In response to:
Trump’s Travel Bans—Look Beyond the Text from the May 11, 2017 issue
To the Editors:
David Cole’s interesting piece “Trump’s Travel Bans—Look Beyond the Text” [NYR, May 11] repeats a common mistake about the Supreme Court’s decision in Korematsu v. United States: that the Court’s decision “upheld the internment” of people in the United States because of their Japanese ancestry. Any review of the decision, at 323 U.S. 214 (1944), will reveal that the Korematsu decision upheld the exclusion of such persons from designated zones on the West Coast, not their internment. Another decision the year before had upheld a conviction for such a person violating the imposed curfew, Hirabayashi v. United States, 320 U.S. 81 (1943). Finally, in the only Supreme Court decision I am aware of that addressed internment, the Court, on the same day that it decided Korematsu, struck down an order of internment (although not on constitutional grounds), ruling that there was no basis for keeping loyal evacuees of Japanese ancestry in custody on the ground of community hostility: Ex parte Endo, 323 U.S. 283 (1944).
I am sure David Cole is or has been aware of these distinctions and that the mischaracterization of Korematsu was a slip or a simplification. And to be fair, the Court in Korematsu was asked to treat the exclusion and internment issues as inextricably intertwined. The Court declined to do so and declined to address internment in the circumstances of that case. That decision not to rule on internment may have had some substantial practical effect, but it is nevertheless different from a decision upholding internment. The mischaracterization has become so common that it deserves correction.
John Townsend Rich
David Cole replies:
John Rich is correct that the Supreme Court in Korematsu v. United States upheld only the order excluding those of Japanese descent from the West Coast, and not the detention that inevitably followed upon exclusion. He is also correct that in Ex parte Endo, the Court held that where the military conceded that an individual so excluded was loyal and posed no risk of espionage or sabotage, that individual could not continue to be detained. I appreciate the correction.
But it is worth noting that the reason this distinction has been largely lost to history is that it was a technicality to begin with. Korematsu’s lawyers argued, with justification, that the Court could not separate exclusion from detention because all those excluded were in fact subsequently detained. Under the army’s policy, and in reality, exclusion led inevitably to internment. The dissenters in Korematsu agreed, and the majority offered no convincing justification for blinding itself to the practical reality that exclusion and detention were inextricably linked.
Moreover, the Court’s reasoning in Korematsu, which upheld the constitutionality of mass exclusion on the basis of racial and ethnic identity because the military assertedly could not tell the loyal from the disloyal, would also, as a logical matter, extend to detention. So the Court has been justly criticized both for accepting a wholly unsupported racial generalization and failing to acknowledge candidly the practical significance of its decision; it gave constitutional blessing to the internment of 110,000 people simply because they were of Japanese ancestry.
The Endo decision mitigated the damage, but only slightly. Unlike Korematsu, which granted constitutional authority to the executive to discriminate on the basis of race and ethnicity, Endo merely interpreted the exclusion order to provide that, if and when the military decides that an individual poses no threat, he or she should be released. It did not question in any way the military’s assertion that, until it was able to determine that someone was harmless, the individual should be presumed guilty because of his or her Japanese ancestry and detained. And as Endo rested on an interpretation of the exclusion order, not on constitutional principle, it could be overridden at will by the executive.