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.
reject military finding that impossible to tell the loyal from the disloyal.
Cannot, by “calm pers
hindsight,” say these actions unjustified.
War power of the govt is power to wage war successfully.
Based solely on ancestry.
No reasonable relation to “immediate, imminent, impending” public danger supports
this most sweeping deprivation of constitutional rights.
Military justified in adopting all reasonable
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.
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
National immigration quotas are not violations of Constitution, even though most often racially
based. Is the difference in
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
Amar: more understandable, even if disappointing, given context. 1.
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
A apply?). 3. Most important, we’re in the middle of a war, and