During World War II, Congress
enacted Civilian Restrictive Order No. 1 (8 Fed. Reg. 982), which gave the military authority to exclude
citizens of Japanese ancestry from areas that were deemed critical to
national defense and potentially vulnerable to espionage.
It didn't require any
evidence that there was a security risk. The law was based solely on
race and national origin.
The military started moving
Japanese-Americans off the West Coast into concentration camps.
Over 100,000 were moved.
Korematsu (who had been born
in the US) refused to go. He was arrested and charged with violating the
law.
The Trial Court convicted
Korematsu. He appealed.
The Appellate Court upheld the
conviction. Korematsu appealed.
The US Supreme Court upheld
the conviction.
The US Supreme Court noted
that laws that create race-based classification are automatically
suspect, and will not be considered constitutional unless the government
can show an extremely important reason for the law, and show that the goal cannot be achieved through
any less discriminatory alternative.
That is known as the strict
scrutiny standard.
In this case, the Court
found that the law did meet the strict scrutiny standard, and so was constitutional.
"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 a lot of
deference to Congress at the time, because a war was going on.
In a dissent it was argued
that not one single case of espionage by a Japanese-American was known,
and therefore there was no compelling reason for the blanket order to move
100,000 to camps.
In the dissent's opinion, a
much more narrow law targeting on those acting suspiciously would have
sufficed. Therefore the blanket law should not meet strict scrutiny.
This case was the first to
define the strict scrutiny
standard. Although the Court found that the law met the standard and was
therefore constitutional, they later used the standard to overturn a large
number of racially discriminatory laws.
For example, see Loving
v. Virginia (388 U.S. 1 (1967)).
Note that this case turned on
the Due Process Clause of the 5th
Amendment, not the Equal Protection Clause of the 14th Amendment
because the 14th Amendment
only applies to the States, and was not 'reverse-incorporated' to apply to
the Federal government until ten years later in Bolling v.
Sharpe (347 U.S. 497 (1954)).
