Document 1, written by Justice Robert A.

Jackson

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
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 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 them 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,
examinations, 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 other being, say a
German alien enemy, an Italian alien enemy, 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 attained.” But there 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 enact such a criminal law, I
should suppose this Court would refuse to enforce it.
A military order, however unconstitutional, is no 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.
…
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 in 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.
Document 2, written by Chief Justice Murphy:

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 war, we
must accord great respect and consideration to the judgements 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 neither has substance not support …
This forced exclusion was the result in good measure of this erroneous
assumption of racial guilt rather than bona fide military necessity is evidenced by
the Commanding General’s Final Report on the evacuation from the Pacific Coast
area. 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. 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 …
Questions:
1) Korematsu was an American Citizen. (True/False)
2) Korematsu lived on the west coast. (T/F)
3) Korematsu had been previously convicted. (T/F)
4) According the Justice Jackson, the military order was clearly written and the
military had ordered Korematsu to leave California. (T/F)
5) According the Justice Jackson, the Constitution allows the punishment of
the children of traitors. (T/F)
6) Justice Jackson is afraid that through military intervention the Supreme
Court declared racial segregation constitutional. (T/F)
7) Justice Murphy states that only the declaration of martial law allows the
military to violate constitutional rights. (T/F)
8) According to Justice Murphy, how many Japanese and U.S. citizens of
Japanese descent lived on the west coast?
9) Both judges, Justice Jackson and Justice Murphy, would tolerate
unconstitutional orders from the military under certain conditions. (T/F)
10) Justice Jackson and Justice Murphy agreed that Korematsu’s
confinement was unconstitutional. (T/F)