tv Supreme Court Landmark Case Korematsu v. United States CSPAN November 14, 2015 7:00pm-8:31pm EST
collects all persons having business before the supreme court of the united states. >> landmark cases. stories ande human constitutional dramas behind 12 supreme court decisions. >> we will hear arguments and number 18. some of the most important decisions were ones that were quite unpopular. a few cases illustrate very dramatically what it means to
live in this society, 310 who have to stick together because they believe in >> welcome tow landmark cases. this is the story of korematsu .ersus united states fred korematsu was a japanese-american who challenge the right of the united states to intern japanese-americans. many japanese-americans were gathered up, 120,000 by some estimates. fred korematsu said this was not right. peter irons is a civil rights attorney.
he has written more than 10 books. in the course of researching his book on this case, he found proof that the government uses tainted evidence to convict fred korematsu. thank you for being here. korematsu is fred's daughter. she continues to fight for his legacy. karen: education and civil rights. educating the general public. peter: the issue is whether the government could single out a group of people based on their race.
they put them literally in concentration camps. without any sort of due process. underr this was justified the government's powers as they asserted them. fromotect the country potential espionage or sabotage .y members of this group it was issue that very few people were aware of at the time. especially away from the west coast. there was a lot of suspicion. they thought the japanese-americans might support japan. they thought was better to lock .hem up and put them away but does the president have the power to do this under the constitution? it is a landmark case because
upheldreme court, 6-3, the government's power to do this. fred korematsu had finally to the camp. that set a precedent. we can say today that that is very unlikely to happen. i don't really think it is. scalia said antonin this could happen again. alert ate to be on the all times. are we in a situation where some whether it is arab americans or any other group, could come under this kind of scrutiny? one of the dissenters said this principle lies around like a loaded weapon, ready for use.
>> was this particular to japanese-americans? there were threats of german submarines. karen: there were some german-americans and italian-americans who were put into some of the prisons and camps. but that was on a case-by-case basis. japanese-americans, they were singled out because they look like the enemy. were roundedthey up. it was racially based. even justice jackson and murphy, said that it had to do with racial discrimination.
>> in your book it says that there was a long history of bias against asian-americans. there was a law called the chinese exclusion act. peter: there had been hostility everd asian-americans since chinese emigrants came to this country at work on the railroads. there was a very powerful and it largelynt was from organized labor. which is sort of odd. they saw them as competition. called thessed a law chinese exclusion act.
at that time there were very few japanese-americans. they started coming around the turn of the 20th century. law thatpassed a singled them out as aliens ineligible for citizenship. japanese were the only people who could not become naturalized. they remained aliens even though they lived in this country for many many years. the children who were born here were birthright citizens. that is a controversial topic now. the hostility, especially when shut up and became aggressive in manchuria.
after the bombing of pearl month, for more than a there was no organized call to deport or intern japanese-americans. saying theyrs were are loyal americans. we don't need to give into the fears. but then the hearst press on the west coast and the politicians said we have to do this. this exerted pressure on president roosevelt. he finally capitulated and issue the order that gave the military personin and exclude any of any ancestry, but only
japanese-americans were singled out. karen: the japanese were doing so well up and down the west coast that a lot of people in agriculture were very jealous. they said that they are taking away our jobs. we go to other countries where we can get cheap labor. we went to japan and said come to america, it is the land of opportunity. that is how my grandfather came to america. it is similar to what we do today with the mexicans.
susan: you can call us. you can also send us a tweet. cases. use the #landmark or you could join us on facebook. the comments are already lining up under there. please join the conversation. is about the right of the government during a time of war to take away civil liberties. that is what the question was. it is relevant for own society today. video oning to show a japanese relocation.
roosevelt: -- franklin december 7, 1941 is a date that will live in infamy. narrator are west coast became a content told combat zone. determinedthorities that citizens and aliens alike would have to be scrutinized. the army provided fans to transport household belongings. they moved the people along to assembly centers. people cooperating wholeheartedly. they left behind shops and farms that they had worked for many years.
they were taken to racetracks and fairgrounds. they lived here until new pioneer communities could be created on federally owned land. lots of healthy and nourishing food for all. evacuees were met by an advance contingent of japanese. the newcomers looked about with some curiosity. the land was raw and untamed. here they would build schools and educate their children. reclaim the desert. this picture is actually the prologue to a story that is yet to be told.
the story will be fully told only when circumstances permit. when we enjoy the freedom that we in this country cherish. meantime, we're setting a standard for the rest of the world on how to treat people who may have loyalty to an enemy nation. susan: how to the country react? the reaction was very unusual. said,s propaganda film the great majority of japanese-americans cooperated because they had no choice. what would happen to their families?
the camps were not like this propaganda film said. most americans didn't think about it. it was not an issue that really concerned them. they were stuck away on indian reservations and in the mountains and in the desert. karen: how old was fred's when the order was given? he was 23 years old. he'd been a welder. enlist in the service. even before the draft.
he and his friends wanted to apply for the army. when i went to the post office, the military officer refused to give my father and application. and that was even before pearl harbor. but my father always wanted to support the military effort. go to welding school and get his license. he worked in the shipyards. fired as pearlas harbor got closer. just because he was japanese. he was an american citizen.
peter: the president issued an executive order it was later followed up by an act of congress. what it did was to empower the commander on the west to exclude persons from designated military zones. all the way from the canadian border to mexico. inward several hundred miles. the order was open-ended. it was only applied to japanese-americans. the issue these exclusion orders that said they had to report within a week.
they went to these assembly centers and is the propaganda film said they were on racetracks and fairgrounds and the conditions record terrible. terrible.tually this motivated several to refuse toicans work for internment. they violated curfew the general dewitt had imposed on japanese-americans. the cases all went to the supreme court. susan: our next video has fred korematsu. fred: my parents were all around
the radio listening. they did not say very much. the pews the police came down -- a few days later the police came down and confiscated everything. theytook everything that thought someone could use for signaling. my parents were very proud people. they talked about the samurai. after pearl harbor, they kept to themselves. they were afraid to talk about. we thought the exclusion order would only be for aliens. i do not think the government would include american citizens.
karen: everyone of japanese -- along thelosed west coast had to go to the camps. my father was old enough to be more independent. he learned about the constitution in high school. he knew that he had civil rights as american citizen. he thought that american citizens would be protected. hee this order was issued, did not think it was right.
due process was thrown out the window. , noe were no hearings access to an attorney. to get on with his life. he had an italian-american .irlfriend that, to want to stay behind because you want to stay with your girlfriend. he just wanted to be an american. he was also recorded -- on a street corner near oakland
california. he went into a store to buy cigarettes. he was spotted. all of a sudden the police showed up. that the military police came and took the jail. they did not know what to do with him. peter: the initial steps were very rudimentary. he wound up in a federal jail. directorsited by the of the northern california aclu.
he had read about fred's arrest in the newspaper. he was hoping to find somebody .ho would undertake a test case the case had no guarantee of success whatsoever. there were two other japanese-americans who picked up. they held a trial. it lasted less than one day. the fbi agent was the only witness. there were only two questions, are you a japanese-american and did you violate the exclusion order? the judge instructed the jury that they had to find fred guilty.
his defense attorney tried to argue constitutional issues but the judge dismissed them. after the judge declared the fred was guilty, the sentence he imposed was probation. as soon as he posted the small , he was walking out of the courtroom as a free man. the military police were standing in the doorway. they said we have orders to take him into custody. the lawyer said the judge put him on probation. we are sorry those are our orders. last freedom he had before he was sent to the internment camp. susan: when you spoke your
father, do you think he understood the significance of this decision? karen: i don't think he really knew the impact of it. his decision was very simple. he thought the government was wrong. he was able to take a stand. he lived by his principles. he was a kind and gentle person. he truly believed in what he was doing. how do other japanese-americans react to this? karen: he went to the detention assembly center.
vilified because they thought if they associated with them some harm i come to them. basically he was ostracized. it was not a big issue in our family. there was no falling out with the brothers. later on they became closer again. peter: there were no real alternatives. you could either go to the camps duress, or goer to jail.
there was no other choice. fred took the one that was a very minority view of being willing to undergo the legal andess of being convicted risk going to the prison for a year. they finally sent him to one of the camps. when his case went through the courts. people have any or fory for fred japanese-americans in general. the military was tremendously hostile. that a dewitt had said -- there is no way to determine their loyalty.
susan: you saw the propaganda film. now we can show you video of the next stop in fred korematsu's saga. we would like to start taking telephone calls. jordan: i like to thank c-span. this is very informative. i am a brand-new attorney who just passed the florida bar. it really looks at the side of the law that you just don't get law school.
what is this rank as one of the worst in the court's history? again,his really happen this blatant violation of due process? i will quote justice antonin scalia. i don't often agree with him. said korematsu ranked ash dred scott and plessy the three worst decisions ever in the supreme court. the question of whether this can happen again. the court has never overturned the korematsu decision. technically it is on the books. jackson, thatce
it lies around like a loaded weapon. we might say of course this won't happen again. but to think that history can never be itself is really not something we should do. susan: how did the authorities differentiate japanese-americans from other asians? karen: at the time the chinese thatittle lapel buttons said i am chinese. so they would not be confused with the japanese-americans. in their ownd communities at the time so was very easy to figure out where
safeguards so that if an order , thethis comes down again military will do exactly what they're told to do? peter: it goes back to the supreme court in 1943. what are the limits of the government's powers under the fortitution to issue orders national security? the courts have been very reluctant to intrude upon the power. they have judicial deference.
order,president gives an and says this is in support of my powers, the courts are reluctant to say that you have gone too far. you are going to hear about a of where the president was found to gone too far, with the steel seizure's case. but during world war ii there was no real check on the president's power. theonly check was conscience of the justices of the supreme court. steve: korematsu's greatest
asian-american i can think of. it really has implications for the united states versus edward snowden. the absence of judicial review is a very confusing precedent. the war on drugs, and the war on terror. as long as you use the word war, the government has all the power. nobody has ever mentioned the
lost property rights of 120,000 japanese-americans. it is called eminent domain. what the british did to the americans before the war of independence. separating japanese-americans from their property. is it because the government doesn't want to give reparations for slavery? susan: we saw in the video that people have bank accounts and businesses taken away. were those assets taken permanently? karen: for the most part people just lost everything.
some may have had some money returned to them but a very small percentage. host the japanese farmers were just renting the land. sometimes the caucasian neighbor would farm the land for the japanese neighbor. but that was not the majority of cases. my grandfather was able to buy land in east oakland.
there was a banker who rented out the land. when my family came back the greenhouse was badly damaged. most people lost everything. even though there were it didn'ts, compensate for what was lost. you can only bring what you can carry in your two hands. you had to sell it in a fire sale for $.10 on the dollar. in many cases the neighbors didn't think people were coming back. so they would get rid of the possessions or sell them or use them. it was terrible condition for human rights.
susan: the caller was concerned about the edward snowden case. peter: they are not exact a comparable. the government does have the power to prosecute people who actually harm the united states during wartime or even during peacetime. the point is that the japanese-americans had done nothing that was criminal. there was no crime they were accused of. ofthe whole premise roosevelt's executive order was wrong. there was not a single case of espionage were sabotaged any japanese-american. and you could say that was because they were all locked up. happened,efore that
the army and the navy and the fbi were looking everywhere they could for evidence that people were signaling to the japanese, trying to communicate with them. they found nothing. karen: my family was interned for almost three years. susan: we are going to show a video about the camp and see what it looks like today. narrator fred korematsu and his family would've arrived here in september 1942.
it would be the administrative area. more than 600 barracks all lined up. people in each block. this is where the korematsu family lived. this is a re-creation of one of the barracks. they were divided into six different rooms. this particular room that we have re-created is 20 feet by 20 feet. these are the cots where people slept.
they said we have to get on with our lives. the parents wanted schooling for their children. they created these makeshift classrooms. they were able to bring in some teachers. k --ember georgia tech takei, the actor who is thatn broadway, saying there was music and baseball teams and other things. there were even boy scouts and girl scouts. they tried to make the best of
the terrible situation they were in. susan: we have another video to show you. byis a home movie made another japanese-american internee. he recorded some of the scenes of what life was like. narrator: this is a shot of the evacuees doing the volunteer work of digging. the pipes used to break. crew would road repel the pipes. prepare -- repair the pipes.
hit.is a dust storm that everyone had to keep their windows shut tight it was very hot with no air-conditioning. that kept you cooked up inside your barracks. my brother came and he was wearing his u.s. army uniform and he kind to come through our regards to visit his family. susan: what about the men of military age? peter: it was confident his situation. at first the military resisted
any involvement by japanese-americans as soldiers. but they finally decided, mostly as a public relations gesture, that they would set up a composed oftalion japanese-americans, most of whom came out of the camps to volunteer. they serve their country fighting against an enemy that concentration camps. they were sent to the european theater. they fought very valiantly in italy. they suffered the most casualties and were the most decorated battalion. inouye ofniel in a hawaii for the war.
some men resisted the draft. they said as long as we're being locked up because of our race, why should we fight for a country that treats us like this? some of them were convicted and sent to prison. war,dent truman, after the pardoned them. as army treated them special case. it was a segregated army. but fought for the country they were not treated as real americans. susan: question 27 on this look what -- loyalty form.
not a very liberal state. how did the dissenters on the supreme court, how did they make their judgment? what was the reason for dissenting? susan: we will hold that question until we get to that. the introduction to your program uses justice breyer talking about the rule of law. the bill of attainder and the .ight to a trial by jury
how could that be ignored by someone like justice douglas? time inknow that at one the administration of president japanese-american was three persons away from being president of the united states? ouye was the president pro tem of the senate. and his friends were put into places like the internment camps. thank you very much for this program.
peter: the idea that when something terrible happens in a country, where we take our rights were seriously. once we have advanced past that. the same thing happened with school segregation. sense past that but in a we never left it behind. schools are still segregated in many places. the idea that things like this .an't happen again members of the supreme court take an oath to defend the constitution.
all of these protections were ignored by the supreme court in the korematsu case. i was aware that one of became a veryers distinguished civic leader in denver. i received a civic award that was dedicated to him. that that after 9/11 the act of congress, the patriot reminds us that this could happen again. we must be forever vigilant.
the attorney general. asking the president's secretary to alert him to the situation on the west coast. talks about public pressure to move them out of california. they talk about the suspension of the writ of h habeas corpus. very concerned about the legal limitations of the internment. this document came from the attorney general to fdr. he says there was a racist element in the discussion. that west coast people distrust the japanese.
he also says that there is no evidence of imminent attack and no evidence of sabotage. so he is resisting the fundamental arguments in favor of the internment. here's the actual text of the executive order. specific inl that terms of which nationalities or ethnic groups might be affected. departmentt the war can create military exclusion zones. these were pretty large areas on the west coast. japanese-americans would be
moved into internment camps. see that there were people who predicted a court challenge. peter: after fred was convicted, there was an appeal. it went to the ninth circuit court of appeals. the appeals court just sent it on to the supreme court. the supreme court had her cases on the curfew. the curfew was much less of a burden on japanese-americans. itself was the issue before the court. it is very clear now in hindsight that the court was misled. but even more importantly, is
that it was clear at the time that the attorney general and the lawyers said that we can do this, it violates the constitution. one of the great tragedies of american law. the solicitor general got up before the supreme court and said this is something we have to do because the president and the congress have decided on it. we are not going to second-guess them. there are americans who were lying at the bottom of for a harbor who killed by the japanese. susan: the justices were really imbued with a lot of patriotism during the time of war.
peter: in contrast to the curfew decision in fred's 6-3.was a split decision, some of the most liberal justices on the court. , who wroteo black the opinion upholding fred korematsu's conviction. justice william o douglas. justice felix frankfurter. there were three justices who dissented. scholarnstitutional agrees that these dissents completely obliterate the reasoning in the majority opinion.
they may too serious points. deference to the executive is not the function of the courts, even in wartime. also, that this was decided simply on the basis of race. murphy said it was a legalization of racism. soon one of the most noted ,aw professors, eugene ross now wrote an article in the year law aurnal where he called it constitutional disaster. it wasn't just that we are saying it today. there was great criticism of it at the time. susan: i want to get some of
fdr finally got his wish. these were people who owed institutional loyalty to the president. peter: in this particular case, during wartime, it is very hard for anybody, including a member of the supreme court, to say as -- that the president was wrong and what would be the implications of that. susan: the court said, yes. and the second question, should fred korematsu's conviction be upheld? and the court said, yes. and it was a 6-3 decision. i want to hear a look -- a black bit of what you go
-- hugo black said. in your book, you noted it started out with the decline of racism. how did it switch? peter: because like many people, you can believe in one thing and the exact opposite at the same time to make an argument. justice black did say racism is wrong. korematsu was not convicted did -- because of hostility to him or his race. susan: i will read a bit of that. "he was not excluded because of hostility to him or his race, he was excluded because we are at war with the japanese empire. military authorities, decided that the urgency of the situation demanded that all citizens of japanese ancestry be separated. congress, as inevitably it must, determined that they must have the power to do just this."
so what is notable about that ?peter: there are several that? peter: there are several aspects that are notable. the judiciary has no means in this. the president could not sentence people to death without a trial in the civilian court. you could not intern people indefinitely. without a trial in civilian court. so that aspect of it was wrong. secondly, this is just in that, as both you and i quoted, justice black said that he was not convicted because of his race. and that was wrong. that is what the dissenters pointed out, including justice murphy.
who pointed out that this whole thing was based on racial assumption. dewittd quoted general earlier as a saying, there is no such thing as "a loyal japanese." the military argued the reason for the interment was there was no way to sort out the loyal from the disloyal. or as general dewitt put it, the goats from the sheep. he said it was impossible to do that. they accepted that. susan: here's something from justice jackson's dissent. one of three in the case. he said that guilt is -- personal, not inheritable. even if all antecedents had been convicted of treason, the for itstion for bids penalties. here is an attempt to make otherwise innocent acts a crime merely because such criminal
law, i suppose this court should refuse to enforce it." peter: that's a powerful statement. the dissent of justice holmes in many famous cases, for example, that in abrams v. united states, those dissents are the expected version of what the constitution means. the majority opinions have gone down. the only problem is that in fred's case, the decision remains on the books. because the president, the supreme court, has never revisited the case or said flatly, we were wrong. karen: when did in the camps close? karen: at various times. people actually left in
different stages. the thing is, the evidence was already there, even day one when people started going into these concentration camps. these were not dangerous people. there was no military necessity. so you know, at some point, the government was saying, well, what do we do with the 120,000 people when they all are going to leave the camps? so, the community leaders, they got them to go in and help people to get jobs. you could go east before the end of the war, but you cannot go west. that is what my father did, which was surprising for me to learn since he already had a federal conviction. susan: we will take more calls. gladys in pittsburgh. caller: good evening. i just wanted asked the panelists if they think this was completely racist to the japanese. germans were not interned.
they were not bound. italians were not interned. they were not bombed. why would the japanese interned? thank you. susan: we certainly did bomb germany. not with the atomic bomb. but what about interment? karen: it was clearly racist, and that lesson is relevant today. i mean korematsu v. united , states was about racial prejudice, clearly, and those lessons need to be learned. that is what brings relevancy to it, especially this situation after 9/11. my father was one of the first people to speak up, along with the japanese-american citizens' league, when they talk about
rounding up americans and putting them in concentration camps. susan: do you think korematsu would have been decided differently if roosevelt's court packing went through? peter: it actually did go through, because of the conservative justices he wanted to replace actually left the court monday ord or retired -- they died retired, so he replaced them with his own choices. in a sense, what we are indicting here, and i think it is an indictment of the court, is the assumption that if these are good, liberal civil liberties, civil rights supporters, how could they do something like this? there are two points to consider. one, as i pointed out earlier, is that they were motivated largely by patriotism. that it was not their function to tell the president, during a time of war, that he could not take these kinds of steps. second, that they were misled. they were lied to by the
government. the supreme court was lied to. that was the impetus in the 1980's for reopening fred's case so he could have the trial he never had the first place. susan: on twitter, we are asked, " hard to believe that one of the greatest justices of all black,ho go -- hugo offered the majority opinion in korematsu." peter: in this case, he had a personal connection. it was a good friend who had lived for a time with general dewitt. he was a veteran of world war i and intensely patriotic about that. so, in a sense he was blinded by those dual loyalties, his loyalty to the president, his loyalty to the military, and general dewitt in particular.
when the arguments were made that fred's conviction violated the constitution, he changed gears. he stopped being the person he usually was. in black's case, it was a sad thing. he could have and the initial vote was 5-4. justice douglas switched his vote at the last minute. if they had stayed true to their swayedles and not been by wartime pressures, we not be here talking about the case, because it would have been reversed. and the interment would have been seen for what it is, a of power.
susan: david is in brentwood, tennessee. caller: i never really liked alarmists, but looking forward, i wonder, in the unlikely event that nuclear bombs go off in our land, what do you think, in your expert opinion, is the likelihood that it would of muslims or a religious class? peter: this was proposed after 9/11. there were thousands of arabs and muslim americans rounded up, some of them detained for lengthy periods of time. there is a lot that is going on challenging that. so the idea that it could not happen again, it's sort of wishful thinking. i would like to believe that we learn from our mistakes. it is encouraging to think that today's generation, particularly young people, have more of an appreciation for the rights they enjoy as americans.
but, there are enormous pressures, particularly during times of war, as one of the judges pointed out. the judge who vacated his conviction in 1983 pointed out that during crisis, we have to be especially vigilant to protect our rights. susan: i will show another piece of video. his conviction had been upheld by the supreme court. he traveled to the midwest of the united states. this piece of video is from 1998, and it takes place at the white house. bill clinton: in the long search for justice, some names of ordinary citizens stand for millions of souls.
plessy. brown. parks. for that distinguished list, today we add the name of fred korematsu. [applause] susan: karen, what was the path from the supreme court to the president of the united states giving him the medal of freedom? tell us the story. karen: he was able to leave the topaz concentration camp to pursue a job opportunity. first, he went to salt lake city.
i almost died of there of pneumonia. that is when he met and married my mother. they could not get married in south carolina, where she was from. they got married in detroit. susan: interracial marriage? karen: yes. susan: what about the legal side of the case? what happened? peter: this is one of the great experiences you never anticipate. back in 1981, i decided to write a book about these cases, an academic book, really. you have a copy of it, it is called "justice of war." in the research for the book, i learned about these cases in law school in my constitutional law class. we read them.
everybody agreed these were terrible cases, terrible decisions. my question was how could this happen, with all these liberal justices to make such a terrible mistake? i started researching it. i came up with documents. in the government's own file, it showed that during the prosecution of these cases, before the supreme court, lawyers had warned charles fahey that the evidence he was playing -- planning to present, that there was evidence of espionage, that it was absolutely false. the fbi had found no evidence to support it. they had all agreed there was no evidence to support this. he demanded, he said it is highly unfair to this racial
minority that these lies about them in an official publication go on corrected. the solicitor general in 1994, he stood up before the supreme court and said, standing behind every word in light of the military report, claimed there had been asked of espionage and cts of espionage and sabotage. we found these documents, me and other researchers. we put together a legal team in san francisco, portland, seattle, where the three cases started, and filed suits under a provision that means you can go back to court even if after you have served your sentence, even then, you can if you have evidence the government has committed misconduct. in all three cases, the judges agreed the government had lied to the supreme court. so they vacated them. the decision and fred korematsu's case was a powerful
symbol of the fact that we can correct our mistakes. susan: staying with the story. there was a commission created to look into the interment process. they decided to do what? karen: during the reagan administration, the redress of reparations movement started. just before my father's case was reopened. through the war relocation authority, they were reviewing how the japanese-americans were treated during the incarceration. when people in my community got wind that my father is going to reopen his case, there are people that were not in favor of that. they thought that if my father lost, korematsu vs. united states, that would hurt their chances. my father, as he said before, said he wanted to go on with
this. people took risks. the legal team took a risk. so, but my father was determined to go along with this. susan: ultimately the commission found that the japanese who were interned were found to be due reparations. how much money did they get and how was it done? peter: there was an official apology issued by president reagan, who initially opposed reperation. it was interesting, because it is -- his mind was changed by conservative members of congress, including leading republicans, who said this is something this is important and it needs to be done.
congress voted that each surviving in tourney -- in ternee, about 60,000 of the 120,000, we get a check for -- would get a check for $20,000. that's people saying, the government didn't do it, we didn't do it, that was years and years ago. why should we pay reparations? and i always tell people when this comes up, if you were put in a concentration camp without charges, put into the desert for three years, how much money would it take for you to do that? no one would do it for $20,000. karen: the money wasn't important. it was the apology. here, these japanese-americans had done what the government wanted them to do to prove they were good americans. they carry that we on their shoulders for years.
that was more important than the money, but sometimes you don't get the government's attention unless you talk about money. susan: your father continued his advocacy until the end of his life. he filed amicus briefs. the korematsu institute was formed. what do you do there? karen: we teach kids, we provide that for teachers for free. we have no elementary, middle -- we have elementary school, high school, middle school lesson plans. we established korematsu day in california.
marty brock instituted a legislative bill that governor schwarzenegger later signed in 2010 establishing korematsu day for the state of california in perpetuity on my father's birthday of january 30. susan: do you get any legal advocacy? karen: i do, and on a personal side, especially on issues of civil rights, when i'm asked to support in amicus briefs, i do that as well. susan: we have 10 minutes left. we talked about the implications for today, but let us finish on that note. i want to play a clip from justice breyer. he is talking about the courts reasoning in korematsu and compares it to decisions about guantanamo.
it is very much in the news. justice breyer: they thought that, well, we can't get involved. it's the military trying to protect us from invasion. now, we run the war or roosevelt runs it, and we cannot run it. we have to let him do what he wants. now going back to the guantanamo question, what i think is the very, very difficult and very important question in this area is, is there a role for the court to protect basic individual human rights, guaranteed in the constitution, in time of war without turning the constitution into a suicide pact? it is not a suicide pact. the president and the congress have to have and they do have in the document, adequate power to protect the country. does the court just get out of the way and say no, it is some
one else's job, or does the court make some effort to reconcile these two competing and opposite necessities? in guantanamo, they tried the latter. i want people to understand what it is the court did. it won't be for many years before people know whether the court was right or wrong. host: what did the court do? justice breyer: they decided in favor of the guantanamo prisoners. susan: so there are two threads of legal legacy here. korematsu reminds us of racial-based law, and the other reminds us of detention and work -- war powers. i will put this on the screen. harper versus the virginia board of elections, a 1966 case, the university of california regents v. bakke on affirmative action
policy, hamdi v. rumsefled, 2004. that was the dissent you referenced. when we look at how it has influenced the american judicial system, what have we learned? peter: the decisions we made years ago are under conditions that are different than they are now. what justice breyer pointed out, quite rightly, is that we cannot classify citizens anymore, or any person, for that matter, simply on the basis of their race or ethnicity. forbiddenr bid in -- by the constitution, the due process clause, and the equal protection process.
what we can do is individualize and target protection of the country against specific threats and dangers. for example, if there is a credible threat that a particular person or even a member of a particular group is planning or about to carry on harm to the united states, and this is in the news now with airplane bombings, the government has the power to detain that person for a reasonable period. and if they have evidence, they can bring them into court. they will have a lawyer, hearing, they can testify on their own defense. it is the government's burden to show this person is a danger. that could not happen in the interment cases. there was a blanket exception that simply being
assumption that simply being japanese-american, whether born in this country or born abroad, that you were by implication disloyal to the country. that is the principle that just breyer said, quite rightly, conflicts with the idea of the guiltless individual in our society. susan: justice scalia never allowed cameras to come into his speeches, but we do have his words onscreen to show you what he said. "you're kidding yourself if you think the same thing will not happen again. in times of war, the laws fall silent. that's what happened. the panic about the war, that is what happens. it was wrong, but i would not be surprised to see it happen again in times of war. it is no justification, but it is the reality." what is your reaction to that karen ?karen: unfortunately,
? karen: unfortunately korematsu , v. united states in 1944 is more relevant today than it was then. currently, the lessons in many cases have not been learned. we keep, you know, repeating these mistakes. four justice scalia to make that quote now is very scary. that why -- that is why it is so important that we teach these lessons of history, so that we do not keep making these mistakes. supreme court rule should not be in times of war, the law falls silent. there is nothing wrong with the constitution, as people try to change it, it is some of the people who try to interpret it for their own use. my father felt like it applied to him, as it should for all
americans. susan: another lesson about the court is that people can appeal cases. korematsu got to make it. what do you say about that? peter: you can take your case the highest court in the land. but that does not mean they will hear the case, they only hear about 1% of the cases that are brought up. or that they will rule in your favor. getting to the supreme court is the first step. the most important thing is how the court decides the case and what the lasting consequences of that are going to be. i don't think justice scalia was endorsing the interment or the korematsu decision. in fact, he was deploring it. what he was saying is that we are kidding ourselves if we think this can't happen again,
or that the courts are going to say no, you can't do it. the court, in the end, is swayed by factors other than the text of the constitution. they are swayed by public pressure, patriotism, personal loyalty, the president who appointed them, judicial philosophies, and all of those things come together in a crucible of intense disagreement and debate over what are we going to do with this society to protect ourselves and also to protect our citizens? susan: next week's case will be one in which the courts did up president, to the harry truman, during the korean war, when he tried to use executive power to seize the steel mills. i want you to look into a book which has a synopsis of each of the cases. it talks about what happened
during the case, from excerpts. find it on a website, and find -- on our website, c-span.org and find out how you can get it sent to your home. special thanks to the national constitution center for helping put together this landmark cases series. thank you to karen korematsu for telling us the story of korematsu versus the united states. thank you. ♪
>> are landmark cases series continues on monday with a look at a case dealing with the steel industry labor dispute during the korean war. united steelworkers of america threatened to trigger a strike that would have shut the industry down and president truman ordered an executive order for the u.s. government to seize and operate the mills. the strike wasal