Supreme
Court of the
Gordon HIRABAYASHI
v.
UNITED STATES.
No. 870.
Argued May 10, 11, 1943.
Decided
On Certificate from the
Gordon Kiyoshi Hirabayashi was convicted in
the District Court of violating the Act of Congress which makes it a
misdemeanor knowingly to disregard restrictions made applicable by a military commander
to persons in military area prescribed by him as such as authorized by an
Executive Order of the President, and on appeal the Court of Appeals for the
Ninth Circuit certified questions of law to the Supreme Court.
Judgment of conviction affirmed.
**1377 *82 Messrs. Frank L. Walters, of
Mr. Charles Fahy,
Sol. Gen., of
*83 Mr. Chief Justice STONE delivered the
opinion of the Court.
Appellant, an American citizen of Japanese
ancestry, was convicted in the district court of violating the
The questions for our decision are whether the
particular restriction violated, namely that all persons of Japanese ancestry
residing in such an area be within their place of residence daily between the
hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the
exercise of an unconstitutional delegation by Congress of its legislative
power, and whether the restriction unconstitutionally discriminated between
citizens of Japanese ancestry and those of other ancestries in violation of the
Fifth Amendment.
The indictment is in two counts. The second
charges that appellant, being a person of Japanese ancestry, had on a specified
date, contrary to a restriction promulgated by the military commander of the
Western Defense Command, Fourth Army, failed to remain in his place of
residence *84 in the designated military area between the hours of 8:00
o’clock p.m. and 6:00 a.m. The first count charges that appellant, on May 11
and 12, 1942, had, contrary to a Civilian Exclusion Order issued by the
military commander, failed to report to the Civil Control Station within the
designated area, it appearing that appellant’s required presence there was a
preliminary step to the exclusion from that area of persons of Japanese
ancestry.
By demurrer and plea in abatement, which the
court overruled (
The evidence showed that appellant had failed
to report to the Civil Control Station on May 11 or
On appeal the Court of Appeals for the
Ninth Circuit certified to us questions of law upon which it desired
instructions *85 for the decision of the case. See s 239 of the Judicial
Code as amended,
The curfew order which appellant violated, and
to which the sanction prescribed by the Act of Congress has been deemed to
attach, purported to be issued pursuant to an Executive Order of the President.
In passing upon the authority of the military commander to make and execute the
order, it becomes necessary to consider in some detail the official action
which preceded or accompanied the order and from which it derives its purported
authority.
On December 8, 1941, one day after the bombing
of Pearl Harbor by a Japanese air force, Congress declared war against **1379
On
Public Proclamation No. 2 of
An Executive Order of the President, No. 9102,
of March 18, 1942, established the War Relocation Authority, in the Office for
Emergency Management of the Executive Office of the President; it authorized
the Director of War Relocation Authority to formulate and effectuate a program
for the removal, relocation, maintenance and supervision of persons designated
under Executive
Order No. 9066, already referred to; and it
conferred on the Director authority to prescribe regulations necessary or
desirable to promote the effective execution of the program. 7
Federal Register 2165.
Congress, by the
Three days later, on
Beginning on
Appellant does not deny that he knowingly
failed to obey the curfew order as charged in the second count of the
indictment, or that the order was authorized by the terms of Executive
Order No. 9066, or that the challenged Act of
Congress purports to punish with criminal penalties disobedience of such an
order. His contentions are only that Congress unconstitutionally delegated its
legislative power to the military commander by authorizing him to impose the
challenged regulation, and that, even if the regulation were in other respects
lawfully authorized, the Fifth Amendment prohibits the discrimination made
between citizens of Japanese descent and those of other ancestry.
It will be evident from the legislative
history that the Act of
When the bill was under consideration, General
DeWitt had published his Proclamation No. 1 of
The Chairman of the Senate Military
Affairs Committee explained on the floor of the Senate that the purpose of the
proposed legislation was to provide means of enforcement of curfew orders and
other military orders made pursuant to Executive
Order No. 9066. He read General DeWitt’s Public
Proclamation No. 1, and statements from newspaper reports that ‘evacuation of
the first Japanese aliens and American-born Japanese’ was about to begin. He
also stated to the Senate that ‘reasons for suspected widespread fifth-column
activity among Japanese’ were to be found in the system of dual citizenship
which Japan deemed applicable to American-*91 born Japanese, and in the
propaganda disseminated by Japanese consuls, Buddhist priests and other
leaders, among American-born children of Japanese. Such was stated to be the
explanation of the contemplated evacuation from the
The conclusion is inescapable that
Congress, by the Act of
Executive
Order No. 9066, promulgated in time of war for
the declared purpose **1382 of prosecuting the war by protecting
national defense resources from sabotage and espionage, and the Act of March
21, 1942, ratifying and confirming the Executive Order, were each an exercise
of the power to wage war conferred on the Congress and on the President, as
Commander in Chief of the armed forces, by Articles I and II of the
Constitution. We have no occasion to consider whether the President, acting
alone, could lawfully have made the curfew order in question, or have
authorized others to make it. For the President’s action has the support of the
Act of Congress, and we are immediately concerned with the question whether it
is within the constitutional power of the
national government, through the joint action of Congress and the Executive, to
impose this restriction as an emergency war measure. The exercise of that power
here involves no question of martial law or trial by military tribunal.
Appellant has been *93 tried and convicted in the civil courts and has
been subjected to penalties prescribed by Congress for the acts committed.
The war power of the national government
is ‘the power to wage war successfully’. See Charles Evans Hughes, War Powers
Under the Constitution, 42 A.B.A.Rep. 232, 238. It
extends to every matter and activity so related to war as substantially to
affect its conduct and progress. The power is not restricted to the winning of
victories in the field and the repulse of enemy forces. It embraces every phase
of the national defense, including the protection of war materials and the
members of the armed forces from injury and from the dangers which attend the
rise, prosecution and progress of war. Since the Constitution commits to the Executive and to
Congress the exercise of the war power in all the vicissitudes and conditions
of warfare, it has necessarily given them wide scope for the exercise of
judgment and discretion in determining the nature and extent of the threatened
injury or danger and in the selection of the means for resisting it. Where, as
they did here, the conditions call for the exercise of judgment and discretion
and for the choice of means by those branches of the Government on which the
Constitution has placed the responsibility of warmaking,
it is not for any court to sit in review of the wisdom of their action or
substitute its judgment for theirs.
The actions taken must be appraised in the
light of the conditions with which the President and Congress were confronted
in the early months of 1942, many of which *94 since disclosed, were
then peculiarly within the knowledge of the military authorities. On
Although the results of the attack on Pearl
Harbor were not fully disclosed until much later, it was known that the damage **1383
was extensive, and that the Japanese by their successes had gained a naval
superiority over our forces in the Pacific which might enable them to seize
Pearl Harbor, our largest naval base and the last stronghold of defense lying
between Japan and the west coast. That reasonably prudent men charged with the
responsibility of our national defense had ample ground for concluding that
they must face the danger of invasion, take measures against it, and in making
the choice of measures consider our internal situation, cannot be doubted.
[9] The challenged orders were defense measures for the avowed
purpose of safeguarding the military area in question, at a time of threatened
air raids and invasion *95 by the Japanese forces, from the danger of
sabotage and espionage. As the curfew was made applicable to citizens residing
in the area only if they were of Japanese
ancestry, our inquiry must be whether in the light of all the facts and
circumstances there was any substantial basis for the conclusion, in which
Congress and the military commander united, that the curfew as applied was a
protective measure necessary to meet the threat of sabotage and espionage which
would substantially affect the war effort and which might reasonably be
expected to aid a threatened enemy invasion. The alternative which appellant
insists must be accepted is for the military authorities to impose the curfew
on all citizens within the military area, or on none. In a case of threatened
danger requiring prompt action, it is a choice between inflicting obviously
needless hardship on the many, or sitting passive and unresisting in the
presence of the threat. We think that constitutional government, in time of
war, is not so powerless and does not compel so hard a choice if those charged
with the responsibility of our national defense have reasonable ground for
believing that the threat is real.
When the orders were promulgated there was a
vast concentration, within Military Areas No. 1 and 2, of installations and
facilities for the production of military equipment, especially ships and
airplanes. Important Army and Navy bases were located in
FN1 State
Distribution of War Supply and Facility Contracts--June 1940 through December
1941 (issued by Office of Production Management, Bureau of Research and
Statistics,
*96 In the critical days of March,
1942, the danger to our war production by sabotage and espionage in this area
seems obvious. The German invasion of the Western European countries had given
ample warning to the world of the menace of the ‘fifth column.’ Espionage by
persons in sympathy with the Japanese Government had been found to have been
particularly effective in the surprise attack on
FN2 See ‘Attack upon
FN3 Sixteenth Census
of the United States, for 1940, Population, Second Series, Characteristics of
the Population (Dep’t. of Commerce): California, pp. 10, 61; Oregon, pp. 10,
50; Washington, pp. 10, 52. See also H.R.Rep. No.
2124, 77th Cong., 2d Sess., pp. 91-100.
**1384 There is support for the view
that social, economic and political conditions which have prevailed since the
close of the last century, when the Japanese began to come to this country in
substantial numbers, have intensified their solidarity and have in large
measure prevented their assimilation as an integral part of the white
population. [FN4] In
addition, large numbers of children of Japanese parentage *97 are sent
to Japanese language schools outside the regular hours of public schools in the
locality. Some of these schools are generally believed to be sources of
Japanese nationalistic propaganda, cultivating allegiance to Japan. [FN5] Considerable numbers, estimated
to be approximately 10,000, of American-born children of Japanese parentage
have been sent to Japan for all or a part of their education. [FN6]
FN4 Federal
legislation has denied to the Japanese citizenship by naturalization and the
Immigration Act of 1924 excluded them from admission into the United States. It
has also sought to prohibit intermarriage of persons of Japanese race with
Caucasians. Persons of Japanese descent have often been unable to secure
professional or skilled employment except in association with others of that
descent, and sufficient employment opportunities of this character have not
been available.
FN5 Hearings before
the Select Committee Investigating National Defense
Migration, House of Representatives, 77th Cong., 2d Sess.,
pp. 11702, 11393-11394, 11348.
FN6 H.R.Rep. No. 1911, 77th Cong., 2d Sess.,
p. 16.
Congress and the Executive, including the
military commander, could have attributed special significance, in its bearing
on the loyalties of persons of Japanese descent, to the maintenance by Japan of
its system of dual citizenship. Children born in the United States of Japanese
alien parents, and especially those children born before December 1, 1924, are
under many circumstances deemed, by Japanese law, to be citizens of Japan. [FN7] No *98
official census of those whom Japan regards as having thus retained Japanese citizenship
is available, but there is ground for the belief that the number is large. [FN8]
FN7 Nationality Law
of Japan, Article
1 and Article 20, s 3, and Regulations (Ordinance
No. 26) of November 17, 1924,--all printed in Flournoy
and Hudson, Nationality Laws (1929), pp. 382, 384-387. See also Foreign
Relations of the United States, 1924, vol. 2, pp. 411-413.
FN8 Statistics
released in 1927 by the Consul General of Japan at San Francisco asserted that over 51,000 of the approximately
63,000 American- born persons of Japanese parentage then in the western part of
the United States held Japanese citizenship. Mears, Resident Orientals on the
American Pacific Coast, pp. 107-08, 429. A census conducted under the auspices
of the Japanese government in 1930 asserted that approximately 47% of
American-born persons of Japanese parentage in California held dual
citizenship. Strong, The Second-Generation Japanese Problem (1934), p. 142.
The large number of resident alien Japanese, approximately
one-third of all Japanese inhabitants of the country, are of mature years and
occupy positions of influence in Japanese communities. The association of
influential Japanese residents with Japanese Consulates has been deemed a ready
means for the dissemination of propaganda and for the maintenance of the
influence of the Japanese Government with the Japanese population in this
country. [FN9]
FN9 H.R.Rep. No. 1911, 77th Cong., 2d Sess.,
p. 17.
As a result of all these conditions affecting
the life of the Japanese, both aliens and citizens, in the Pacific Coast area,
there has been relatively little social intercourse between them and the white
population. The restrictions, both practical and legal, affecting the
privileges and opportunities afforded to
persons of Japanese extraction residing in the United States, **1385
have been sources of irritation and may well have tended to increase their
isolation, and in many instances their attachments to Japan and its
institutions.
Viewing these data in all their aspects,
Congress and the Executive could reasonably have concluded that these
conditions have encouraged the continued attachment of members of this group to
Japan and Japanese institutions. *99 These are only some of the many
considerations which those charged with the responsibility for the national
defense could take into account in determining the nature and extent of the
danger of espionage and sabotage, in the event of invasion or air raid attack.
The extent of that danger could be definitely known only after the event and
after it was too late to meet it. Whatever views we may entertain regarding the
loyalty to this country of the citizens of Japanese ancestry, we cannot reject
as unfounded the judgment of the military authorities and of Congress that
there were disloyal members of that population, whose number and strength could
not be precisely and quickly ascertained. We cannot say that the war-making branches
of the Government did not have ground for believing that in a critical hour
such persons could not readily be isolated and separately dealt with, and
constituted a menace to the national defense and safety, which demanded that
prompt and adequate measures be taken to guard against it.
Appellant does not deny that, given the
danger, a curfew was an appropriate measure against sabotage. It is an obvious
protection against the perpetration of sabotage most readily committed during
the hours of darkness. If it was an appropriate exercise of the war power its
validity is not impaired because it has restricted the citizen’s liberty. Like
every military control of the population of a dangerous zone in war time, it
necessarily involves some infringement of individual liberty, just as does the
police establishment of fire lines during a fire, or the confinement of people
to their houses during an air raid alarm--neither of which could be thought to
be an infringement of constitutional right. Like them, the validity of the
restraints of the curfew order depends on all the conditions which obtain at
the time the curfew is imposed and which support the order imposing it.
*100 But appellant insists that the exercise of the
power is inappropriate and unconstitutional because it discriminates against
citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth
Amendment contains no equal protection clause and it restrains only such
discriminatory legislation by Congress as amounts to a denial of due process.
Congress may hit at a particular danger where it is seen, without providing for
others which are not so evident or so urgent.
Distinctions
between citizens solely because of their ancestry are by their very nature
odious to a free people whose institutions are founded upon the doctrine of
equality. For that reason, legislative classification or discrimination based
on race alone has often been held to be a denial of equal protection. We may
assume that these considerations would be controlling here were it not for the
fact that the danger of espionage and sabotage, in time of war and of
threatened invasion, calls upon the military authorities to scrutinize every
relevant fact bearing on the loyalty of populations in the danger areas.
Because racial discriminations are in most circumstances irrelevant and
therefore prohibited, it by no means follows that, in dealing with the perils
of war, Congress and the Executive are wholly precluded from taking into
account those facts and circumstances which are relevant to measures for our
national defense and for the successful prosecution of the war, and which may
in fact place citizens of one ancestry in a different category from others. ‘We
must never forget, that it is a constitution we are expounding’, ‘a constitution
intended to endure for ages to come, and, consequently, to be adapted to the
various crises of human *101 affairs’. **1386 The adoption by Government,
in the crisis of war and of threatened invasion,
of measures for the public safety, based upon the recognition of facts and
circumstances which indicate that a group of one national extraction may menace
that safety more than others, is not wholly beyond the limits of the
Constitution and is not to be condemned merely because in other and in most circumstances
racial distinctions are irrelevant.
Here the aim of Congress and the Executive was
the protection against sabotage of war materials and utilities in areas thought
to be in danger of Japanese invasion and air attack. We have stated in detail facts
and circumstances with respect to the American citizens of Japanese ancestry
residing on the Pacific Coast which support the judgment of the warwaging branches of the Government that some restrictive
measure was urgent. We cannot say that these facts and circumstances,
considered in the particular war setting, could afford no ground for
differentiating citizens of Japanese ancestry from other groups in the United
States. The fact alone that attack on our shores was threatened by Japan rather
than another enemy power set these citizens apart from others who have no
particular associations with Japan.
Our investigation here does not go beyond
the inquiry whether, in the light of all the relevant circumstances preceding
and attending their promulgation, the challenged orders and statute afforded a
reasonable basis for the action taken in
imposing the curfew. We cannot close our eyes to the fact, demonstrated by
experience, that in time of war residents having ethnic affiliations with an
invading enemy may be a greater source of danger than those of a different
ancestry. Nor can we deny that Congress, and the military authorities acting
with its *102 authorization, have constitutional power to appraise the
danger in the light of facts of public notoriety. We need not now attempt to
define the ultimate boundaries of the war power. We decide only the issue as we
have defined it—we decide only that the curfew order as applied, and at the
time it was applied, was within the boundaries of the war power. In this case
it is enough that circumstances within the knowledge of those charged with the
responsibility for maintaining the national defense afforded a rational basis
for the decision which they made. Whether we would have made it is irrelevant.
What we have said also disposes of the
contention that the curfew order involved an unlawful delegation by Congress of
its legislative power. The mandate of the Constitution, Art. 1, s 1, that all
legislative power granted ‘shall be vested in a Congress’ has never been thought,
even in the administration of civil affairs, to preclude Congress from
resorting to the aid of executive or administrative officers in determining by
findings whether the facts are such as to call for the application of
previously adopted legislative standards or definitions of Congressional
policy.
The
purpose of Executive
Order No. 9066, and the standard which the
President approvedfor the orders authorized to be
promulgated by the military commander--as disclosed by the preamble of the
Executive Order--was the protection of our war resources against espionage and
sabotage. Public Proclamations No. 1 and 2, by General DeWitt, contain findings
that the military areas created and the measures to be prescribed for them were
required to establish safeguards against espionage and sabotage. Both the
Executive Order and the Proclamations were before Congress when the Act of
March 21, 1942, was under consideration. To the extent that the Executive Order
authorized orders to be promulgated by the military commander to accomplish the
declared purpose of the *103 Order, and to the extent that the findings
in the Proclamations establish that such was their purpose, both have been
approved by Congress.
It is true that the Act does not in terms
establish a particular standard to which orders of the military commander are
to conform, or require findings to be made as a prerequisite to any order. But
the Executive Order, the Proclamations and the statute are not to be read in
isolation **1387 from each other. They were parts of a single program
and must be judged as such. The Act of March 21, 1942, was an adoption by
Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order--the necessity
of protecting military resources in the
designated areas against espionage and sabotage. And by the Act, Congress gave
its approval to that standard. We have no need to consider now the validity of
action if taken by the military commander without conforming to this standard
approved by Congress, or the validity of orders made without the support of
findings showing that they do so conform. Here the findings of danger from
espionage and sabotage, and of the necessity of the curfew order to protect
against them, have been duly made. General DeWitt’s Public Proclamation No. 3,
which established the curfew, merely prescribed regulations of the type and in
the manner which Public Proclamations No. 1 and 2 had announced would be
prescribed at a future date, and was thus founded on the findings of
Proclamations No. 1 and 2.
The military commander’s appraisal of facts in
the light of the authorized standard, and the inferences which he drew from
those facts, involved the exercise of his informed judgment. But as we have
seen, those facts, and the inferences which could be rationally drawn from
them, support the judgment of the military commander, that *104 the
danger of espionage and sabotage to our military resources was imminent, and
that the curfew order was an appropriate measure to meet it.
Where, as in the present case, the
standard set up for the guidance of the military commander, and the action
taken and the reasons for it, are in fact recorded in the military orders, so
that Congress, the courts and the public are
assured that the orders, in the judgment of the commander, conform to the
standards approved by the President and Congress, there is no failure in the
performance of the legislative function. The essentials of that function are
the determination by Congress of the legislative policy and its approval of a
rule of conduct to carry that policy into execution. The very necessities which
attend the conduct of military operations in time of war in this instance as in
many others preclude Congress from holding committee meetings to determine
whether there is danger, before it enacts legislation to combat the danger.
The
Constitution as a continuously operating charter of government does not demand
the impossible or the impractical. The essentials of the legislative function
are preserved when Congress authorizes a statutory command to become operative,
upon ascertainment of a basic conclusion of fact by a designated representative
of the Government. The present statute, which authorized curfew orders to be
made pursuant to Executive
Order No. 9066 for the protection of war
resources from espionage and sabotage, satisfies those requirements. Under the
Executive Order the basic facts, determined by the military commander in the
light of knowledge then available, were whether that danger existed and whether
a curfew order was an appropriate means of
minimizing the danger. Since his findings to *105 that effect were, as
we have said, not without adequate support, the legislative function was
performed and the sanction of the statute attached to violations of the curfew
order. It is unnecessary to consider whether or to what extent such findings
would support orders differing from the curfew order.
The conviction under the second count is
without constitutional infirmity. Hence we have no occasion to review the
conviction on the first count since, as already stated, the sentences on the
two counts are to run concurrently and conviction on the second is sufficient
to sustain the sentence. For this reason also it is unnecessary to consider the
Government’s argument that compliance with the order to report at the Civilian
Control Station did not necessarily entail confinement in a relocation center.
Affirmed.
**1388 Mr. Justice DOUGLAS concurring.
While I concur in the result and agree
substantially with the opinion of the Court, I wish to add a few words to
indicate what for me is the narrow ground of decision.
After the disastrous bombing of Pearl Harbor
the military had a grave problem on its hands.
The threat of Japanese invasion of the west coast was not fanciful but real.
The presence of many thousands of aliens and citizens of Japanese ancestry in
or near to the key points along that coast line aroused special concern in
those charged with the defense of the country. They believed that not only
among aliens but also among citizens of Japanese ancestry there were those who
would give aid and comfort to the Japanese invader and act as a fifth column
before and during an invasion. [FN1] If the military *106 were right in their belief
that among citizens of Japanese ancestry there was an actual or incipient fifth
column, we were indeed faced with the imminent threat of a dire emergency. We
must credit the military with as much good faith in that belief as we would any
other public official acting pursuant to his duties. We cannot possibly know
all the facts which lay behind that decision. Some of them may have been as
intangible and as imponderable as the factors which influence personal or
business decisions in daily life. The point is that we cannot sit in judgment
on the military requirements of that hour. Where the orders under the present
Act have some relation to ‘protection against espionage and against sabotage’,
our task is at an end.
FN1 Judge Fee stated
in United
States v. Yasui, D.C., 48 F.Supp.
40, 44, 45, the companion case to the present
one, ‘The areas and zones outlined in the
proclamations became a theatre of operations, subjected in localities to attack
and all threatened during this period with a full scale invasion. The danger at
the time this prosecution was instituted was imminent and immediate. The
difficulty of controlling members of an alien race, many of whom, although
citizens, were disloyal with opportunities of sabotage and espionage, with
invasion imminent, presented a problem requiring for solution ability and
devotion of the highest order.’
Much of the argument assumes that as a matter
of policy it might have been wiser for the military to have dealt with these
people on an individual basis and through the process of investigation and
hearings separated those who were loyal from those who were not. But the wisdom
or expediency of the decision which was made is not for us to review. Nor are
we warranted where national survival is at stake in insisting that those orders
should not have been applied to anyone without some evidence of his disloyalty.
The orders as applied to the petitioner are not to be tested by the substantial
evidence rule. Peacetime procedures do not necessarily fit wartime needs. It is
said that if citizens of Japanese ancestry were generally disloyal, treatment
on a group basis might be justified. But there is no difference in power when
the number *107 of those who are finally shown to be disloyal or suspect
is reduced to a small per cent. The sorting
process might indeed be as time- consuming whether those who were disloyal or
suspect constituted nine or ninety-nine per cent. And the pinch of the order on
the loyal citizens would be as great in any case. But where the peril is great
and the time is short, temporary treatment on a group basis may be the only
practicable expedient whatever the ultimate percentage of those who are
detained for cause. Nor should the military be required to wait until espionage
or sabotage becomes effective before it moves.
It is true that we might now say that there
was ample time to handle the problem on the individual rather than the group
basis. But military decisions must be made without the benefit of hindsight.
The orders must be judged as of the date when the decision to issue them was
made. To say that the military in such cases should take the time to weed out
the loyal from the others would be to assume that the nation could afford to
have them take the time to do it. But as the opinion of the Court makes clear,
speed and dispatch may be of the essence. Certainly we cannot say that those
charged with the defense of the nation should have procrastinated until
investigations and hearings were completed. At that time further delay might
indeed have seemed to be wholly incompatible with military responsibilities.
**1389 Since we cannot override the
military judgment which lay behind these orders,
it seems to me necessary to concede that the army had the power to deal
temporarily with these people on a group basis. Petitioner therefore was not
justified in disobeying the orders.
But I think it important to emphasize that we
are dealing here with a problem of loyalty not assimilation. Loyalty is a
matter of mind and of heart not of race. That indeed is the history of America.
Moreover, guilt is personal *108 under our constitutional system.
Detention for reasonable cause is one thing. Detention on account of ancestry
is another.
In this case the petitioner tendered by a plea
in abatement the question of his loyalty to the United States. I think that
plea was properly stricken; military measures of defense might be paralyzed if
it were necessary to try out that issue preliminarily. But a denial of that
opportunity in this case does not necessarily mean that petitioner could not
have had a hearing on that issue in some appropriate proceeding. Obedience to
the military orders is one thing. Whether an individual member of a group must
be afforded at some stage an opportunity to show that, being loyal, he should
be reclassified is a wholly different question.
There are other instances in the law where one
must obey an order before he can attack as erroneous the classification in
which he has been placed. Thus it is commonly held that one who is a
conscientious objector has no privilege to defy
the Selective Service Act and to refuse or fail to be inducted. He must submit
to the law. But that line of authority holds that after induction he may obtain
through habeas corpus a hearing on the legality of his classification by the
draft board. Whether in the present situation that remedy
would be available is one *109 of the large and important issues
reserved by the present decision. It has been suggested that an administrative
procedure has been established to relieve against unwarranted applications of
these orders. Whether in that event the administrative remedy would be the only
one available or would have to be first exhausted is also reserved. The scope of
any relief which might be afforded--whether the liberties of an applicant could
be restored only outside the areas in question--is likewise a distinct issue.
But if it were plain that no machinery was available whereby the individual
could demonstrate his loyalty as a citizen in order to be reclassified,
questions of a more serious character would be presented. The United States,
however, takes no such position. We need go no further here than to deny the
individual the right to defy the law. It is sufficient to say that he cannot
test in that way the validity of the orders as applied to him.
Mr.
Justice MURPHY, concurring.
It is not to be doubted that the action taken
by the military commander in pursuance of the authority conferred upon him was
taken in complete good faith and in the firm conviction that it was required by
considerations of public safety and military security. Neither is it doubted
that the Congress and the Executive working together may generally employ such
measures as are necessary and appropriate to provide for the common defense and
to wage war ‘with all the force necessary to
make it effective.’ United
States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570,
574, 75 L.Ed. 1302.
This includes authority to exercise measures of control over persons **1390
and property which would not in all cases be permissible in normal times.
*110
It does not follow, however, that the broad guaranties of the Bill of Rights
and other provisions of the Constitution protecting essential liberties are
suspended by the mere existence of a state of war. It has been frequently
stated and recognized by this Court that the war power, like the other great
substantive powers of government, is subject to the limitations of the Constitution. We give great deference to the
judgment of the Congress and of the military authorities as to what is
necessary in the effective prosecution of the war, but we can never forget that
there are constitutional boundaries which it is our duty to uphold. It would
not be supposed, for instance, that public elections could be suspended or that
the prerogatives of the courts could be set aside, or that persons not charged
with offenses against the law of war could be deprived of due process of law
and the benefits of trial by jury, in the absence of a valid declaration of
martial law.
Distinctions based on color and ancestry are
utterly inconsistent with our traditions and ideals. They areat
variance with the principles for which we are now waging war. We cannot close
our eyes to the fact that for centuries the Old World has been torn by racial
and religious conflicts and has suffered the worst kind of anguish because of
inequality of treatment for different groups. There was one law for one and a
different law for another. Nothing is written more firmly into our law than the
compact of the Plymouth voyagers to have just *111
and equal laws. To say that any group cannot be assimilated is to admit that
the great American experiment has failed, that our way of life has failed when
confronted with the normal attachment of certain groups to the lands of their
forefathers. As a nation we embrace many groups, some of them among the oldest
settlements in our midst, which have isolated themselves for religious and
cultural reasons.
Today is the first time, so far as I am aware,
that we have sustained a substantial restriction of the personal liberty of
citizens of the United States based upon the accident of race or ancestry.
Under the curfew order here challenged no less than 70,000 American citizens
have been placed under a special ban and deprived of their liberty because of
their particular racial inheritance. In this sense it bears a melancholy
resemblance to the treatment accorded to members of the Jewish race in Germany
and in other parts of Europe. The result is the creation in this country of two
classes of citizens for the purposes of a critical and perilous hour--to
sanction discrimination between groups of United States citizens on the basis
of ancestry. In my opinion this goes to the very brink of constitutional power.
Except under conditions of great emergency a
regulation of this kind applicable solely to citizens of a particular racial
extraction would not be regarded as in accord with the requirement of due
process of law contained in the Fifth
Amendment. We have consistently held that attempts to apply regulatory action
to particular groups solely on the basis of racial distinction or
classification is not in accordance with due process of law as prescribed by
the Fifth and Fourteenth Amendments. It is true that the Fifth Amendment,
unlike the Fourteenth, contains no guarantee of equal protection of the laws.
It is also true that even the guaranty of equal protection of the laws allows a
measure of reasonable classification. It by no means follows, however, that
there may not be discrimination of such an injurious character in the application
of laws as to amount to a denial of due process of law as that term is used in
the Fifth Amendment. [FN2] I think that point is dangerously approached when we have
one law for the majority of our citizens and another for those of a particular
racial heritage.
FN2 For instance, if
persons of an accused’s race were systematically
excluded from a jury in a federal court, any conviction undoubtedly would be considered a violation of the requirement of
due process of law, even though the ground commonly stated for setting aside
convictions to obtained in state courts is denial of equal protection of the
laws.
In view, however, of the critical military
situation which prevailed on the Pacific Coast area in the spring of 1942, and
the urgent necessity of taking prompt and effective action to secure defense
installations and military operations against the risk of sabotage and
espionage, the military authorities should not be required to conform to
standards of regulatory action appropriate to normal times. Because of the
damage wrought by the Japanese at Pearl Harbor and the availability of new
weapons and new techniques with greater capacity for speed and deception in
offensive operations, the immediate possibility of an attempt at invasion
somewhere along the Pacific Coast had to be reckoned with. However desirable
such a procedure might have been, the military authorities could have
reasonably concluded at *113 the time that determinations as to the
loyalty and dependability of individual members of the large and widely
scattered group of persons of Japanese extraction on the West Coast could not
be made without delay that might have had tragic consequences. Modern war does not always wait for the
observance of procedural requirements that are considered essential and
appropriate under normal conditions. Accordingly I think that the military arm,
confronted with the peril of imminent enemy attack and acting under the
authority conferred by the Congress, made an allowable judgment at the time the
curfew restriction was imposed. Whether such a restriction is valid today is
another matter.
In voting for affirmance of the judgment I do
not wish to be understood as intimating that the military authorities in time
of war are subject to no restraints whatsoever, or that they are free to impose
any restrictions they may choose on the rights and liberties of individual
citizens or groups of citizens in those places which may be designated as
‘military areas’. While this Court sits, it has the inescapable duty of seeing
that the mandates of the Constitution are obeyed. That duty exists in time of
war as well as in time of peace, and in its performance we must not forget that
few indeed have been the invasions upon essential liberties which have not been
accompanied by pleas of urgent necessity advanced in good faith by responsible
men.
Nor do I mean to intimate that citizens of a
particular racial group whose freedom may be curtailed within an area
threatened with attack should be generally
prevented from leaving the area and going at large in other areas that are not
in danger of attack and where special precautions are not needed. Their status
as citizens, though subject to requirements of national security and *114
military necessity, should at all times be accorded the fullest consideration
and respect. When the danger is past, the restrictions imposed on them should
be promptly removed and their freedom of action fully restored.
Mr. Justice RUTLEDGE,
concurring.
I concur in the Court’s opinion, except for
the suggestion, if that is intended (as **1392 to which I make no
assertion), that the courts have no power to review any action a military officer
may ‘in his discretion’ find it necessary to take with respect to civilian
citizens in military areas or zones, once it is found that an emergency has
created the conditions requiring or justifying the creation of the area or zone
and the institution of some degree of military control short of suspending
habeas corpus. Given the generating conditions for exercise of military
authority and recognizing the wide latitude for particular applications that
ordinarily creates, I do not think it is necessary in this case to decide that
there is no action a person in the position of General De Witt here may take,
and which he may regard as necessary to the region’s or the country’s safety,
which will call judicial power into play.
The officer of course must have wide discretion and room for its operation. But
it does not follow there may not be bounds beyond which he cannot go and, if he
oversteps them, that the courts may not have power to protect the civilian
citizen. But in this case that question need not be faced and I merely add my
reservation without indication of opinion concerning it.