The Korematsu Supreme Court ruling upholding internment is still a ‘loaded weapon’ for discrimination

By Gabriel J. Chin

Dec. 22, 2016 4 AM PT

In its 1944 decision in Korematsu vs. United States, the Supreme Court upheld a wartime order sending Americans of Japanese racial ancestry to internment camps. To some, the decision belongs to a closed chapter of the past. After all, in 1984, the U.S. District Court in San Francisco set aside Fred T. Korematsu’s conviction for flouting the incarceration order, and four years later, Congress authorized reparations — a $20,000 payment to each survivor of the internment.

Yet the court has never overruled Korematsu, and in the words of dissenting Justice Robert Jackson, its underlying principle “lies about like a loaded weapon.”

It would be nice to think the roundup of Japanese Americans was a special case, limited to the desperate days of World War II. It would be comforting to conclude that discriminatory exclusion or incarceration could never happen again. But Korematsu was not a one-off. Hostility to Asians and suspicion that they are not quite fully American has never entirely disappeared. Korematsu and other cases upholding other discriminatory laws designed to suppress Asian participation in the U.S. provide frighteningly solid reasons to fear that our government has the power to trample the basic rights of immigrants and citizens all over again.

Conservative justices have continued to cite Korematsu in support of racial bias.

Japanese internment was just one component of a system of anti-Asian federal and state laws. The Naturalization Act of 1790, signed by John Adams, Thomas Jefferson and George Washington, limited naturalized citizenship to “free white persons.” In 1882, Congress specifically restricted Asian immigration with the Chinese Exclusion Act. The government extended the policy to Japanese, Asian Indians and other Asian races as soon as they began to immigrate in significant numbers.

The effects of these laws reverberate today because they successfully restricted the growth of Asian communities. For centuries, more than half the world’s people have lived in Asia, but in this “nation of immigrants” fewer than 6% of Americans are of Asian ancestry. Asians received equal naturalization privileges only in 1952, equal treatment in immigration in 1965.

States piggybacked on federal restrictions targeting Asians. California, among others, prohibited Chinese and Japanese and other Asians from owning land and marrying whites. Implemented in peacetime, none of these policies could be justified by the need to win a war.

The explanation, instead, was a supposedly fundamental connection between European racial heritage and suitability for American citizenship. In the 1882 debate over the Chinese Exclusion Act, Sen. La Fayette Grover of Oregon, pointed out that the founding fathers’ treatment of Native Americans “must be construed as fixing a limit to the meaning of their public declarations upon the rights of man. When they declared that all men were created equal, and were endowed with the inalienable right of life, liberty, and the pursuit of happiness, they undoubtedly meant all men like themselves.”

For its part, the Supreme Court accepted the baldly bigoted conclusion of Congress that Asians could be excluded from the country because “the presence of foreigners of a different race in this country” was “dangerous to its peace and security.”

There has been undeniable progress toward racial equality since the Chinese Exclusion Act and the Korematsu decision. To some degree, the Korematsu ruling itself has been rehabilitated. Although the majority opinion allowed the internment, it also stated that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and “courts must subject them to the most rigid scrutiny.” The Supreme Court later used this language to invalidate school segregation, the prohibition of interracial marriage, and covenants that barred nonwhites from certain neighborhoods.

Yet conservative justices have continued to cite Korematsu in support of racial bias as well. Justices Clarence Thomas and Antonin Scalia, for example, cited it in affirmative action cases to illustrate permissible racial discrimination. And the idea behind it, that Americans of Asian Pacific ancestry are somehow not fully American, also persists.

U.S. citizens of Asian ancestry such as Wen Ho Lee and Sherry Chen seem to have been very quickly — too quickly— charged with espionage based on inadequate investigations. After a stranger on the street told then-New York Times editor Michael Luo to “go back to China,” he wrote about it, and countless Asian Americans added their stories of racial insults and violence. Asian Americans of Muslim faith (or who are suspected of such) have particular reason for concern.

In a November 2015 radio interview with Donald Trump, incoming White House chief strategist Stephen Bannon seemingly embraced the connection between race and Americanness, and about the “difference” of Asians. Trump decried the fact that educated foreign students often were forced to leave the United States; Bannon demurred.

“When two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia, I think...” Bannon said, trailing off suggestively and citing bogus statistics suggesting an invasion when none existed. “A country is more than an economy. We’re a civic society.”

It is hard not to read “civic society” as a euphemism for the belief America is a white nation. And it is hard to regard the venerable tradition represented by Korematsu vs. the United States as a thing of the past.

Gabriel J. Chin is a professor at the UC Davis School of Law.

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