F acts after pearl harbor increased suspicions about

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Wrightsman's Psychology and the Legal System
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Chapter 14 / Exercise 05
Wrightsman's Psychology and the Legal System
Greene/Heilbrun
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F ACTS : After Pearl Harbor, increased suspicions about Japanese in U.S. Proposals, supported by Earl Warren, to remove Japanese from homes in Western U.S. General De Witt issued order (after presidential mandate) stating that all persons of Japanese areas were to be removed from military areas to detention camps. Korematsu, native born citizen convicted of disobeying order, challenged its constitutionality. H OLDING (B LACK ) : Courts must subject all racial classifications to “most rigid scrutiny.” However, the case at hand withstands test and does not violate equal protection. “Pressing public necessity” can justify racially based infringements of civil rights (racial antagonism cannot).
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Wrightsman's Psychology and the Legal System
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Chapter 14 / Exercise 05
Wrightsman's Psychology and the Legal System
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66 R EASONING : Not beyond the war power of Congress and Executive to exclude those of Japanese ancestry from West Coast war areas at the time they did. Given the situation it was not unfounded to judge that there were disloyal members of population whose number and strength couldn’t be ascertained. Couldn’t reject military finding that impossible to tell the loyal from the disloyal. Cannot, by “calm pers pective of hindsight,” say these actions unjustified. Concurrence : Frankfurter . War power of the govt is power to wage war successfully. Dissent: Roberts . Based solely on ancestry. Dissent: Murphy. No reasonable relation to “immediate, imminent, impending” public danger supports this most sweeping deprivation of constitutional rights. Military justified in adopting all reasonable means necessary no reliable evidence of disloyalty. Grounds (racial and sociological) not even w/in realm of military judgment. No evidence or findings that this necessary to control sabotage or espionage. AND no evidence that it would have been unmanageable to hold loyalty hearings. Dissent: Jackson . Fundamental assumption of system: guilt is personal and not inheritable . Constitution does not approve all that military may deem expedient. (Even if permissible as military procedure, not constitutional.) “A judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. Fine w/ passive allowance of military act just don’t ask for judicial stamp of approval. (Somewhat of a non -justiciable argument). C LASS N OTES : National immigration quotas are not violations of Constitution, even though most often racially based. Is the difference in Korematsu that the U.S. government arrested its own citizens? Compare to treatment of German-Americans. One response might be that Order under-inclusive by not including those of German or Italian dissent. (German Americans powerful voting block at the time). If Black could have one case back, it would be Korematsu . Amar: more understandable, even if disappointing, given context. 1. Plessy is still the law at this time. 2. We don’t have a real equal protection doctrine yet, especially in terms of federal government action (does the 14 th A apply?). 3. Most important, we’re in the middle of a war, and

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