Korematsu and Beyond: Japanese Americans and the Origins of Strict Scrutiny

By Robinson, Greg; Robinson, Toni | Law and Contemporary Problems, Spring 2005 | Go to article overview

Korematsu and Beyond: Japanese Americans and the Origins of Strict Scrutiny


Robinson, Greg, Robinson, Toni, Law and Contemporary Problems


I

INTRODUCTION

The story of the United States Supreme Court's epochal 1954 ruling in Brown v. Board of Education (1) and the legal struggle for civil rights led by the National Association for the Advancement of Colored People (NAACP) during the decade following World War II occupies a central place in many Americans' understanding both of the history of democracy in the United States and of the African American experience. Under the direction of Chief Counsel Thurgood Marshall, the NAACP's Legal Defense and Education Fund and allied attorneys brought a series of civil rights cases before the U.S. Supreme Court. Its campaign culminated triumphantly in Brown and its companion case Bolling v. Sharpe, (2) in which the Court struck down school segregation.

It was in the Bolling case that the Court clearly and definitively established its doctrine of "strict scrutiny." According to this doctrine, race was a "suspect classification" under the Constitution, meaning that the Court would subject any action by the government that involved a racial classification to a searching examination, rather than assume its constitutionality, and that it would hold the action to be unconstitutional unless it served a compelling state interest and was narrowly tailored to meet that interest. The Court's doctrine of strict scrutiny removed the constitutional underpinnings of Jim Crow and thus paved the way for its subsequent civil rights decisions during the 1960s.

One crucial element of the story of Brown v. Board of Education and the battle for black equality has been obscured in the popular narrative: the role of the Nisei, U.S. citizens of Japanese ancestry, in the legal struggle leading up to Brown. The Nisei contribution took different forms: For example, lawyers for the Japanese American Citizens League (JACL) consulted on different occasions with NAACP counsel on the preparation of civil rights cases before the Supreme Court and lower courts, and the JACL participated in these cases as amicus curiae. Beyond the force of their arguments, the presence of the Nisei alongside African Americans served a powerful symbolic function, particularly in the decade following their mass wartime removal and incarceration (commonly called the Japanese American internment). It operated to remind both judges and the nation that racial prejudice was not simply a "black problem," but a complex phenomenon of global dimensions, and of the dangerous consequences of race-based legislation.

However, the most decisive contribution of the Japanese Americans to the legal struggle for civil rights was in laying the foundation for the doctrine of strict scrutiny on which Brown and the other cases were based. The doctrine was developed in significant part from principles first enunciated in the cases involving Japanese American challenges to their wartime incarceration. These principles were then elaborated and reinforced immediately after World War II in a set of cases brought by the JACL concerning the rights of Japanese Americans to live and work free of discriminatory restrictions. In the years that followed, the NAACP built upon these cases in its fight against segregation, and the Court finally absorbed and explicitly enshrined the principles first enunciated in those cases.

II

THE WARTIME JAPANESE AMERICAN CASES

A. Hirabayashi v. United States

The story of Japanese Americans and strict scrutiny begins with Hirabayashi v. United States (3) and Korematsu v. United States. (4) In these cases, the Court justified its upholding of race-based restrictions on American citizens of Japanese ancestry on the grounds of the exceptional demands of wartime military necessity. In the case of Hirabayashi and its companion case Yasui v. United States, (5) the Court sanctioned a special curfew for Japanese Americans. Engaging in some judicial hairsplitting, the Court considered this question separately from the mass removal and confinement that followed, which it refused to address. …

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