The Presidency: Constitutional Controversies

Founding Principles

Due Process

The government must interact with all citizens according to the duly-enacted laws; applying these rules equally among all citizens.

Equal Protection

The principle of equal justice under law means that every individual is equal to every other person in regards to natural rights and treatment before the law. There are no individuals or groups who are born with the right to rule over others.

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Liberty

Except where authorized by citizens through the Constitution, the government does not have the authority to limit freedom.

Property Rights

The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

Case Background

Tension between liberty and security, especially in times of war, is as old as the republic itself. Should the text of the Constitution be interpreted one way in peacetime and another way in wartime, as suggested for a unanimous Court in the World War I era by Justice Oliver Wendell Holmes in Schenck v. U.S. (1919)? “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as en fight, and that no Court could regard them as protected by any constitutional right.” After Japan attacked Pearl Harbor on December 7, 1941, the United States entered World War II, and faced once again the challenge of applying the Constitution’s guarantees in the context of wartime. Based on advice from the military that there was a real threat of Japanese invasion of the west coast, as well as a credible danger of Japanese espionage, the U.S. government ordered the relocation and detention of Japanese Americans living in that region. From April of 1942 until the end of the war in September of 1945, 110,000 persons of Japanese ancestry, most of them U.S. citizens, were deprived of their liberty and held in detention camps far from their former homes. They lost most of the property they had entrusted to government authorities, but had no way of documenting their losses because they only had a few days’ notice to dispose of their property before reporting to assembly centers for relocation. The surprise attack on Pearl Harbor was very real, as was the fear engendered by it. How real was the threat of espionage?

Faced with extensive questioning on this point by the Supreme Court in oral argument, Solicitor General Charles Fahy convinced a majority of the Justices that the detention of Japanese Americans was justified by “military necessity.”

Key Question

Directions

Read the Case Background and Key Question. Then analyze the Documents provided. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of the Documents as well as your own knowledge of history.

Learning Objectives

• Students understand the major events related to the internment of Japanese Americans during World War II.
• Students understand and apply constitutional principles at issue in Korematsu v. U.S. to evaluate the Supreme Court’s ruling in that case.

Activities

1. To prepare students for this lesson, have them read the background essay, Handout A: Korematsu v. U.S., and answer the questions.
2. Lead students to develop a timeline on the board to show the significant events described in the background essay.
3. Ask students: “If your family had 48 hours to dispose of your home, car, and all other property before being forced to move into distant temporary housing, which of your inalienable rights might be in jeopardy?” Discuss: Internees lost liberty AND property. Internees were forced to sell their businesses for terrible losses. For example, Representative Robert Matsui of California was 6 months old when his family was interned. His family had just 48 hours to relocate. His father was forced to sell their house in Sacramento for $50 and simply abandon his small produce business.
4. Assign appropriate documents for student analysis. Divide the class into five groups. Assign each group to study and report on documents as follows: (1) Documents A, B, C; (2) Documents D, E; (3) Documents F, H; (4) Documents G, I; (5) Documents J, K. Conduct a Moot Court according to directions in Appendix, p. 235.
5. After moot court activity, in which students have presented oral arguments and determined how they would decide the case, then guide the class to consider Documents L, M, and N. Compare students’ decisions to Supreme Court’s majority and dissenting opinions.
6. Guide the class to read and discuss Document O: Letter from President Bush to Internees (1991).
7. Guide the class to read and discuss additional documents, The Issue Endures and Document P: Duty of Absolute Candor: Katyal Blog Post (2011).
8. Wrap up by returning to the last question accompanying the Introductory Essay: Should the Constitution’s meaning change during times of crisis?

See RESOURCES for additional Graphic Organizers.

Materials

1. The United States Constitution (1789)
2. The Fifth Amendment (1791)
3. Ex Parte Milligan (1866)
4. A Date Which Will Live in Infamy (1941)
5. Franklin D. Roosevelt’s Infamy Speech (1941)
6. Information Bulletin Number 6 (1942)
7. Executive Order 9066, February 19, 1942
8. Executive Order 9102, March 18, 1942
9. Instructions to Japanese, April 1, 1942
10. Hirabayashi v. United States (1943), Majority Opinion
11. Memorandum, Biddle to FDR, December 30, 1943
12. Korematsu v. United States (1944), Majority Opinion
13. Korematsu v. U.S. (1944), Dissenting Opinion
14. Ex parte Mitsuye Endo, December 18, 1944
15. George H. W. Bush, Letter from President Bush to Internees (1991)
16. Duty of Absolute Candor: Katyal Blog Post (2011)

Extensions

Have students discuss the following:

• The late Supreme Court Chief Justice, William H. Rehnquist, explored the wartime powers of government in his 1998 book All the Laws But One-Civil Liberties in Wartime. He noted the pattern throughout our history, that in times of crisis the government’s powers are magnified regardless of constitutional limits. In his conclusion he wrote, “An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”
• Use Document P: Duty of Absolute Candor: Katyal Blog Post (2011) to discuss the discovery in the early 1980s of documents proving that the government’s attorneys had failed to present in the Supreme Court evidence that might have influenced their ruling in the case. The Supreme Court majority referred to the necessity that judges defer to the recommendations of the Executive Branch and the military during wartime. However, memos from the FBI and the Office of Naval Intelligence explicitly refuting claims of espionage and sabotage by Japanese Americans not shared with the Court. The discovery of this evidence suggests that the policy of internment may have been largely motivated by racial prejudice, as the dissenters in the Court’s opinion maintained. If we discover in the future some evidence of a well-concealed Japanese-American spy ring, how would that affect your opinion of this case?