When The Laws Were Silent


The flavor of Black’s opinion is caught in its concluding passage: “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. . . . There was evidence of disloyalty on the part of some, the military authorities considered that the need for 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.”

Murphy criticized the military for lumping together with a disloyal few of Japanese ancestry all the others against whom there had been no such showing. Jackson said that the Court was simply in no position to evaluate the government’s claim of military necessity: “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 . . . . 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.”

But in the case of Endo , argued and decided at the same time as Korematsu , the Court reached quite a different result. Mitsuye Endo had submitted to an evacuation order and been removed first to the Tule Lake Relocation Center in the Cascade Mountains just south of the CaliforniaOregon border and then to another relocation center in Utah. She sued out a writ of habeas corpus, claiming that she was a loyal citizen against whom no charge had been made and that she was therefore entitled to her relief. The government agreed that she was a loyal citizen and not charged with any offense. The Court decided that under these circumstances Endo was entitled to be released from confinement. The presidential order and the act of Congress confirming it spoke of evacuation from a military zone but said nothing of detention after the evacuation. While the initial evacuation had been justified in terms of the defense facilities on the West Coast, the detention of a loyal person of Japanese ancestry after the evacuation had taken place was not reasonably necessary to prevent sabotage or espionage. Two members of the Court wrote separately, but all agreed with the result.


Although the Court based its reasoning in Endo on the provisions of the act of Congress and the Executive Order, and therefore Congress and the President would have been free to change those to provide for detention, the Court’s opinion strongly hinted at constitutional difficulties if that were to be done. And, it should be noted, the military position of the United States was much more favorable in the fall of 1944 than it had been in the spring of 1942. In the Pacific the U.S. Navy won the Battle of Leyte Gulf in October, and American forces were moving steadily closer to the Japanese homeland. There was neither a military need nor a public demand for further restrictions on Americans of Japanese descent, and the entire program was promptly terminated only two weeks after the decision in the Endo case.

In defense of the military, it should be pointed out that these officials were not entrusted with the protection of anyone’s civil liberty.

There is a certain disingenuousness in this sequence of three opinions— Hirabayashi , Korematsu , and Endo . There was no reason to think that Gordon Hirabayashi and Fred Korematsu were any less loyal to the United States than was Mitsuye Endo. Presumably they would have been entitled to relief from detention upon the same showing as that made by Endo. But even had Hirabayashi tried to raise that question in his case, he would have failed, for the Court chose to confine itself to the curfew issue. It was not until we were clearly winning the war that the Court came around to this view in Endo . The process illustrates in a rough way the Latin maxim Inter arma silent leges (in time of war the laws are silent).