A Satchel of Embarrassments: Hugo Black and Korematsu v. United States

Hugo Lafayette Black

Fred Korematsu's mom gave birth to him in the United States. Fred lived in San Leandro, California. After the attack on Pearl Harbor and the subsequent declaration of war on Japan, on March 21, 1942, Congress enacted a new criminal law making it a misdemeanor criminal offense to disobey certain exclusionary orders that might be issued by the President or his designees:

[W]hoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. [56 Stat. 173]

Congress acted after President Roosevelt had issued an Executive Order authorizing the Department of War to issue and enforce orders of exclusion. Both the March 1942 statute and the previous Executive Order contemplated the recognition of certain areas of military importance, and, the risk that places of military importance might be subject both to espionage activities and sabotage.

So far, so good. The recognition of risk and the actions anticipating risk taken to ameliorate them are perfectly sensible. What followed, however, was a dark chapter in our history, and reflected an indelible stain of racism on Hugo Black.

Fred Korematsu, as I said, lived in San Leandro. San Leandro sits on the San Francisco Bay, directly across from San Francisco and immediately south of Alameda. Based on residence, he was required by Order of the Military Authority to report to a designated facility and thereafter to be transported to a new place of residence. Fred did not report as required.

It is important to note, and Justice Black's opinion does so, that there was never any question about Fred's loyalty to the United States. He was subject to exclusion solely based on his ancestry. A federal court convicted him of the misdemeanor offense and the federal appeals court affirmed. Because the Court considered that Fred's appeal presented important constitutional questions, it agreed to hear the appeal.

Justice Hugo Black came to the Supreme Court because he had been a progressive voice of support for FDR's economic recovery programs in the US Senate. His nomination raised consternation because he had, for a period of time, been a member of the Ku Klux Klan. On the Court, Korematsu to the side, Black set his own course of strict application of the text of the Constitution. He took seriously the language of the Constitution that "Congress shall make no law" on many topics. Where other justices applied balancing tests to decide the legitimacy of statutes restricting speech, press and other fundamental constitutional rights, Black was the Court's absolutist.

Given his absolutism, and his commitment to a textual reading of the Constitution, it is hard to grasp how Black found himself affirming the conviction of an American whose crime was to be in a place where other Americans could be, solely on the ground of his Japanese ancestry. Perhaps because this decision was so inconsistent with his general legal philosophy, the essence of his opinion just meanders along to an end that does nothing more than say, it was not an act of racism because we are at war:

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.

Three Justices dissented from the Court's decision. Justice Murphy pointedly called out the true nature of the Orders that targeted Fred and other Americans of Japanese descent as patently racist:

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.

Justice Jackson, whose head goes into the bag immediately below this discussion, explained how that racism was evidenced by the exclusion order:

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 him 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, examination, 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 others being, say, a German alien enemy, an Italian alien enemy, and 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.

Hugo Lafayette Black did not maintain a lifetime membership in the Ku Klux Klan. In 1937, as furor arose over revelations of his prior membership in the KKK, Justice Black took the extraordinary step of making a radio address to the Nation. At the time, the only radio address to reach a larger audience was that for the King's abdication in England. Justice Black repudiated religious and racial biases. I suppose Korematsu is best understood as Justice Black having forgotten his 1937 speech.

We the Judges vs. We the People

When we are born, we lack the muscle strength and coordination to stand, to walk, and to run. We lack the teeth to bite, to tear, and to chew. We lack the visual acuity to discriminate among patterns.

These things -- for almost all of us -- do come. The joy of first sitting up by a child, first standing up, first steps will come. The delight of first solid food (at least until time to change the diaper). The thrill of the first words, "maaaa" or "dada."

But until these skills, and a host of other skill sets, switch on, and we hone and develop them, we have parents.

I don't care if you think we have parents as a feature of evolutionary biology or special creation, the point you cannot dispute is that young are nurtured by biological antecedents. This rule is not universal to the kingdom of animals, that parents engage in this nuturing to maturity. Many species engage in, essentially, lay and release. Think here of the images of turtles, freshly hatching on the beach, and making the dangerous dash to the sea. No mother to guard them, to guide them, they are the easy prey of men and beasts.

But, and this point is what brings me here today, there is a time when a being acquires the separate and equal station in life, to which the continuing application of infant parenting is entirely inappropriate. Think Jeff Daniels changing bearded Jim Carrey's diaper in Dumber and Dumber 2. And yet, gentle reader, this very inappropriate form of infant parenting is writ large across the American landscape. That infant parenting takes the form of judicial activism.

What bring this topic to mind?

Actually, a couple factors play into my mulling the topic.

First, Damon Root's piece in Reason magazine, which you can find here: When Judicial Activists Switched Sides. This article, in three brief pages, scopes out a history of the modern movement from self-government, that is, government by we the People through our elected legislative assemblies, to the governmental form of infant parenting, that is, rule by a judicial oligarchy. Root's pithy pitch makes clear the loss of self-government in the appeal by many different special interest groups to courts, particularly federal courts, on a host of disputed matters typically (historically) left to regulation by state legislatures.

Second, the pending cases before the Supreme Court on the subject of marriage put the question squarely before us:  given the separate sovereign status of the several States, and their retention under the Constitution of the plenary power to regulate the institution of marriage, can judicial interventions like the present cases (or, indeed, past cases such as Loving v. Virginia) be constitutionally justified?

Remember, no mere legal fiction, the separate status of the States as sovereign political bodies pre-existed the federation created by those States when they drafted and ratified the Constitution of the United States. To set up a workable arrangement of divisions of powers, the States made limited donations of their natural range of powers to the central or general government. At the same time, the States retained to themselves a broad swath of traditional State powers.

For example, the States retained the power to regulate public health, safety and morals (shocking, yes, but true, States have historically maintained -- as against any such power in the federal government -- the power to enact and enforce moral regulations). On the other hand, States entirely surrendered to the new federal government the power to enter into treaty relations with foreign powers. While the States, at the Nation's founding, retained the power to establish an official church, they specifically withheld a like power from the central or general government. On some matters, as allowed by the express terms of the Constitution, both the States and the central or general government share a power. One example of such a shared power is the power to tax. The States enjoy plenary power in this regard, the federal government enjoys such power to tax as allotted to it in the Constitution.

So, then, the questions related to regulation of marriage should begin where the Nation did, with the Constitution. Did the States donate any power related to the regulation of marriage to the federal government in the Constitution? There is no rational ground on which one may assert that they did so.

Failing to dive into the history of our Nation, failing to comprehend the comprehensive struggle leading to the ratification of the Constitution, cheats one of the ability to understand the significance of an act such as a federal court ordering a State to change its regulation of marriage. No one, not Hamilton, not Jay, not Madison (the authors of the Federalist Papers), NO ONE AT ALL, contended that the Constitution sent to the States for ratification allocated any power to the central or general government on the question of marriage (or, for that matter, on any topic not expressly stated in the Constitution). So, if the Supreme Court rules on the marriage cases, and confines itself to the Constitution as it was on the date it became effective (June 21, 1788, when New Hampshire became the ninth State to ratify it), then there is no legitimate basis for the Court to do otherwise than to rule that questions of marriage were reserved to the States and to the People in the drafting of the Constitution, and to affirm the cases before it (ones sustaining State laws limiting the definition of marriage to opposite sex couples).

But the Court won't confine itself to the 1788 Constitution.

Proponents of marriage equality base their case on another Constitution. That Constitution is the one resulting from the addition of the Fourteenth Amendment to the Constitution. That amendment cured the ill resulting from Dred Scott v. Sandford, a case in which the Supreme Court held that blacks were not, could never be, citizens of the United States under the Constitution. The Fourteenth Amendment made "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" citizens of the Nation and of the State in which they reside. More than that, though, the Fourteenth Amendment imposed guarantees that newly minted citizens -- that large class of former slaves included -- enjoyed full participation in important aspects of citizenship. The amendment guarantees equal protection under the law, and due process rights prior to deprivation of rights to life, liberty or property.

So marriage equality advocates would have the Court find, within the requirements of equal protection and due process, a right of one person to enter into a marital relationship under State law with a person of the same gender. Now the Court will rule on the question. Its ruling will likely come before July 1, 2015. The Court will either affirm the decisions of the lower courts that are before it, or reverse those decisions. If the Court affirms, then States in those cases will remain free to regulate marriage, and to limit marriage to opposite sex couples. If the Court reverses, then the States in those cases, as the States in the many other cases in which courts have held that limits on marriage to opposite sex couples violate the Fourteenth Amendment, will be obliged to license both opposite sex and same sex marriage (or to exit the marriage licensing process entirely). (Occasionally, the Supreme Court fails to reach a decision on a particular case during the term in which it is argued; none of the factors typical to such cases, such as the retirement or death of a justice after argument, are present here.)

Damon Root's article linked above, in its closing paragraphs, quotes the late justice, Hugo Black. In 1968, Black expressed his views on the Constitution in lectures given at the Columbia University School of Law. What he said there stands today as a sound reminder of the dangerous dependency on allowing the Court to treat this Nation, these States, as overgrown babies requiring its particular brand of infant parenting through judicial abrogation of State laws:

[T]here is a tendency now among some to look to the judiciary to make all the major policy decisions of our society under the guise of determining constitutionality. The belief is that the Supreme Court will reach a faster and more desirable resolution of our problems than the legislative or executive branches of the government. To the people who have such faith in our nine justices, I say that I have known a different court from the one today. What has occurred may occur again. I would much prefer to put my faith in the people and their elected representatives to choose the proper policies for our government to follow, leaving to the courts questions of constitutional interpretation and enforcement. (Quoting H. Black, A Constitutional Faith at p. 11).

Black spent a lifetime in and around the Court. Read those words: "To the people who have such faith in our nine justices, I say that I have know a different court from the one today." How slender is the reed on which you wish to rest your rights? Many difficult cases of the Court, in areas such as criminal law, economic regulation, and constitutional rights, are decided by slender margins, five justices against four, sometimes by slenderer margins three or four justices deciding an outcome for one reason, joined by a couple justices agreeing with outcomes but rejecting reasons. Do you rest comfortably knowing that the rights you hope to celebrate are a justice's breath from extinction?

If, like Black, like Lincoln, like Jefferson, you recognize that government by judiciary is unsound in principle and ephemeral in fact, then you will not celebrate a decision of the Supreme Court striking down State laws on marriage. Even those that support marriage equality must rest uncomfortably in such cases. Our more secure rights are secure because they rest on the acceptance and shelter of the great body of the People of the states in which we live. And, but for the limited class of matters over which the States permit the federal government to have rule, the soundest place for policy judgments is in the great, unwashed herd, that are We the People.