1 The curfew and evacuation orders, which are the basis of Hirabayashi and Korematsu respectively, affected, without distinction, United States citizens of Japanese descent as well as non-citizen resident aliens.
2.
2 A constitutionally legitimate end or goal which the state may pursue at the expense of individual liberties. Thus, in pursuit of effectuating a compelling state interest, a state may engage in infringements on individual civil liberties which otherwise would be considered unconstitutionally impermissible.
3.
3 Generally, see Murphy’s dissent in Korematsu, General Dewitt’s ‘Final report, Japanese evacuation from the west coast, 1942’ (1943); R. Daniels, Concentration Camps USA (New York, Holt, Rinehart & Winston, 1972) and M. Grodzins, Americans Betrayed (Chicago, University of Chicago Press, 1949), which documented the voluminous outpouring of racism directed at people of Japanese descent via west coast newspapers.
4.
4 Korematsu, p. 242.
5.
5 316 US 535, 541 (1942).
6.
6 163 US 537 (1896).
7.
7 Plessy, p. 550.
8.
8 Hirabayashi, p. 100.
9.
9 Korematsu, p. 216.
10.
10 Curfew orders affected German and Italian aliens but not United States citizens of German or Italian ancestry. All people of Japanese descent, including United States citizens were affected by curfew orders. All people of Japanese descent, including United States citizens, were interned. No such internment was required for those of German and Italian ancestry, including aliens.
11.
11 R. Drinnon, Facing West: the metaphysics of Indian hating (Minneapolis, University of Minnesota Press1980).
12.
12 Hirabayashi, p. 93.
13.
13 71 US 2 (1866).
14.
14 Hirabayashi, p. 90.
15.
15 Ibid., p. 94.
16.
16 ‘Final report’, op. cit. While dated June 1943, it was not made public until January 1944. In it, DeWitt refers to all those of Japanese ancestry as ‘subversive’ and ‘as belonging to an enemy race’. See Korematsu p. 236. However, nowhere in his report does he cite any evidence or grounds as to why these people were generally disloyal.
17.
17 Korematsu, p. 235.
18.
18 Ibid., p. 238.
19.
19 Ibid., p. 239.
20.
20 Ibid., p. 239.
21.
21 Ibid., p. 238.
22.
22 In Los Angeles in June 1943, white servicemen, particularly marines and sailors, engaged in a reign of terror of gang attacks and beatings of Mexican-American teenagers. See R. Acuna, Occupied America: a history of Chicanos (New York, Harper-Collins1988).
23.
23 Korematsu, p. 239.
24.
24 Ibid., p. 242.
25.
25 Ibid., p. 241.
26.
26 Just as disturbing as Stone’s opinion was Douglas’s concurring opinion. While generally perceived, especially in his later years, as being the Court’s primary defender of civil rights, there appears no such evidence of this reputation in Hirabayashi. Like Stone, he refused to challenge, or review, the proclamation, stating that it may be based on factors that are ‘intangible or imponderable’. See Hirabayashi, p. 106. What kind of rationale is this? Does it mean that we do not need facts to support decisions but can rely on gut feelings? Given his much publicised racial sensitivity, I find it surprising that he would rely on the language of a companion case, United States v. Yasui, 48 F. Supp. 40, where the court cites the ‘difficulty of controlling members of an alien race’ (see Hirabayashi, p. 106) to justify the proclamation and his refusal to address the petitioner’s concerns by simply stating that the petitioner must obey the law.
