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11.7.4 Transcript from Justice Robert A. Jackson, Dissent in Korematsu v. United States (1944)

Supreme Court Justice Jackson’s Dissent in Korematsu Case

Jackson, Robert A.

Korematsu v. United States 323 U.S. 214. 1944. Legal Information Institute, Cornell University. https://www.law.cornell.edu/supremecourt/text/323/214.

The League of United Latin American Citizens (LULAC) is one of the nation’s oldest civil rights organizations that advocates for the rights and voices of Latinixs and Chicanxs. In the closing months of World War II, the LULAC newspaper published this editorial, after the Zoot Suit Riots and in the midst of the Bracero Program. This editorial describes the treatment that Mexicans and Mexican Americans experienced on a daily basis. What do you notice about how this article explains the way that Mexican American service members and civilians were being treated? Why does LULAC insist that all people of Mexican descent are “white”? What is the advantage of this claim? How does the article explain how race functions?

The League of United Latin American Citizens (LULAC) is one of the nation’s oldest civil rights organizations that advocates for the rights and voices of Latinxs and Chicanxs. In the closing months of World War II, the LULAC newspaper published this editorial, after the Zoot Suit Riots and in the midst of the Bracero Program. This editorial describes the treatment that Mexicans and Mexican Americans experienced on a daily basis. Ask students: What do you notice about how this article explains the way that Mexican American service members and civilians were being treated? Why does LULAC insist that all people of Mexican descent are “white”? What is the advantage of this claim? How does the article explain how race functions? Students will likely notice similar and different arguments about equality than those used today; ask them to notice continuities and changes in the arguments.

"Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

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.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attained.”