At the beginning of World War II, President Franklin D. Roosevelt issued Executive Order 9066, now remembered as a shameful precedent in our nation’s history. With Roosevelt’s signature, my father, Fred T. Korematsu, and almost 120,000 other Japanese Americans were incarcerated unconstitutionally on the theory that they would be disloyal and engage in espionage against the United States.
My father resisted and stood up for what was right. He was not going to submit to an order rooted in wartime hysteria, racism and xenophobia. Instead, he stayed in San Leandro, California, and tried to hide from authorities. He was arrested and convicted of evading the order, and he eventually appealed to overturn it. His case, Korematsu v. United States, reached the Supreme Court in 1944. Instead of asking probing questions, the court acquiesced to the government’s position, failed to scrutinize whether the government’s claims had any basis in fact, accepted the government’s contention that the incarceration was a “military necessity” and ruled against my father. The court not only abandoned its critical role as a “check” on executive power, but disregarded the fundamental freedoms guaranteed by our Constitution. Justice Robert Jackson dissented, calling the decision a “loaded weapon ready for the hand of any authority who could bring forward a plausible claim of urgent need.”
In 1981, evidence was discovered that the government had suppressed, altered and destroyed material evidence proving Japanese Americans were not engaging in espionage and the mass incarceration was unnecessary. My father was able to use the evidence of government misconduct to overturn his conviction by the U.S. District Court, utilizing a rare legal action. Today, conservative and liberal legal minds agree that Korematsu and Executive Order 9066 were wrong, and should not be repeated.
Earlier this year, President Trump issued Executive Order 13780 followed by Proclamation 9645, ostensibly for “Protecting the Nation from Foreign Terrorist Entry into the United States.” This order banned visas and U.S.-bound travel from certain countries—all countries that happened to have majority-Muslim populations. Widely known as the Muslim Travel Ban, this executive order echoes the World War II incarceration camps separating those of a different ethnicity under the guise of national security. Both executive orders under Trump and Roosevelt target and discriminate against minorities, tear families apart and preach intolerance. And I believe we will soon see they are found to be unconstitutional.
Because my father’s conviction was vacated, the Supreme Court never had the opportunity to overturn its ruling in his case that upheld the mass incarceration, nor to define the limits of executive orders. This week, the U.S. Court of Appeals for the Fourth Circuit will have a chance to do just that when it reviews Trump’s executive order.
If the courts uphold the travel ban, it will affirm that bigotry and intolerance take precedence over our core constitutional rights. We must stop repeating history by ignoring our past indiscretions. Korematsu is a reminder that while we may sometimes be afraid during times of crisis, fear should not prevail over our fundamental freedoms. The purpose of the Constitution is to protect the liberties that were given at the founding of our country.
In 1995, Justice Ruth Bader Ginsburg optimistically wrote in a dissent in Adarand Constructors, Inc. v. Pena that “a Korematsu-type classification . . . will never again survive scrutiny.” In 2014, Justice Antonin Scalia unequivocally stated that the ruling from Korematsu was wrong. And Scalia gave a darker premonition: “But you are kidding yourself if you think the same thing will not happen again . . . In times of war, the laws fall silent.”
The courts must not “fall silent” and must act diligently not to repeat the mistake the legal system made in my father’s case. His liberties were compromised in 1944. It must not happen again. We need to be vigilant and remember my father’s words: “Stand up for what is right!”