Today Californians celebrate the first Fred Korematsu Day of Civil Liberties and the Constitution. Represented by the American Civil Liberties Union, Korematsu challenged the constitutionality of relocating and interning Japanese Americans during World War II. Three Supreme Court Justices agreed with him; six did not, finding that the emergency of a World War justified allowing Congress to put civil liberties on the back burner (Korematsu v. US, 1944).
Korematsu’s challenge exacerbated rifts within the Japanese American community; large organizations like the Japanese American Citizen’s League were eager to prove their patriotism by cooperating with internment.
Maybe the arc of history really does bend toward justice; it’s certainly long. In 1980, President Jimmy Carter established a commission to investigate the internment of Japanese Americans during the war; in 1983, Korematsu’s conviction was vacated. In 1988, Congress apologized to the Japanese Americans for the internment, and the government paid (modest) compensation to those interned. In 1998, President Clinton awarded Korematsu the Presidential Medal of Freedom. More than fifty years later, we recognized courage and heroism in what we first saw as a crime.
We should derive more benefit from the vindication of Fred Korematsu more than he did. To do so, we need to draw lessons from the cause and the case that extend beyond Japanese Americans in World War II. This means, I think, paying close attention to discrimination on the basis of race justified by appeals to national security.
We should tell Fred Korematsu’s story in New York City, where the construction of an Islamic Center in lower Manhattan draws opposition. We should recall the history in Arizona, when the state passes a law mandating that police demand proof of citizenship from people who look like they might be undocumented.
And we should all think about how people learn. California Attorney General Earl Warren pressed for interning Japanese Americans immediately after Pearl Harbor, arguing that their presence in California represented a threat to civilian defense. Thirteen years later, as Chief Justice of the US Supreme Court, Warren organized the Court to issue unanimous decisions prohibiting racial segregation in the public schools. I want to think he learned from the past, including his own past.
Apparently, one of the justices Earl Warren had to persuade was Robert Jackson, one of the three dissenters in Korematsu. In dissent, Jackson wrote:
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.
Justice Jackson took a leave of absence from the Court to serve as as the chief US prosecutor during the Nuremberg war crimes trials, putting him in a very good position to think about a government’s use of race politics as a means of mobilization during moments of crisis.
Perhaps Korematsu Day will be an occasion for fireworks and picnics one day. Today, it seems like a good time for reflection.