the Western Defense
Command under authority of Executive Order No. 9066 and the Act of
March 21, 1942, and which directed the exclusion after May 9, 1942,
from a described West Coast military area of all persons of
Japanese ancestry, held constitutional as of the time it
was made and when the petitioner -- an American citizen of Japanese
descent whose home was in the described area -- violated it. P. 323 U. S.
219 .

															2. The provisions of other orders requiring persons of Japanese
ancestry to report to assembly centers and providing for the
detention of such persons in assembly and relocation centers were
separate, and their validity is not in issue in this proceeding. P. 323 U. S.
222 . Page 323 U. S. 215 3. Even though evacuation and detention in the assembly center
were inseparable, the order under which the petitioner was
convicted was nevertheless valid. P. 323 U. S.
223 .

															140 F.2d 289, affirmed.

															CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment
of conviction.

															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 Page 323 U. S. 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,
[ Footnote 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, 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 substantially Page 323 U. S. 217 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 Hirabayashi v. United
States, 320 U. S. 81 , 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 Page 323 U. S. 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, at p. 320 U. S.
99 ,

															". . . 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 Page 323 U. S. 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. [ Footnote 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 , 264 U. S. 547 ; Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 .
In doing so, we are not unmindful of the hardships imposed by it
upon a large group of American citizens. Cf. Ex parte
Kawato, 317 U. S. 69 , 317 U. S. 73 .
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 Page 323 U. S. 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 3 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 Page 323 U. S. 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. T he lawfulness of one does not
necessarily determine the lawfulness of the others. This is made
clear Page 323 U. S. 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 , 284 U. S. 304 .
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, post, p. 323 U. S. 283 ,
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 Page 323 U. S. 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 Page 323 U. S. 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. [ Footnote 1 ]

															140 F.2d 289.

															[ Footnote 2 ]

															Hearings 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 Hirabayashi v. United States, 320 U. S.
81 , 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, at 320 U. S. 93 , and see Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 426 .
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 Page 323 U. S. 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 , 251 U. S. 156 .
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 ; 155 U. S. 155 U.S.
3, and Monongahela Bridge Co. v. United States, 216 U. S. 177 . 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.

															I dissent, because I think the indisputable facts exhibit a
clear violation of Constitutional rights.

															This is not a case of keeping people off the streets at night,
as was Hirabayashi v. United States, 320 U. S.
81 , Page 323 U. S. 226 nor a case of temporary exclusion of a citizen from an area for
his own safety or that of the community, nor a case of offering him
an opportunity to go temporarily out of an area where his presence
might cause danger to himself or to his fellows. On the contrary,
it is the case of convicting a citizen as a punishment for not
submitting to imprisonment in a concentration camp, based on his
ancestry, and solely because of his ancestry, without evidence or
inquiry concerning his loyalty and good disposition towards the
United States. If this be a correct statement of the facts
disclosed by this record, and facts of which we take judicial
notice, I need hardly labor the conclusion that Constitutional
rights have been violated.

															The Government's argument, and the opinion of the court, in my
judgment, erroneously divide that which is single and indivisible,
and thus make the case appear as if the petitioner violated a
Military Order, sanctioned by Act of Congress, which excluded him
from his home by refusing voluntarily to leave, and so knowingly
and intentionally defying the order and the Act of Congress.

															The petitioner, a resident of San Leandro, Alameda County,
California, is a native of the United States of Japanese ancestry
who, according to the uncontradicted evidence, is a loyal citizen
of the nation.

															A chronological recitation of events will make it plain that the
petitioner's supposed offense did not, in truth, consist in his
refusal voluntarily to leave the area which included his home in
obedience to the order excluding him therefrom. Critical attention
must be given to the dates and sequence of events.

															December 8, 1941, the United States declared war on Japan.

															February 19, 1942, the President issued Executive Order No.
9066, [ Footnote 2/1 ] which, after
stating the reason for issuing the Page 323 U. S. 227 order as "protection against espionage and against sabotage to
national defense material, national defense premises, and national
defense utilities," provided that certain Military Commanders
might, in their discretion, "prescribe military areas" and define
their extent,

															"from which any or all persons may be excluded, and with respect
to which the right of any person to enter, remain in, or leave
shall be subject to whatever restrictions"

															the "Military Commander may impose in his discretion."

															February 20, 1942, Lieutenant General DeWitt was designated
Military Commander of the Western Defense Command embracing the
westernmost states of the Union -- about one-fourth of the total
area of the nation.

															March 2, 192, General DeWitt promulgated Public Proclamation No.
1, [ Footnote 2/2 ] which recites
that the entire Pacific Coast is "particularly subject to attack,
to attempted invasion . . . , and, in connection therewith, is
subject to espionage and acts of sabotage." It states that, "as a
matter of military necessity," certain military areas and zones are
established known as Military Areas Nos. 1 and 2. It adds that
"[s]uch persons or classes of persons as the situation may require"
will, by subsequent orders, "be excluded from all of Military Area
No. 1" and from certain zones in Military Area No. 2. Subsequent
proclamations were made which, together with Proclamation No. 1,
included in such areas and zones all of California, Washington,
Oregon, Idaho, Montana, Nevada and Utah, and the southern portion
of Arizona. The orders required that, if any person of Japanese,
German or Italian ancestry residing in Area No. 1 desired to change
his habitual residence, he must execute and deliver to the
authorities a Change of Residence Notice.

															San Leandro, the city of petitioner's residence, lies in
Military Area No. 1. Page 323 U. S. 228 On March 2, 1942, the petitioner, therefore, had notice that, by
Executive Order, the President, to prevent espionage and sabotage,
had authorized the Military to exclude him from certain areas and
to prevent his entering or leaving certain areas without
permission. He was on notice that his home city had been included,
by Military Order, in Area No. 1, and he was on notice further
that, at sometime in the future, the Military Commander would make
an order for the exclusion of certain persons, not described or
classified, from various zones including that, in which he
lived.

															March 21, 1942, Congress enacted [ Footnote 2/3 ] that anyone who knowingly

															"shall enter, remain in, leave, or commit any act in any
military area or military zone prescribed . . . by any military
commander . . . contrary to the restrictions applicable to any such
area or zone or contrary to the order of . . . any such military
commander"

															shall be guilty of a misdemeanor. This is the Act under which
the petitioner was charged.

															March 24, 1942, General DeWitt instituted the curfew for certain
areas within his command, by an order the validity of which was
sustained in Hirabayashi v. United States, supra. March 24, 1942, General DeWitt began to issue a series of
exclusion orders relating to specified areas.

															March 27, 1942, by Proclamation No. 4, [ Footnote 2/4 ] the General recited that

															"it is necessary, in order to provide for the welfare and to
insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to
restrict and regulate such migration, and ordered that, as of March
29, 1942,"

															"all alien Japanese and persons of Japanese ancestry who are
within the limits of Military Area No. 1, be and they are
hereby Page 323 U. S. 229 prohibited from leaving that area for any purpose until and to
the extent that a future proclamation or order of this headquarters
shall so permit or direct. [ Footnote
2/5 ]"

															No order had been made excluding the petitioner from the area in
which he lived. By Proclamation No. 4, he was, after March 29,
1942, confined to the limits of Area No. 1. If the Executive Order
No. 9066 and the Act of Congress meant what they said, to leave
that area, in the face of Proclamation No. 4, would be to commit a
misdemeanor.

															May 3, 1942, General DeWitt issued Civilian Exclusion Order No.
34 [ Footnote 2/6 ] providing that,
after 12 o'clock May 8, 1942, all persons of Japanese ancestry,
both alien and nonalien, were to be excluded from a described
portion of Military Area No. 1, which included the County of
Alameda, California. The order required a responsible member of
each family and each individual living alone to report, at a time
set, at a Civil Control Station for instructions to go to an
Assembly Center, and added that any person failing to comply with
the provisions of the order who was found in the described area
after the date set would be liable to prosecution under the Act of
March 21, 1942, supra. It is important to note that the
order, by its express terms, had no application to persons within
the bounds "of an established Assembly Center pursuant to
instructions from this Headquarters . . ." The obvious purpose of
the orders made, taken together, was to drive all citizens of
Japanese ancestry into Assembly Centers within the zones of their
residence, under pain of criminal prosecution. Page 323 U. S. 230 The predicament in which the petitioner thus found himself was
this: he was forbidden, by Military Order, to leave the zone in
which he lived; he was forbidden, by Military Order, after a date
fixed, to be found within that zone unless he were in an Assembly
Center located in that zone. General DeWitt's report to the
Secretary of War concerning the programme of evacuation and
relocation of Japanese makes it entirely clear, if it were
necessary to refer to that document -- and, in the light of the
above recitation, I think it is not, -- that an Assembly Center was
a euphemism for a prison. No person within such a center was
permitted to leave except by Military Order.

															In the dilemma that he dare not remain in his home, or
voluntarily leave the area, without incurring criminal penalties,
and that the only way he could avoid punishment was to go to an
Assembly Center and submit himself to military imprisonment, the
petitioner did nothing.

															June 12, 1942, an Information was filed in the District Court
for Northern California charging a violation of the Act of March
21, 1942, in that petitioner had knowingly remained within the area
covered by Exclusion Order No. 34. A demurrer to the information
having been overruled, the petitioner was tried under a plea of not
guilty, and convicted. Sentence was suspended, and he was placed on
probation for five years. We know, however, in the light of the
foregoing recitation, that he was at once taken into military
custody and lodged in an Assembly Center. We further know that, on
March 18, 1942, the President had promulgated Executive Order No.
9102, [ Footnote 2/7 ] establishing
the War Relocation Authority under which so-called Relocation
Centers, a euphemism for concentration camps, were established
pursuant to cooperation between the military authorities of the
Western Defense Command and the Relocation Authority, and that the
petitioner has Page 323 U. S. 231 been confined either in an Assembly Center within the zone in
which he had lived or has been removed to a Relocation Center
where, as the facts disclosed in Ex parte Endo ( post, p. 323 U. S. 283 )
demonstrate, he was illegally held in custody.

															The Government has argued this case as if the only order
outstanding at the time the petitioner was arrested and informed
against was Exclusion Order No. 34, ordering him to leave the area
in which he resided, which was the basis of the information against
him. That argument has evidently been effective. The opinion refers
to the Hirabayashi case, supra, to show that this
court has sustained the validity of a curfew order in an emergency.
The argument, then, is that exclusion from a given area of danger,
while somewhat more sweeping than a curfew regulation, is of the
same nature -- a temporary expedient made necessary by a sudden
emergency. This, I think, is a substitution of an hypothetical case
for the case actually before the court. I might agree with the
court's disposition of the hypothetical case. [ Footnote 2/8 ] The liberty of every American citizen
freely to come and to go must frequently, in the face of sudden
danger, be temporarily limited or suspended. The civil authorities
must often resort to the expedient of excluding citizens
temporarily from a locality. The drawing of fire lines in the case
of a conflagration, the removal of persons from the area where a
pestilence has broken out, are familiar examples. If the exclusion
worked by Exclusion Order No. 34 were of that nature, the Hirabayashi case would be authority for sustaining it. Page 323 U. S. 232 But the facts above recited, and those set forth in Ex parte
Endo, supra, show that the exclusion was but a part of an
over-all plan for forceable detention. This case cannot, therefore,
be decided on any such narrow ground as the possible validity of a
Temporary Exclusion Order under which the residents of an area are
given an opportunity to leave and go elsewhere in their native land
outside the boundaries of a military area. To make the case turn on
any such assumption is to shut our eyes to reality.

															As I have said above, the petitioner, prior to his arrest, was
faced with two diametrically contradictory orders given sanction by
the Act of Congress of March 21, 1942. The earlier of those orders
made him a criminal if he left the zone in which he resided; the
later made him a criminal if he did not leave.

															I had supposed that, if a citizen was constrained by two laws,
or two orders having the force of law, and obedience to one would
violate the other, to punish him for violation of either would deny
him due process of law. And I had supposed that, under these
circumstances, a conviction for violating one of the orders could
not stand.

															We cannot shut our eyes to the fact that, had the petitioner
attempted to violate Proclamation No. 4 and leave the military area
in which he lived, he would have been arrested and tried and
convicted for violation of Proclamation No. 4. The two conflicting
orders, one which commanded him to stay and the other which
commanded him to go, were nothing but a cleverly devised trap to
accomplish the real purpose of the military authority, which was to
lock him up in a concentration camp. The only course by which the
petitioner could avoid arrest and prosecution was to go to that
camp according to instructions to be given him when he reported at
a Civil Control Center. We know that is the fact. Why should we set
up a figmentary and artificial situation, instead of addressing
ourselves to the actualities of the case? Page 323 U. S. 233 These stark realities are met by the suggestion that it is
lawful to compel an American citizen to submit to illegal
imprisonment on the assumption that he might, after going to the
Assembly Center, apply for his discharge by suing out a writ of
habeas corpus, as was done in the Endo case, supra. The answer, of course, is that, where he was
subject to two conflicting laws, he was not bound, in order to
escape violation of one or the other, to surrender his liberty for
any period. Nor will it do to say that the detention was a
necessary part of the process of evacuation, and so we are here
concerned only with the validity of the latter.

															Again, it is a new doctrine of constitutional law that one
indicted for disobedience to an unconstitutional statute may not
defend on the ground of the invalidity of the statute, but must
obey it though he knows it is no law, and, after he has suffered
the disgrace of conviction and lost his liberty by sentence, then,
and not before, seek, from within prison walls, to test the
validity of the law.

															Moreover, it is beside the point to rest decision in part on the
fact that the petitioner, for his own reasons, wished to remain in
his home. If, as is the fact, he was constrained so to do, it is
indeed a narrow application of constitutional rights to ignore the
order which constrained him in order to sustain his conviction for
violation of another contradictory order.

															I would reverse the judgment of conviction.

															[ Footnote 2/1 ]

															17 Fed.Reg. 1407.

															[ Footnote 2/2 ]

															7 Fed.Reg. 2320

															[ Footnote 2/3 ]

															56 Stat. 173.

															[ Footnote 2/4 ]

															7 Fed.Reg. 2601.

															[ Footnote 2/5 ]

															The italics in the quotation are mine. The use of the word
"voluntarily" exhibits a grim irony probably not lost on petitioner
and others in like case. Either so or its use was a disingenuous
attempt to camouflage the compulsion which was to be applied.

															[ Footnote 2/6 ]

															7 Fed.Reg. 3967.

															[ Footnote 2/7 ]

															7 Fed.Reg. 2165.

															[ Footnote 2/8 ]

															My agreement would depend on the definition and application of
the terms "temporary" and "emergency." No pronouncement of the
commanding officer can, in my view, preclude judicial inquiry and
determination whether an emergency ever existed and whether, if so,
it remained at the date of the restraint out of which the
litigation arose. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543 .

															MR. JUSTICE MURPHY, dissenting.

															This exclusion of "all persons of Japanese ancestry, both alien
and non-alien," from the Pacific Coast area on a plea of military
necessity in the absence of martial law ought not to be approved.
Such exclusion goes over "the very brink of constitutional power,"
and falls into the ugly abyss of racism.

															In dealing with matters relating to the prosecution and progress
of a war, we must accord great respect and consideration Page 323 U. S. 234 to the judgments of the military authorities who are on the
scene and who have full knowledge of the military facts. The scope
of their discretion must, as a matter of necessity and common
sense, be wide. And their judgments ought not to be overruled
lightly by those whose training and duties ill-equip them to deal
intelligently with matters so vital to the physical security of the
nation.

															At the same time, however, it is essential that there be
definite limits to military discretion, especially where martial
law has not been declared. Individuals must not be left
impoverished of their constitutional rights on a plea of military
necessity that has neither substance nor support. Thus, like other
claims conflicting with the asserted constitutional rights of the
individual, the military claim must subject itself to the judicial
process of having its reasonableness determined and its conflicts
with other interests reconciled.

															"What are the allowable limits of military discretion, and
whether or not they have been overstepped in a particular case, are
judicial questions." Sterling v. Constantin, 287 U.
S. 378 , 287 U. S.
401 .

															The judicial test of whether the Government, on a plea of
military necessity, can validly deprive an individual of any of his
constitutional rights is whether the deprivation is reasonably
related to a public danger that is so "immediate, imminent, and
impending" as not to admit of delay and not to permit the
intervention of ordinary constitutional processes to alleviate the
danger. United States v.
Russell , 13 Wall. 623, 80 U. S.
627 -628; Mitchell v.
Harmony , 13 How. 115, 54 U. S.
134 -135; Raymond v. Thomas, 91 U. S.
712 , 91 U. S. 716 .
Civilian Exclusion Order No. 34, banishing from a prescribed area
of the Pacific Coast "all persons of Japanese ancestry, both alien
and non-alien," clearly does not meet that test. Being an obvious
racial discrimination, the Page 323 U. S. 235 order deprives all those within its scope of the equal
protection of the laws as guaranteed by the Fifth Amendment. It
further deprives these individuals of their constitutional rights
to live and work where they will, to establish a home where they
choose and to move about freely. In excommunicating them without
benefit of hearings, this order also deprives them of all their
constitutional rights to procedural due process. Yet no reasonable
relation to an "immediate, imminent, and impending" public danger
is evident to support this racial restriction, which is one of the
most sweeping and complete deprivations of constitutional rights in
the history of this nation in the absence of martial law.

															It must be conceded that the military and naval situation in the
spring of 1942 was such as to generate a very real fear of invasion
of the Pacific Coast, accompanied by fears of sabotage and
espionage in that area. The military command was therefore
justified in adopting all reasonable means necessary to combat
these dangers. In adjudging the military action taken in light of
the then apparent dangers, we must not erect too high or too
meticulous standards; it is necessary only that the action have
some reasonable relation to the removal of the dangers of invasion,
sabotage and espionage. But the exclusion, either temporarily or
permanently, of all persons with Japanese blood in their veins has
no such reasonable relation. And that relation is lacking because
the exclusion order necessarily must rely for its reasonableness
upon the assumption that all persons of Japanese ancestry may have
a dangerous tendency to commit sabotage and espionage and to aid
our Japanese enemy in other ways. It is difficult to believe that
reason, logic, or experience could be marshalled in support of such
an assumption.

															That this forced exclusion was the result in good measure of
this erroneous assumption of racial guilt, rather than Page 323 U. S. 236 bona fide military necessity is evidenced by the
Commanding General's Final Report on the evacuation from the
Pacific Coast area. [ Footnote 3/1 ]
In it, he refers to all individuals of Japanese descent as
"subversive," as belonging to "an enemy race" whose "racial strains
are undiluted," and as constituting "over 112,000 potential enemies
. . . at large today" along the Pacific Coast. [ Footnote 3/2 ] In support of this blanket
condemnation of all persons of Japanese descent, however, no
reliable evidence is cited to show that such individuals were
generally disloyal, [ Footnote 3/3 ]
or had generally so conducted themselves in this area as to
constitute a special menace to defense installations or war
industries, or had otherwise, by their behavior, furnished
reasonable ground for their exclusion as a group.

															Justification for the exclusion is sought, instead, mainly upon
questionable racial and sociological grounds not Page 323 U. S. 237 ordinarily within the realm of expert military judgment,
supplemented by certain semi-military conclusions drawn from an
unwarranted use of circumstantial evidence. Individuals of Japanese
ancestry are condemned because they are said to be "a large,
unassimilated, tightly knit racial group, bound to an enemy nation
by strong ties of race, culture, custom and religion." [ Footnote 3/4 ] They are claimed to be given
to "emperor worshipping ceremonies," [ Footnote 3/5 ] and to "dual citizenship." [ Footnote 3/6 ] Japanese language schools and
allegedly pro-Japanese organizations are cited as evidence of
possible group disloyalty, [ Footnote
3/7 ] together with facts as to Page 323 U. S. 238 certain persons being educated and residing at length in Japan.
[ Footnote 3/8 ] It is intimated that
many of these individuals deliberately resided "adjacent to
strategic points," thus enabling them

															"to carry into execution a tremendous program of sabotage on a
mass scale should any considerable number of them have been
inclined to do so. [ Footnote
3/9 ]"

															The need for protective custody is also asserted. The report
refers, without identity, to "numerous incidents of violence," as
well as to other admittedly unverified or cumulative incidents.
From this, plus certain other events not shown to have been
connected with the Japanese Americans, it is concluded that the
"situation was fraught with danger to the Japanese population
itself," and that the general public "was ready to take matters
into its own hands." [ Footnote
3/10 ] Finally, it is intimated, though not directly Page 323 U. S. 239 charged or proved, that persons of Japanese ancestry were
responsible for three minor isolated shellings and bombings of the
Pacific Coast area, [ Footnote
3/11 ] as well as for unidentified radio transmissions and night
signaling.

															The main reasons relied upon by those responsible for the forced
evacuation, therefore, do not prove a reasonable relation between
the group characteristics of Japanese Americans and the dangers of
invasion, sabotage and espionage. The reasons appear, instead, to
be largely an accumulation of much of the misinformation,
half-truths and insinuations that for years have been directed
against Japanese Americans by people with racial and economic
prejudices -- the same people who have been among the foremost
advocates of the evacuation. [ Footnote 3/12 ] A military judgment Page 323 U. S. 240 based upon such racial and sociological considerations is not
entitled to the great weight ordinarily given the judgments based
upon strictly military considerations. Especially is this so when
every charge relative to race, religion, culture, geographical
location, and legal and economic status has been substantially
discredited by independent studies made by experts in these
matters. [ Footnote 3/13 ]

															The military necessity which is essential to the validity of the
evacuation order thus resolves itself into a few intimations that
certain individuals actively aided the enemy, from which it is
inferred that the entire group of Japanese Americans could not be
trusted to be or remain loyal to the United States. No one denies,
of course, that there were some disloyal persons of Japanese
descent on the Pacific Coast who did all in their power to aid
their ancestral land. Similar disloyal activities have been engaged
in by many persons of German, Italian and even more pioneer stock
in our country. But to infer that examples of individual disloyalty
prove group disloyalty and justify discriminatory action against
the entire group is to deny that, under our system of law,
individual guilt is the sole basis for deprivation of rights.
Moreover, this inference, which is at the very heart of the
evacuation orders, has been used in support of the abhorrent and
despicable treatment of minority groups by the dictatorial
tyrannies which this nation is now pledged to destroy. To give
constitutional sanction to that inference in this case, however
well intentioned may have been the military command on the Pacific
Coast, is to adopt one of the cruelest of the rationales used by
our enemies to destroy the dignity of the individual and to
encourage and open the door to discriminatory actions against other
minority groups in the passions of tomorrow. Page 323 U. S. 241 No adequate reason is given for the failure to treat these
Japanese Americans on an individual basis by holding investigations
and hearings to separate the loyal from the disloyal, as was done
in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted
merely that the loyalties of this group "were unknown and time was
of the essence." [ Footnote 3/14 ]
Yet nearly four months elapsed after Pearl Harbor before the first
exclusion order was issued; nearly eight months went by until the
last order was issued, and the last of these "subversive" persons
was not actually removed until almost eleven months had elapsed.
Leisure and deliberation seem to have been more of the essence than
speed. And the fact that conditions were not such as to warrant a
declaration of martial law adds strength to the belief that the
factors of time and military necessity were not as urgent as they
have been represented to be.

															Moreover, there was no adequate proof that the Federal Bureau of
Investigation and the military and naval intelligence services did
not have the espionage and sabotage situation well in hand during
this long period. Nor is there any denial of the fact that not one
person of Japanese ancestry was accused or convicted of espionage
or sabotage after Pearl Harbor while they were still free,
[ Footnote 3/15 ] a fact which is
some evidence of the loyalty of the vast majority of these
individuals and of the effectiveness of the established methods of
combatting these evils. It Page 323 U. S. 242 seems incredible that, under these circumstances, it would have
been impossible to hold loyalty hearings for the mere 112,000
persons involved -- or at least for the 70,000 American citizens --
especially when a large part of this number represented children
and elderly men and women. [ Footnote
3/16 ] Any inconvenience that may have accompanied an attempt to
conform to procedural due process cannot be said to justify
violations of constitutional rights of individuals.

															I dissent, therefore, from this legalization of racism. Racial
discrimination in any form and in any degree has no justifiable
part whatever in our democratic way of life. It is unattractive in
any setting, but it is utterly revolting among a free people who
have embraced the principles set forth in the Constitution of the
United States. All residents of this nation are kin in some way by
blood or culture to a foreign land. Yet they are primarily and
necessarily a part of the new and distinct civilization of the
United States. They must, accordingly, be treated at all times as
the heirs of the American experiment, and as entitled to all the
rights and freedoms guaranteed by the Constitution.

															[ Footnote 3/1 ]

															Final Report, Japanese Evacuation from the West Coast, 1942, by
Lt.Gen. J. L. DeWitt. This report is dated June 5, 1943, but was
not made public until January, 1944.

															[ Footnote 3/2 ]

															Further evidence of the Commanding General's attitude toward
individuals of Japanese ancestry is revealed in his voluntary
testimony on April 13, 1943, in San Francisco before the House
Naval Affairs Subcommittee to Investigate Congested Areas, Part 3,
pp. 739 40 (78th Cong., 1st Sess.):

															"I don't want any of them [persons of Japanese ancestry] here.
They are a dangerous element. There is no way to determine their
loyalty. The west coast contains too many vital installations
essential to the defense of the country to allow any Japanese on
this coast. . . . The danger of the Japanese was, and is now -- if
they are permitted to come back -- espionage and sabotage. It makes
no difference whether he is an American citizen, he is still a
Japanese. American citizenship does not necessarily determine
loyalty. . . . But we must worry about the Japanese all the time
until he is wiped off the map. Sabotage and espionage will make
problems as long as he is allowed in this area. . . ."

															[ Footnote 3/3 ]

															The Final Report, p. 9, casts a cloud of suspicion over the
entire group by saying that, "while it was believed that some were loyal, it was known that many were not."
(Italics added.)

															[ Footnote 3/4 ]

															Final Report, p. vii; see also pp. 9, 17. To the extent
that assimilation is a problem, it is largely the result of certain
social customs and laws of the American general public. Studies
demonstrate that persons of Japanese descent are readily
susceptible to integration in our society if given the opportunity.
Strong, The Second-Generation Japanese Problem (1934); Smith,
Americans in Process (1937); Mears, Resident Orientals on the
American Pacific Coast (1928); Millis, The Japanese Problem in the
United States (1942). The failure to accomplish an ideal status of
assimilation, therefore, cannot be charged to the refusal of these
persons to become Americanized, or to their loyalty to Japan. And
the retention by some persons of certain customs and religious
practices of their ancestors is no criterion of their loyalty to
the United States.

															[ Footnote 3/5 ]

															Final Report, pp. 10-11. No sinister correlation between the
emperor worshipping activities and disloyalty to America was
shown.

															[ Footnote 3/6 ]

															Final Report, p. 22. The charge of "dual citizenship" springs
from a misunderstanding of the simple fact that Japan, in the past,
used the doctrine of jus sanguinis, as she had a right to
do under international law, and claimed as her citizens all persons
born of Japanese nationals wherever located. Japan has greatly
modified this doctrine, however, by allowing all Japanese born in
the United States to renounce any claim of dual citizenship and by
releasing her claim as to all born in the United States after 1925. See Freeman, "Genesis, Exodus, and Leviticus: Genealogy,
Evacuation, and Law," 28 Cornell L.Q. 414, 447-8, and authorities
there cited; McWilliams, Prejudice, 123-4 (1944).

															[ Footnote 3/7 ]

															Final Report, pp. 12-13. We have had various foreign language
schools in this country for generations without considering their
existence as ground for racial discrimination. No subversive
activities or teachings have been shown in connection with the
Japanese schools. McWilliams, Prejudice, 121-3 (1944).

															[ Footnote 3/8 ]

															Final Report, pp. 13-15. Such persons constitute a very small
part of the entire group, and most of them belong to the Kibei
movement -- the actions and membership of which are well known to
our Government agents.

															[ Footnote 3/9 ]

															Final Report, p. 10; see also pp. vii, 9, 15-17. This
insinuation, based purely upon speculation and circumstantial
evidence, completely overlooks the fact that the main geographic
pattern of Japanese population was fixed many years ago with
reference to economic, social and soil conditions. Limited
occupational outlets and social pressures encouraged their
concentration near their initial points of entry on the Pacific
Coast. That these points may now be near certain strategic military
and industrial areas is no proof of a diabolical purpose on the
part of Japanese Americans. See McWilliams, Prejudice,
119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.),
59-93.

															[ Footnote 3/10 ]

															Final Report, pp. 8-9. This dangerous doctrine of protective
custody, as proved by recent European history, should have
absolutely no standing as an excuse for the deprivation of the
rights of minority groups. See House Report No.1911 (77th
Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th
Cong., & Sess.) 145-7. In this instance, moreover, there are
only two minor instances of violence on record involving persons of
Japanese ancestry. McWilliams, What About Our Japanese-Americans?
Public Affairs Pamphlets, No. 91, p. 8 (1944).

															[ Footnote 3/11 ]

															Final Report, p. 18. One of these incidents (the reputed
dropping of incendiary bombs on an Oregon forest) occurred on Sept.
9, 1942 -- a considerable time after the Japanese Americans had
been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.

															[ Footnote 3/12 ]

															Special interest groups were extremely active in applying
pressure for mass evacuation. See House Report No. 2124
(77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 128 (1944).
Mr. Austin E. Anson, managing secretary of the Salinas Vegetable
Grower-Shipper Association, has frankly admitted that

															"We're charged with wanting to get rid of the Japs for selfish
reasons. . . . We do. It's a question of whether the white man
lives on the Pacific Coast or the brown men. They came into this
valley to work, and they stayed to take over. . . . They undersell
the white man in the markets. . . . They work their women and
children while the white farmer has to pay wages for his help. If
all the Japs were removed tomorrow, we'd never miss them in two
weeks, because the white farmers can take over and produce
everything the Jap grows. And we don't want them back when the war
ends, either."

															Quoted by Taylor in his article "The People Nobody Wants," 214
Sat.Eve.Post 24, 66 (May 9, 1942).

															[ Footnote 3/13 ] See 323
U.S. 214 fn3/4|>notes 4-12, supra. [ Footnote 3/14 ]

															Final Report, p. vii; see also p. 18.

															[ Footnote 3/15 ]

															The Final Report, p. 34, makes the amazing statement that, as of
February 14, 1942, "The very fact that no sabotage has taken place
to date is a disturbing and confirming indication that such action
will be taken." Apparently, in the minds of the military leaders,
there was no way that the Japanese Americans could escape the
suspicion of sabotage.

															[ Footnote 3/16 ]

															During a period of six months, the 112 alien tribunals or
hearing boards set up by the British Government shortly after the
outbreak of the present war summoned and examined approximately
74,000 German and Austrian aliens. These tribunals determined
whether each individual enemy alien was a real enemy of the Allies
or only a "friendly enemy." About 64,000 were freed from internment
and from any special restrictions, and only 2,000 were interned.
Kempner, "The Enemy Alien Problem in the Present War," 34
Amer.Journ. of Int.Law 443, 414-416; House Report No. 2124 (77th
Cong., 2d Sess.), 280-281.

															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 Page 323 U. S. 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 attainted." 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 Page 323 U. S. 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. That is Page 323 U. S. 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 far more Page 323 U. S. 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." * 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 Hirabayashi v. United
States, 320 U. S. 81 , when
we sustained these orders insofar 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 the 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 Page 323 U. S. 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 320 U. S.
101 .

															"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 320 U. S. 102 .
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 320 U. S. 105 .
(Italics supplied.) However, in spite of our limiting words, we did
validate a discrimination on 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. Page 323 U. S. 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.

															* Nature of the Judicial Process, p. 51.