Esquire: We know where this can go

The parallels between Trump's campaign rhetoric, his travel ban, and the darkest parts of our country's history are clear. The Supreme Court should take that seriously.

BY CHARLES P. PIERCE  APR 25, 2018

WASHINGTON – One day long ago, when she was in high school, Karen Korematsu was doing that half-listening thing you do in high school where one of your classmates is giving a book report when she heard something that snapped her attention like a bowstring. Her friend's report was on a book called Concentration Camps USA, and she was talking about the internment of Japanese citizens during World War II, as black a mark on American history (and on constitutional law) as any other. Karen's attention heard a name she recognized.

It was her father’s.

“My parents were waiting until they thought I was old enough to know about it,” she said. “You have to understand—there was a code of silence about those days. There was shame and there was embarrassment. Nobody talked about it. People lost homes. They lost marriages. Some of them lost their lives and then, do you know what they did at the end of the war, when they sent all those people home? They gave them $25 and a bus ticket.”

Karen’s father, Fred Korematsu, was born in Oakland, California in 1919. His parents had come to this country from Japan in 1905. In 1940, Fred was called up for military service, but he was rejected by the Navy for health reasons. He became a welder, working in the shipyards in California. He lost one job before Pearl Harbor. After Pearl Harbor, he lost everything. Then, in the wake of the attack, when a local military official forbade all Japanese citizens in the area from leaving, Fred Korematsu refused to obey the order and got arrested. Eventually, he ended up in a concentration camp in Utah.

He fought his case through the courts all through World War II until, in 1944, in a decision called Korematsu v. U.S., a 6-3 majority of the Supreme Court said that, while the decision to intern Japanese citizens was constitutionally dubious, it was justified because of wartime necessity. Writing for the majority, Justice Hugo Black said:

"It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order.

"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, 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 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."