Law: Bad Landmark

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Righting a racial wrong

Fred Korematsu was a name that had lived in constitutional infamy. The Oakland-born steel welder refused to obey a 1942 military order banning all people of Japanese ancestry from San Leandro, Calif. As a result, he was called a "Jap spy" in a newspaper headline, sentenced to five years' probation and removed to a detention camp. The U.S. Supreme Court upheld his conviction and the evacuation order, thereby enshrining his name as a legal landmark. Later, when many began to question the internment of 100,000 Japanese-American citizens, Korematsu vs. United States was known to jurists as a rare case in which the Supreme Court upheld the singling out of a racial minority for adverse treatment.

Last week, however, Korematsu was finally and formally cleared when a federal judge in California threw out his conviction. Korematsu had gone back to court early this year to argue that the Government had made false statements in support of the evacuation. His new case rested in part on materials obtained through the Freedom of Information Act by Peter Irons, a political scientist at the University of California at San Diego. In one such document, FBI Director J. Edgar Hoover stated that he could find no evidence to support the War Department's contention that West Coast Japanese were signaling Japanese warships off the coast.

The Justice Department did not acknowledge any Government misconduct, but decided against fighting the case on the ground that the evacuation program was "an unfortunate episode in our nation's history" that would best be "put behind us." U.S. District Judge Marilyn Patel pronounced the Government's mealymouthed statement "tantamount to a confession of error." She added that the Supreme Court's decision was "based on unsubstantiated facts, distortions and misrepresentations.''

Nevertheless, the Supreme Court precedent created by Korematsu's case remains the law of the land. Ironically, Justice Hugo Black's majority opinion, which stated for the first time that racial classifications were constitutionally "suspect," helped establish a foundation for decisions striking down racial discrimination. But Black also found that "pressing public necessity may sometimes justify" restrictions on racial groups. That is worrisome, says Stanford Constitutional Scholar Gerald Gunther. "The unsettling aspects of Korematsu are not removed by the fact that 40 years later someone can say that it shouldn't have happened."

As for Korematsu, 63, he is now an Oakland draftsman and is "very pleased and satisfied with the ruling. I don't have a criminal record any more." Why had he not sought a pardon to erase that record? "If anyone should do any pardoning," he said quietly, "I should be the one pardoning the Government for what they did to the Japanese-American people."