Friday, November 19, 2004
korematsu notes.
this case is significant to my obsession with majors v abell, because it is an example of a case of passing strict scrutiny, the kiss of death standard.
it's from 60 years ago, during wartime, and has been much criticized.
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 Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, we sustained a conviction obtained for violation of the curfew order.
gravest imminent danger to the public safety ...
definite and close relationship ...
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....
roberts dissenting:
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. ...
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.
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.
[it's one thing to exclude, but another order ordered tose excluded to report to concentration camps. facts matter.]
murphy dissenting
Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.... 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.' 4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'
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....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.
Jackson dissenting (and i have 9 minutes before the library closes)
this case is significant to my obsession with majors v abell, because it is an example of a case of passing strict scrutiny, the kiss of death standard.
it's from 60 years ago, during wartime, and has been much criticized.
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 Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, we sustained a conviction obtained for violation of the curfew order.
gravest imminent danger to the public safety ...
definite and close relationship ...
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....
roberts dissenting:
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. ...
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.
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.
[it's one thing to exclude, but another order ordered tose excluded to report to concentration camps. facts matter.]
murphy dissenting
Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.... 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.' 4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'
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....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.
Jackson dissenting (and i have 9 minutes before the library closes)
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