A Conversation on the Constitution: The Importance of the Japanese Internment Cases
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A Conversation on the Constitution: The Importance of the Japanese Internment Cases

November 7, 2019

FS: This video is a
project of the Annenberg Foundation Trust at
Sunnylands. ♪ MUSIC ♪ ALYSSA HINCHMAN: Good
afternoon Justices, my name is
Alyssa Hinchman, and I also attend Sandra
Day O’Connor High School in Phoenix, Arizona. My
grandparents and great grand … grandparents
were actually interned in the Rohwer and Poston
Camps during World War II. ♪ MUSIC ♪ ALYSSA HINCHMAN: And
I would like to know, what are the most important
things that we should know about the Korematsu
and Hirabayashi decisions? JUSTICE SANDRA DAY O’CONNOR:
As you know, the Hirabayashi decision
involved prosecution … of someone for a
misdemeanor who didn’t obey a military curfew
order. You have to be out of a certain area,
they were near the coast, by 6:00 PM and he was
alleged to have violated that. And the Court
unanimously sustained that conviction and order.
And Korematsu was a very different case because it
involved orders that sent to camps, people of
Japanese descent, although they were U.S.
citizens and held them in those camps for some
period of time because they were considered
potentially of danger to the United States because
of their Japanese origin. That case was one
where the orders were upheld by a divided
So we look at that Ken Burns’
thing I was talking about. They show a man
of Japanese ancestry who fought in the Nisei Battalion
for the United States. NARRATOR: Early in
1944, the 442nd received its orders to
head overseas. Tim Tokuno from the
Sacramento Valley was granted leave to go and say
goodbye to his parents. TIM TOKUNO: They gave
us a 15-day furlough, so I went back to
visit my folks at Topaz, Utah. As I
entered the compound, the MP captain
stopped me and said, sergeant have you got
any liquor in your bag? I said, yes, I have a fifth
of whiskey to take to my folks. The captain
shook his head and said, sorry sergeant,
no liquor allowed in camp. It’s a hell of
a war isn’t it, that’s what he told me, a
hell of a war isn’t it? I said, it sure
is Captain, look, you got machine
guns on all four corners, with live ammunition,
and you’ve got the guards patrolling the parameter
and here I’m going into combat with my folks
behind barbed wire. I said, it is a hell
of a war. JUSTICE BREYER: So … so how did
this come about? And the answer is, people were frightened.
They were frightened… JUSTICE O’CONNOR:
I think they were, Congress, members of
Congress were very concerned and afraid of an
attack from the Japanese, from the Pacific side and
there was just an element of fear running through the
country which prompted the… JUSTICE BREYER: But what about…
JUSTICE O’CONNOR: … legislation. JUSTICE BREYER: … what about this Court? JUSTICE O’CONNOR: But
what about the courts? JUSTICE BREYER: The
one question I would ask there, when you
read these opinions, is what is it that the
Court is worried about? What are they struggling
with? They start off asking a question which
is an important question, but they didn’t
get it quite right, but it’s a question that
will be true right today. The Constitution is
not a suicide pact, that’s what
Jackson said. So, we have to admit that you
can do things in wartime that you couldn’t do in
peacetime in respect to civil liberties. And
that then led them to say, the majority, well we’re
not going to second guess the military and the
President and that’s what they think is necessary, end of
the matter. Well … dissent. JUSTICE ANTHONY KENNEDY:
You ask what, you ask what the case teaches, but one of the things it
teaches us is that … in war we sometimes take
actions which are more extreme than necessary.
In war our judgment is blurred. In war our
fears are high. You know, in California … and
Oregon and Washington, there are thousands of
miles of coastlines, or over a thousand miles
of coastline. Many of the landholdings on the
coastline were … by Japanese because it
was pretty scraggily, there was not a lot of
water there. So there was a tremendous amount of
landownership by Japanese all over the coastline.
California was terrified. We had two destroyers …
defending the West Coast because of what had
happened to us at Pearl Harbor. One of the most
important people … in the history of the
Exclusion Orders that were issued in Korematsu, his
picture is in this room, Earl Warren. What was Earl
Warren in … the year 1942? What did he do,
do you know? He was the attorney general of
the State of California, became governor in 1943.
And he was terrified and he gave an interview
to Walter Lippmann, a famous
American columnist, representing really the
establishment newspapers, and suggested
that maybe they, the Japanese, be excluded.
This came from one of the great civil liberties
justices in the whole history of this Court. As attorney
general he recommended it. JUSTICE O’CONNOR: He regretted it later.
JUSTICE BREYER: He regretted it. JUSTICE O’CONNOR: And the one
thing that concerns me is that in the
Korematsu case, we were not
detaining Japanese, we were detaining American
citizens of Japanese ancestry and we are a
nation of immigrants and I think we are all
Americans. And because we are of Japanese ancestry
doesn’t mean that we are Japanese and that seems to
me a very key point. And I’m not a bit sure that
any court in this country would sustain that judgment
in Korematsu today. JUSTICE KENNEDY: Well in
fact, Justice O’Connor wrote an opinion
in a case called Adarand, in which she
referred to … Korematsu. Korematsu has a test, we
can ask you about what the test sets forth
… and Justice, I forget exactly
your language, but you said it was a
surprising and astounding and most … most
unfortunate result and so we have an opinion
from this Court, it was a majority opinion,
an opinion for the Court by Justice O’Connor
… criticizing … criticizing Korematsu.
But the point is, war tends to blur your
judgment and courts sit in order to make sure
that … judgment is more clear. And as you
know, there were, as Justice
O’Connor referred to, there were dissents in
Korematsu and there was commentary at the time
from law review articles, very critical of
this decision, at the time. So there were
some … some more sober, more … thoughtful …
more careful people that were against this at the
time, at the time. STUDENT: My grandmother
was interned in Jerome, Arkansas and
my grandfather moved to Colorado to
avoid internment. STUDENT: Both my grandmother
and grandfather were both interned at Manzanar Camp
… along with their seven siblings and …
they’re all Nisei, second generation. ♪ MUSIC ♪ STUDENT: My question
today is, since Korematsu was
not overturned, is it still
precedent today? JUSTICE O’CONNOR: Well of
course it’s precedent, it’s out there, and it
hasn’t been directly overruled, but it’s been
criticized greatly and … I don’t want these
Justices to have to answer your question unless
they really want to, they may be faced with it.
But I’m retired and I’m willing to answer it and
I would predict that it wouldn’t be affirmed in
the same way today. I think enough questions
have been raised that we can expect a more critical
look would be taken, but who knows? JUSTICE KENNEDY:
Justice Black used a very important
phrase in Korematsu, a test that he suggested.
What did he say? How … how is he going to
look at this … this regulation, this …
this military order which discriminated on
the basis of race, discriminated on
the basis of race, as Justice O’Connor
said, not citizenship, race. How did he say we’re
going to evaluate this, what was the phrase that
he used? He said it must … meet very
strict examination. JUSTICE O’CONNOR: Pressing
public necessity, were some of
his words. JUSTICE KENNEDY: And he
used the word strict examination from which we get
the word strict scrutiny. The odd thing is that this
standard, strict scrutiny, which started in Korematsu
didn’t come out in a way that protected … that
protected the minority. They used the right test,
but they came out not protecting the
minorities. JUSTICE O’CONNOR: Strange result. JUSTICE KENNEDY: Very … very
odd, very odd. JUSTICE O’CONNOR: But it’s so
touching today that we have, in this room,
asking questions, young people
whose grandparents, I guess it were, actually
were interned. JUSTICE BREYER: I … I suspect
what the Court was worried about there is they’re
very much afraid of setting a precedent
that at some future time, the President will feel he
cannot protect the country when it’s really needed.
So the answer to that, which I think today we
would find satisfactory, was given by Murphy, one
of the Justices you don’t hear much
about. But he said, there isn’t a
shred of evidence, so it won’t take some
tough decision binding the President. All you’re
going to have to say is you have to have some
evidence that there’s really a problem. I
thought that ends up looking at it with
hindsight as the most powerful opinion. So Jackson
wrote a very good dissent. JUSTICE KENNEDY: Did
the English have a problem? In
… in England, they … they were
at war two years, almost, before we were?
And they were very close to Germany and Austria and
there were many German and Austrian citizens
living in England and it’s referred to in … in
the opinion. What did the English do, did they lock
up all the Germans and the Austrians, put them in a
camp? What did they do? Do you know? It’s … it’s
mentioned in the Korematsu … in the Murphy …
in the Murphy opinion, the Murphy dissent.
They held hearings, individualized
hearings. You’re Japanese, you have Japanese
parents or you’re German, you have German parents.
What is your occupation here? Do you … are
you ready to support the English war effort? Could
you fight against your countrymen? Are
there 75,000 people? The English held
hearings and their … their island
was, they thought, going to be swallowed up
by Hitler’s army. And they … had time to have
hearings for 75,000 people. JUSTICE O’CONNOR: And
Great Britain doesn’t even have a written Constitution
and Bill of Rights like we do, but they managed
a little better, I’d say. JUSTICE KENNEDY:
And they, I forget, I think they ended
up detaining 2,000… JUSTICE BREYER: …I
think Brown vs. Board of Education is
relevant here, I assume you’ve read that
or know what it’s about. But this is now 10
years, 20 years, 15 years before that and
the country is filled with racial criteria. The South
is segregated and the Court has never said
that’s unconstitutional. So if you talk about the
British and the Italians and the Germans, they
didn’t lock up or send out of California, the enemy
aliens who were of German or Italian ancestry. It
was those of … Japanese ancestry and that is a
world partly why I think we would never
get, I don’t think, and you keep your
fingers crossed, but why I think we
wouldn’t get into that situation is that the
cases leading up to Brown in the race area and the
cases decided after Brown and what’s happened to
the country over 50 years, has shown that it’s one
country. And the law embodies that assumption which it didn’t
at the time of Korematsu. JUSTICE KENNEDY: Did
your grandparents tell you about any of
the laws that were on the books of the State
of California in the 1940s? STUDENT: Not really. JUSTICE KENNEDY: There were laws
that Japanese … Japanese Nationals could not own
land. It was right there in the law, the
State of California; racial discrimination for
landownership. So … one of the things about your
Constitution you … can ask is … how does it
evolve? … Do we have some prejudices now
that we can’t see; is there some injustice
now that we’re blind to? Our parents
… Earl Warren, the … people that were
living in California were … good people. But they
had a blindness. Are we blind today to
certain things, injustices? That’s … one of
the reasons you read cases. ♪ MUSIC ♪ STUDENT: My question
is how do the Constitution and the
courts decide how to balance individual
rights and national security in
times of war? JUSTICE O’CONNOR:
These cases have posed exactly those
questions and as we said at the outset …
the other branches of government, the
courts and the Congress, have been generally
willing to give lots of leeway during times of war
to our Chief Executive. And the Judicial Branch
has been willing to give considerable leeway to both
branches when war is declared. JUSTICE BREYER: …
I think that’s the difficult question because
if you don’t give enough leeway to the Executive,
maybe it becomes a suicide pact. If you give too much
leeway to the Executive, they’ll do anything they
want and that might not be good because they might
cut everything in favor of security and against
individual rights. So how can a judge who’s sitting
in a room like this, and he’s not out there
in the streets or in the battlefield or doesn’t
have the responsibilities of the Executive, how
can a judge know when the Executive goes
too far? Well here, it’s not a perfect
answer, but we do have a mechanism, in fact we have
several. And the best part of the mechanism,
though they get a very bad reputation, there’s one
group of people who get a bad reputation with the public
and they don’t really, well we’re prejudiced,
but we think they don’t deserve it as much as they
get it. And they’re very helpful, they’re
called lawyers, and the lawyers … the
lawyers in a case like this, will put the
government to the test because they’ll say,
representing the person who’s injured or put into
camp or wherever. They say, “Why,” and they don’t
want a general answer, they want some evidence.
And if the person whom they’re talking to says,
oh it’s too secret to tell you, they can
always say, okay, tell the judge. Look at it
privately so we can see if it really has to be
secret. And if they say, okay, there
really is a problem, the lawyer asks the
second question which is, “Why not?” And why not is
why not do it this way, where maybe your client
doesn’t have to be put in restriction, he just has
to have a curfew. Maybe not a curfew,
maybe something less restrictive, let’s think
of a less restrictive way to do it. The lawyers,
with those questions, can help the judges decide
whether the Executive Branch has really
exceeded a leeway that he, they already
have, have they gone really too far
in this instance? JUSTICE KENNEDY:
How did Justice Jackson answer
your question? JUSTICE BREYER: If I simplify
that in my own mind, very clearly and simply,
I think Jackson’s saying, don’t worry so much
about whether your rule, Court, protecting
civil liberties, hamstrings the Executive.
Stop worrying about that. If they feel they have to
violate the law in order to save the country,
they’ll do it. So don’t worry, they’ll just
violate the Constitution. Let them; that was 1942.
The Army would have done it anyway. We should
say it violates the law, now that’s a very
attractive position held today, by a lot of
civil libertarians. But, it rivals another view;
don’t put the President or the Executive in the
position of violating the Constitution or feeling
they have to do it because ultimately they may make
the wrong decision at the time and wreck
the country, or more importantly, you
will seriously hurt the rule of law. Don’t say the
President had to violate the Constitution or a
lot of other people might think it’s okay for them to
violate the Constitution. JUSTICE O’CONNOR:
We had Lincoln, was sitting at the White
House here in Washington, DC. He was surrounded on
three and a half sides by … Confederate troops
and military action, hoping to take the
Capitol. He was trying to bring new troops into the
… to protect the Capitol from the North and the
railroad line went through Baltimore, Maryland. And
there were two stations, the troops had to get off
as they came South at one station and then go
on foot to the second station, to get
to Washington, DC. And they were
being attacked by Southern sympathizers as they
made that trip. Southern sympathizers were clipping
the telegraph lines to cut off communications
with Washington, DC. And it was a
terrible situation, and President Lincoln
ordered that Southern sympathizers in that area,
be arrested on his orders. And the military started
just arresting people, even prominent citizens.
One of then turned out to be a legislator in
Maryland and had him held at Fort McHenry or
other forts and just said, keep them there ’til I say
okay. And some of those people arrested tried
to get a writ of habeas corpus in the
federal court, to have a hearing before
a court on whether they could be held in jail
without any … individual suspicion. And the
petition went to the local federal judge who just
happened to be the Chief Justice of this Court,
Roger Taney. Roger Taney was at that time the Chief
Justice and he signed an order saying bring
this person to the, to my Courtroom on date X.
And he gave that order to the commander of the
military camp. And the commander sent
word back, “No, because the President has
ordered me to keep this man here in jail.” And
that was the position that President Lincoln took,
that he would not obey an order of the Chief Justice
to bring one of these prisoners before the
Court. And the President just went his
own way on it, but he thought that the
situation in Washington, DC was critical and he
didn’t know if he could hold the nation together.
And so it was a very different time, but it’s a
very interesting example of where a President
defied an order of the Chief Justice in order to try to
secure the nation’s Capitol. JUSTICE KENNEDY: Let me ask
you, does the President have the power to suspend
the writ of habeas corpus? STUDENT: Article 1, Section 9,
says the privilege of the writ of habeas corpus shall not
be suspended unless when in cases of
rebellion or invasion, the public safety may
require it. And Article 1’s about the
powers of the, of Congress, not
about the President. JUSTICE KENNEDY: Well, it
doesn’t say Congress, does it? STUDENT: No, but it… JUSTICE KENNEDY:
Suppose Congress isn’t in session? We
know that the habeas corpus is not …
absolute in times of the public emergency. In the
situation that Justice O’Connor describes,
President Lincoln comes to you, you’re his
attorney, and he says, now Congress
isn’t in session, I’ve got to do something,
this Justice wants me to bring … a
Southern sympathizer, I think he is, is causing
tremendous problems and I’m, I’m not going, I
don’t have time to do that, I’m
leaving him in jail. STUDENT: I guess
the President would have the right to do
that because he would… JUSTICE KENNEDY: Well now
you’re changing your mind? STUDENT: I mean, I don’t
think the President has the right to do that if
Congress is in session, but if Congress, it
wasn’t in session, I … I guess the President
has the, I don’t really know. JUSTICE KENNEDY:
Well the Court… JUSTICE BREYER: Nor do I,
nor does anyone… JUSTICE O’CONNOR: I don’t think
anybody does, it’s alright. JUSTICE KENNEDY: But
you see the importance of consultation, you see the
importance of the President and the Congress both … being
political branches of the government,
cooperating, thinking, reasoning things out so
that the Constitution is observed and … protected
even in … times of great urgency. And Lincoln
was very good about consulting, about writing the
reasons for what … he did. JUSTICE BREYER: He
felt guilty because he gave the famous speech
which you can look up … something along
the lines of, shall all the laws
but one go unenforced, so that that one
remains in power, in effect, because he was
thinking all the laws will not go enforced because
we’ll destroy the Union. JUSTICE O’CONNOR: That’s
what he was thinking at the time that he
entered that order. JUSTICE BREYER: That’s right. ♪ MUSIC ♪ STUDENT: Are there rights
that can be suspended in times of war and if
so, what are they? JUSTICE O’CONNOR:
Are there rights that can be suspended
in times of war? Well, we’ve had a couple
of examples already; the right to choose
where you live and to live freely was
suspended wasn’t it, in Korematsu for people of
Japanese origin. And the right to get up and walk
around freely wherever you want, was
suspended in Hirabayashi, by a military order. So
you know you’ve got two examples right
in front of you, and I guess there are
many others as well. JUSTICE BREYER: But you’ve
just talked about habeas corpus, the Constitution
speaks about that. But the more normal thing and this
doesn’t help particularly, but it is I think the more
normal way the judges will think about this, a lot of
words in the Constitution are quite indefinite as
to their content. See, the 4th Amendment, it
doesn’t say that policemen can never go into your
house without a warrant. It says that the policeman
cannot engage in an unreasonable search
and seizure. The 14th Amendment
speaks of liberty, but it doesn’t quite say
what that liberty is. The 1st Amendment says that
Congress shall not pass a law that abridges
the freedom of speech, but what is the freedom
of speech? If you have, in time of peace, a
policeman who’s on the street and he sees a woman
being dragged into an apartment house screaming,
is he going to stop and wait for a warrant? Well
I should hope not and the law will support him in
that action because it’s reasonable, given the
circumstance. So in war, there often are new
circumstances of a special kind and that’s why so
often you see the judges asking, well given
the circumstances, is this limitation and
definition a limiting definition of a right?
Is it called for by these circumstances? A question
that’s very hard to answer often and we say
it’s easy in Korematsu; they got it wrong because
we’re looking at it with hindsight and we each
would like to think if we were there, we would
have even written better dissents, that’s what
we’d like to think. And of course the interesting
thing about history is you never know really what it
was like at the time. And that’s why
Justice Kennedy says, are there things going
on right today that when people look back
at us, they’ll say, how could they
be so blind? JUSTICE KENNEDY: … Why are
independent courts important? STUDENT: Because people
have different opinions on different things, I mean,
sometimes need to look at things from a
different point of view. JUSTICE KENNEDY:
Alright, now suppose during war,
because this responds to
your question, suppose during the
war the President said, I’ve got military courts,
I want military courts to be in charge
of this state, be in charge of this …
region. Is that proper, Civil War of the United
States? I want military courts in
Ohio. The rule is, does anybody know what the
rule is? The rule is if the civil
courts can be open, you must go to the civil
courts. If they can’t be because the enemy’s
in control or active hostilities are going on,
then you can use military courts. So that’s a
balance that the law says, Ex parte Milligan is
the name of that case, that’s a balance that the
Court has come to. You can use military courts
sometimes if the civil courts are unavailable,
reasonable enough. JUSTICE BREYER: I’ll go back for
one second because this is making me change my mind
about something. What is the most interesting thing
about Korematsu? Now I think, at the moment,
having listened to this discussion, that maybe the
most important thing about Korematsu is
each of us thinks, if we had it in
the Court today, it’s a racial criteria,
a racial criteria. They didn’t do it to the
Japanese in Hawaii, they didn’t do it
to the Germans, they didn’t do it to
the Italians … and immediately red flags
would go up a mile high. And you’d look
back at that and say, oh my goodness,
that really is, they have to have
unbelievable evidence to sustain this and
they don’t have any, alright? But now wait,
this attitude you have in our minds and
in your minds, because of action people
took in 1950s and 1960s and 1970s. And peoples
in the country took the action to fight the racial
criteria and they changed not only the judge’s
mind, the judge’s wouldn’t, opinion wouldn’t have
lasted five minutes if President Eisenhower had
not decided to send the 101st Airborne
Division to Little Rock, Arkansas, where the
Governor was standing in the schoolhouse door with
the state militia designed to block the entry of
those black children. And you know why he
sent the 101st, see that doesn’t resonate
with you. You start talking to me and those a
little older even about the 101st
Airborne, my goodness, that was the division
that went in on D-Day, the toughest airborne
division in the American Army and he purposely
picked that division because of its symbolic
value. And he wanted to say everything about
America is in favor of the integration and
following the law, you see? Now,
it’s him, yes, but it’s also millions of
Americans who were willing to say, I’m going to take
this issue on. It’s not just the judges. So
I think I’d look at Korematsu and say to you
who are in high school, read this history. Don’t
forget the history of the United States of
America because there were millions of people just
like you who were willing to take on some
of these issues, who were willing to
fight them under law, but not just in the
courts. It requires a lot of support to get those
interpretations of the Constitution that
we now have today. And as we all have
said, this is ongoing. JUSTICE KENNEDY: I
remember the outbreak of World War II,
I lived in Sacramento, California.
My father was an attorney, he had
clients that were Japanese, they were on
a remote … they were remote from the city, they
were on a ranch and I used to go out and play with
… the boy who was my age, when my father
was … with his parents working out their problem.
And one day he came to my house suddenly,
unannounced and he had his favorite toy.
His favorite toy, he could never touch,
it was a little Samurai warrior in a glass case
and it was in his room. But, but that was his toy,
but he didn’t touch it. And he was crying,
tears came down, and he gave me the, he
gave the little soldier. And I’ll never forget
it. I knew something was wrong; I didn’t understand
what was wrong. But what was wrong was … was that
he was being sent to a relocation camp and my
father was an attorney and was outraged by
this. And so I, I knew this
problem from a very, very young age and
I never forgot it. ♪ MUSIC ♪ JUSTICE KENNEDY:
Korematsu, Fred Korematsu is a study
in courage. ♪ MUSIC ♪

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