 Smith Vs. All right. This is LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Smith Vs. All right. An opinion of the United States Supreme Court. Decided on April 3, 1944. Please note, this is a reading of the opinion of the court only. This reading does not include Justice Roberts' dissent. For ease of listening, this reading omits footnotes and legal citations found within the text of the court's opinion. Mr. Justice Reed delivered the opinion of the court. This writ of certiorari brings here for review a claim for damages in the sum of $5,000. On the part of Petitioner, a Negro citizen of the 48th Precinct of Harris County, Texas, for the refusal of respondents, election and associate election judges respectively of that precinct, to give Petitioner a ballot or to permit him to cast a ballot in the primary election of July 27, 1940. For the nomination of Democratic candidates for the United States Senate and House of Representatives and Governor and other state officers. The refusal is alleged to have been solely because of the race and color of the proposed voter. The actions of respondents are said to violate sections 31 and 43 of Title VIII of the United States Code in that Petitioner was deprived of rights secured by sections 2 and 4 of Article 1 and the 14th, 15th, and 17th Amendments to the United States Constitution. The suit was filed in the District Court of the United States for the Southern District of Texas, which had jurisdiction under Judicial Code Section 24, subsection 14. The District Court denied the relief sought, and the Circuit Court of Appeals quite properly affirmed its action on the authority of Grovey v. Townsend. We granted the petition for certiorari to resolve a claimed inconsistency between the decision in the Grovey case and that of United States v. Classic. The state of Texas, by its constitution and statutes, provides that every person, if certain other requirements are met, which are not here in issue, qualified by residents in the district or county, shall be deemed a qualified elector. Primary elections for United States senators, congressmen, and state officers are provided for by Chapters 12 and 13 of the statutes. Under these chapters, the Democratic Party was required to hold the primary, which was the occasion of the alleged wrong to Petitioner. A summary of the state statutes regulating primaries appears in the footnote. These nominations are to be made by the qualified voters of the party. The Democratic Party of Texas is held by the Supreme Court of that state to be a voluntary association, protected by section 27 of the Bill of Rights, Article 1, Constitution of Texas, from interference by the state except that, in the interest of fair methods and a fair expression by their members of their preferences in the selection of their nominees, the state may regulate such elections by proper laws. That court stated further, since the right to organize and maintain a political party is one guaranteed by the Bill of Rights of this state, it necessarily follows that every privilege, essential or reasonably appropriate to the exercise of that right is likewise guaranteed, including, of course, the privilege of determining the policies of the party and its membership. Without the privilege of determining the policy of political association and its membership, the right to organize such an association would be a mere mockery. We think these rights, that is, the right to determine the membership of a political party and to determine its policies of necessity, are to be exercised by the state convention of such party and cannot, under any circumstances, be conferred upon a state or governmental agency. The Democratic Party on May 24, 1932, in a state convention, adopted the following resolution, which has not since been amended, abrogated, annulled, or avoided. Be it resolved that all white citizens of the state of Texas who are qualified to vote under the Constitution and laws of the state, shall be eligible to membership in the Democratic Party and, as such, entitled to participate in its deliberations. It was by virtue of this resolution that the respondents refused to permit the petitioner to vote. Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution or in conflict with powers delegated to and exercised by the national government. The 14th Amendment forbids a state from making or enforcing any law which abridges the privileges or immunities of citizens of the United States and the 15th Amendment specifically interdicts any denial or abridgement by a state of the right of citizens to vote on account of color. Respondents appeared in the District Court and the Circuit Court of Appeals and defended on the ground that the Democratic Party of Texas is a voluntary organization with members banded together for the purpose of selecting individuals of the group representing the common political beliefs as candidates in the general election. As such a voluntary organization, it was claimed that Democratic Party is free to select its own membership and limit to whites participation in the party primary. Such action, the answer asserted, does not violate the 14th, 15th, or 17th Amendment as officers of government cannot be chosen at primaries and the amendments are applicable only to general elections where governmental officers are actually elected. Primaries, it is said, are political party affairs handled by party not governmental officers. No appearance for respondents is made in this court. Arguments presented here by the Attorney General of Texas and the Chairman of the State Democratic Executive Committee of Texas as Amiki Curie urged substantially the same grounds as those advanced by the respondents. The right of a Negro to vote in the Texas primary has been considered here to fore by this court. The first case was Nixon v. Herndon. At that time, 1924, the Texas statute afterwards declared, in no event shall a Negro be eligible to participate in a Democratic Party primary election in the state of Texas. Nixon was refused the right to vote in a Democratic primary and brought a suit for damages against the election officers. It was urged to this court that the denial of the franchise violated his constitutional rights under the 14th and 15th Amendments. Without consideration of the 15th, this court held that the action of Texas in denying the ballot to Negroes by statute was in violation of the Equal Protection Clause of the 14th Amendment and reversed the dismissal of the suit. The legislature of Texas reenacted the article but gave the state executive committee of a party the power to prescribe the qualifications of its members for voting or other participation. This article remains in the statutes. The state executive committee of the Democratic Party adopted a resolution that white Democrats and none other might participate in the primaries of that party. Nixon was refused again the privilege of voting in a primary and again brought suit for damages by virtue of Section 31 Title 8 of the United States Code. This court again reversed the dismissal of the suit for the reason that the committee action was deemed to be state action and invalid as discriminatory under the 14th Amendment. The test was said to be whether the committee operated as representative of the state in the discharge of the state's authority. The question of the inherent power of a political party in Texas without restraint by any law to determine its own membership was left open. In Grovey v. Townsend, this court had before it another suit for damages for the refusal in a primary of a county clerk, a Texas officer with only public functions to perform, to furnish Petitioner, a Negro, an absentee ballot. The refusal was solely on the ground of race. This case differed from Nixon v. Condon in that a state convention of the Democratic Party had passed the resolution of May 24th, 1932, herein before quoted. It was decided that the determination by the state convention of the membership of the Democratic Party made a significant change from a determination by the executive committee. The former was party action voluntary in character. The latter, as had been held in the Condon case, was action by authority of the state. The managers of the primary election were therefore declared not to be state officials in such sense that their action was state action. A state convention of a party was said not to be an organ of the state. This court went on to announce that to deny a vote in a primary was a mere refusal of party membership with which the state need have no concern. While for a state to deny a vote in a general election on the ground of race or color violated the Constitution, consequently there was found no ground for holding that the county clerk's refusal of a ballot because of racial ineligibility for party membership denied the petitioner any right under the 14th or 15th amendments. Since Grovey v. Townsend and prior to the present suit, no case from Texas involving primary elections has been before this court. We did decide, however, United States v. Classic. We there held that Section 4 of Article 1 of the Constitution authorized Congress to regulate primary as well as general elections. Where the primary is by law made an integral part of the election machinery. Consequently, in the classic case, we upheld the applicability to frauds in a Louisiana primary of Sections 19 and 20 of the criminal code. Thereby, corrupt acts of election officers were subjected to congressional sanctions because that body had power to protect rights of federal suffrage secured by the Constitution in primary as in general elections. This decision depended to, on the determination that under the Louisiana statutes, the primary was a part of the procedure for choice of federal officials. By this decision, the doubt as to whether or not such primaries were a part of elections subject to federal control, which had remained unanswered since Newbury v. United States was erased. The Nixon cases were decided under the Equal Protection Clause of the 14th Amendment without a determination of the status of the primary as a part of the electoral process. The exclusion of Negroes from the primaries by action of the state was held invalid under that amendment. The fusing by the classic case of the primary in general elections into a single instrumentality for choice of officers has a definite bearing on the permissibility under the Constitution of excluding Negroes from primaries. This is not to say that the classic case cuts directly into the rationale of Grovey v. Townsend. This latter case was not mentioned in the opinion. Classic bears upon Grovey v. Townsend not because exclusion of Negroes from primaries is any more or less state action by reason of the unitary character of the electoral process, but because the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the state. When Grovey v. Townsend was written, the court looked upon the denial of a vote in a primary as a mere refusal by a party of party membership. As the Louisiana statutes for holding primaries are similar to those of Texas, our ruling in classic as to the unitary character of the electoral process calls for a re-examination as to whether or not the exclusion of Negroes from a Texas party primary was state action. The statutes of Texas relating to primaries and the resolution of the Democratic Party of Texas extending the privileges of membership to white citizens only are the same in substance and effect today as they were when Grovey v. Townsend was decided by a unanimous court. The question as to whether the exclusionary action of the party was the action of the state persists as the determinative factor. In again entering upon consideration of the inference to be drawn as to state action from a substantially similar factual situation, it should be noted that Grovey v. Townsend upheld exclusion of Negroes from primaries through the denial of party membership by a party convention. A few years before this court refused approval of exclusion by the state executive committee of the party. A different result was reached on the theory that the committee action was state authorized and the convention action was unfettered by statutory control. Such a variation in the result from so slight a change in form influences us to consider anew the legal validity of the distinction which has resulted in barring Negroes from participating in the nominations of candidates of the Democratic Party in Texas. Other precedents of this court forbid the abridgment of the right to vote. It may now be taken as a postulate that the right to vote in such a primary for the nomination of candidates without discrimination by the state like the right to vote in a general election is a right secured by the Constitution. By the terms of the 15th amendment that right may not be abridged by any state on account of race. Under our constitution the great privilege of the ballot may not be denied a man by the state because of his color. We are thus brought to an examination of the qualifications for Democratic primary electors in Texas to determine whether state action or private action has excluded Negroes from participation. Despite Texas's decision that the exclusion is produced by private or party action federal courts must for themselves appraise the facts leading to that conclusion. It is only by the performance of this obligation that a final and uniform interpretation can be given to the Constitution the supreme law of the land. Texas requires electors in a primary to pay a poll tax. Every person who does so pay and who has the qualifications of age and residence is an acceptable voter for the primary as appears above in the summary of the statutory provisions set out in note 6. Texas requires by the law the election of the county officers of a party. These compose the county executive committee. The county chairman so selected are members of the district executive committee and choose the chairman for the district. Precinct primary election officers are named by the county executive committee. Statutes provide for the election by the voters of precinct delegates to the county convention of a party and the selection of delegates to the district and state conventions by the county convention. The state convention selects the state executive committee. No convention may place in platform or resolution any demand for specific legislation without endorsement of such legislation by the voters in a primary. Texas thus directs the selection of all party officers. Primary elections are conducted by the party under state statutory authority. The county executive committee selects precinct election officials and the county district or state executive committees respectively canvass the returns. These party committees or the state convention certify the party's candidates to the appropriate officers for inclusion on the official ballot for the general election. No name which has not been so certified may appear upon the ballot for the general election as a candidate of a political party. No other name may be printed on the ballot which has not been placed in nomination by qualified voters who must take oath that they did not participate in a primary for the selection of a candidate for the office for which the nomination is made. The state courts are given exclusive original jurisdiction of contested elections and of mandamus proceedings to compel party officers to perform their statutory duties. We think that the statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state insofar as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes. The duties do not become matters of private law because they are performed by a political party. The plan of the Texas primary follows substantially that of Louisiana with the exception that in Louisiana the state pays the cost of the primary while Texas assesses the cost against candidates. In numerous instances the Texas statutes fix or limit the fee to be charged. Whether paid directly by the state or through state requirements it is state action which compels. When primaries become a part of the machinery for choosing officials state and national as they have here the same test to determine the character of discrimination or abridgment should be applied to the primary as are applied to the general election. If the state requires a certain electoral procedure prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices practically speaking to those whose names appear on such a ballot it endorses, adopts and enforces the discrimination against Negroes practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary. This is state action within the meaning of the 15th amendment. The United States is a constitutional democracy. It's organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be as this court said in Grovey versus Townsend no concern of a state but when as here that privilege is also the essential qualification for voting in a primary to select nominees for a general election the state makes the action of the party the action of the state In reaching this conclusion we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error this court has never felt constrained to follow precedent. In constitutional questions where correction depends upon amendment and not upon legislative action this court throughout its history has freely exercised its power to re-examine the basis of its constitutional decisions. This has long been accepted practice and this practice has continued to this day. This is particularly true when the decision believed erroneous is the application of a constitutional principle rather than an interpretation of the constitution to extract the principle itself. Here we are applying contrary to the recent decision in Grovey versus Townsend the well-established principle of the 15th amendment forbidding the abridgment by a state of a citizen's right to vote. Grovey versus Townsend is overruled. Judgment reversed. End of Smith versus Allright an opinion of the United States Supreme Court. Part 1 of Korematsu versus United States This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org Recording by Kelly Robinson in Birmingham, Alabama Korematsu versus United States an opinion of the United States Supreme Court Part 1 Decided on December 18th, 1944 Please note, Part 1 is a reading of the opinion of the court only. This reading does not include a reading of Justice Frankfurter's concurrence, Justice Robert's dissent, Justice Murphy's dissent, or Justice Jackson's dissent. For ease of listening, this reading omits footnotes and legal citations found within the text of the court's opinion. Mr. Justice Black delivered the opinion of the court. The petitioner, an American citizen of Japanese dissent was convicted in a federal district court for remaining in San Leandro, California a military area contrary to civilian exclusion order number 34 of the commanding general of the Western Command United States Army which directed that after May 9th, 1942 all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed and the importance of the constitutional question involved caused us to grant certiorari. It should be noted to begin with that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions. Racial antagonism never can. In the instant case, prosecution of the petitioner was begun by information charging violation of an act of Congress of March 21st, 1942 which provides that whoever shall enter, remain in, leave or commit any act in any military area or military zone prescribed under the authority of an executive order of the president by the Secretary of War or by any military commander designated by the Secretary of War contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander shall if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year or both for each offense. Exclusion order number 34 which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations all of which were substantially based upon executive order number 9066 that order issued after we were at war with Japan declared that the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material national defense premises and national defense utilities one of the series of orders and proclamations a curfew order which like the exclusion order here promulgated pursuant to executive order 9066 subjected all persons of Japanese ancestry and prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. as is the case with the exclusion order here that prior curfew order was designed as a protection against espionage and against sabotage in kiyoshi hirabayashi versus United States we sustained a conviction obtained for violation of the curfew order the hirabayashi conviction and this one thus rest on the same 1942 congressional act and the same basic executive and military orders all of which orders were aimed at the twin dangers of espionage and sabotage the 1942 act was attacked in the hirabayashi case as an unconstitutional delegation of power it was contended that the curfew order and other orders on which it rested were beyond the war powers of the congress the military authorities and of the president as commander in chief of the army and finally that to apply the curfew order against none but citizens of Japanese ancestry was mounted to a constitutionally prohibited discrimination solely on account of race to these questions we gave the serious consideration which their importance justified we upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack in the light of the principles we announced in the hirabayashi case we are unable to conclude that it was beyond the war power of congress and the executive to exclude those of Japanese ancestry from the west coast war area at the time they did true exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. nothing short of apprehension by the proper military authorities the greatest imminent danger to the public safety can constitutionally justify either but exclusion from a threatened area no less than curfew has a definite and close relationship to the prevention of espionage and sabotage the military authorities charged with the primary responsibility of defending our shores concluded that curfew provided inadequate protection and ordered exclusion they did so as pointed out in our hirabayashi opinion in accordance with congressional authority to the military to say who should and who should not remain in the threatened areas in this case the petitioner challenges the assumptions upon which we rested our conclusions in the hirabayashi case he also urges that by May 1942 when order number 34 was promulgated all danger of Japanese invasion of the west coast had disappeared after careful consideration of these contentions we are compelled to reject them here as in the hirabayashi case we cannot reject as unfounded the judgment of the military authorities and of congress that there were disloyal members of that population whose number and strength could not be precisely and quickly ascertained we cannot say that the war-making branches of the government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it like curfew exclusion of those of Japanese origin was deemed necessary because of the presence of an unassertained number of disloyal members of the group most of whom we have no doubt were loyal to this country it was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group in the instant case temporary exclusion of the entire group was rested by the military on the same ground the judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin that there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion approximately 5,000 American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese emperor and several thousand evacuees requested repatriation to Japan we uphold the exclusion order as of the time it was made and when the petitioner violated it in doing so we are not unmindful of the hardships imposed by it upon a large group of American citizens but hardships are part of war and war is an aggregation of hardships all citizens alike both in and out of uniform feel the impact of war in greater or lesser measure citizenship has its responsibilities as well as its privileges and in time of war the burden is always heavier compulsory exclusion of large groups of citizens from their homes except under circumstances of direst emergency and peril is inconsistent with our basic governmental institutions but when under conditions of modern warfare our shores are threatened by hostile forces the power to protect must be commensurate with threatened danger it is argued that on May 30th, 1942 the day the petitioner was charged with remaining in the prohibited area there were conflicting orders outstanding forbidding him both to leave the area and to remain there of course a person cannot be convicted for doing the very thing which it is a crime to fail to do but the outstanding orders here contained no such contradictory commands there was an order issued March 27th, 1942 which prohibited petitioner and others of Japanese ancestry but its effect was specifically limited in time until and to the extent that a future proclamation or order should so permit or direct that future order the one for violation of which petitioner was convicted was issued May 3rd, 1942 and it did direct exclusion from the area of all persons of Japanese ancestry before 12 o'clock noon May 9th furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21st, 1942 Act of Congress consequently the only order in effect touching the petitioners being in the area on May 30th, 1942 the date specified in the information against him was the May 3rd order prohibited his remaining there and it was that same order which he stipulated in his trial that he had violated knowing of its existence there is therefore no basis for the argument that on May 30th, 1942 he was subject to punishment under the March 27th and May 3rd orders whether he remained in or left the area it does appear however that on May 9th the effective date of the exclusion order the military authorities had already determined that the evacuation should be affected by assembling together and placing under guard all those of Japanese ancestry at central points designated as assembly centers in order to ensure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area number one to restrict and regulate such migration and on May 19th, 1942 11 days before the time petitioner was charged with unlawfully remaining in the area civilian restrictive order number one provided for detention of those of Japanese ancestry in assembly or relocation centers it is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him after departure from the area to report and to remain in an assembly or relocation center the contention is that we must treat these separate orders as one and inseparable that for this reason if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty the exclusion order and his conviction under it cannot stand we are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers although the only issues framed at the trial related to petitioners remaining in the prohibited area in violation of the exclusion order had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law that his presence in that center would have resulted in his detention in a relocation center some who did report to the assembly center were not sent to relocation centers but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted this illustrates that they pose different problems and may be governed by different principles the lawfulness of one does not necessarily determine the lawfulness of the others this is made clear when we analyze the requirements of the separate provisions of the separate orders these separate requirements were that those of Japanese ancestry number one depart from the area number two report to and temporarily remain in an assembly center number three go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities each of these requirements it will be noted impose distinct duties in connection with the separate steps in a complete evacuation program had Congress directly incorporated into one act the language of these separate orders and provided sanctions for their violations disobedience of any one would have constituted a separate offense there is no reason why violations of these orders in so far as they were promulgated pursuant to congressional enactment should not be treated as separate offenses the endo cases graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been affected since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center we cannot in this case determine the validity of those separate provisions of the order it is sufficient here for us to pass upon the order which petitioner violated to do more would be to go beyond the issues raised and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case it will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him and we have its terms before us some of the members of the court are of the view that evacuation and detention in an assembly center were inseparable after May 3, 1942 the date of exclusion order number 34 Korey Matsu was under compulsion to leave the area not as he would choose but via an assembly center the assembly center was conceived as a part of the machinery for group evacuation the power to exclude includes the power to do it by force if necessary and any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected but whichever view is taken it results in holding that the order under which petitioner was convicted was valid it is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry without evidence or inquiry concerning his loyalty and good disposition toward the United States our task would be simple our duty clear were this a case involving the imprisonment of a racial citizen in a concentration camp because of racial prejudice regardless of the true nature of the assembly and relocation centers and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies we are dealing specifically with nothing but an exclusion order to cast this case into outlines of racial prejudice without reference to the real military dangers which were presented that confuses the issue Korematsu was not excluded from the military area because of hostility to him or his race he was excluded because we are at war with the Japanese Empire because the properly constituted military authorities feared an invasion of our west coast and felt constrained to take proper security measures because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the west coast temporarily and finally because Congress reposing its confidence in this time of war in our military leaders as inevitably it must determine that they should have the power to do just this there was evidence of disloyalty on the part of some the military authorities considered that the need for action was great and time was short we cannot by availing ourselves of the calm perspective of hindsight now say that at that time these actions were unjustified affirmed end of part one part two of Korematsu vs. United States this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Korematsu vs. United States an opinion of the United States Supreme Court part two decided on December 18th, 1944 please note part two is a reading of Mr. Justice Roberts' Descent this reading does not include a reading of the court's opinion Justice Frankfurter's concurrence Justice Murphy's Descent or Justice Jackson's Descent for ease of listening this reading omits footnotes and legal citations found within the text of the court's opinion I Descent because I think the indisputable facts exhibit a clear violation of constitutional rights this is not a case of keeping people off the streets at night as was Kyoshi Hirabayashi vs. United States nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community nor a case of offering him an opportunity to be temporarily out of an area where his presence might cause danger to himself or to his fellows on the contrary it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp based on his ancestry and solely because of his ancestry without evidence or inquiry concerning his loyalty towards the United States if this be a correct statement of the facts disclosed by this record and facts of which we take judicial notice I need hardly labor the conclusion that constitutional rights have been violated the government's argument in the opinion of the court in my judgment erroneously divide that which is single and indivisible and thus make the case appear in a military order sanctioned by act of congress which excluded him from his home by refusing voluntarily to leave and so knowingly and intentionally defying the order and the act of congress the petitioner, a resident of San Leandro Alameda County California is a native of the United States of Japanese ancestry who according to the uncontradicted evidence is a real citizen of the nation a chronological recitation of events will make it plain that the petitioner supposed offense did not in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him there from critical attention must be given to the dates and sequence of events December 8th, 1941 the United States declared war on Japan February 19th, 1942 the president issued executive order number 9066 which after stating the reason for issuing the order as protection against espionage and against sabotage to national defense material, national defense premises and national defense utilities provided that certain military commanders might in their discretion prescribe military areas and define their extent from which any or all persons may be excluded and with respect to which the right of any person to enter remain in or leave shall be subject to whatever restrictions the military commander may impose in his discretion February 20th, 1942 Lieutenant General DeWitt was designated military commander of the Western Defense Command embracing the western most states of the Union about one fourth of the total area of the nation March 2nd, 1942 General DeWitt promulgated public proclamation number one which recites that the entire Pacific Coast is particularly subject to attack to attempted invasion and in connection therewith is subject to espionage and sabotage it states that as a matter of military necessity certain military areas and zones are established known as military areas numbers one and two it adds that such persons or classes of persons as the situation may require will by subsequent orders be excluded from all of military area number one and from certain zones in military area number two subsequent proclamations were made which together with proclamation number one included in such areas and zones all of California Washington, Oregon Idaho, Montana, Nevada and Utah and the southern portion of Arizona the orders required that if any person of Japanese German or Italian ancestry resided in area number one desired to change his habitual residence he must execute and deliver to the authorities a change of residence notice San Leandro the city of petitioners residence lies in military area number one on March 2nd, 1942 the petitioner therefore had noticed that by executive order the president to prevent espionage and sabotage had authorized the military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission he was on notice that his home city had been included by military order in area number one and he was on notice further that at some time in the future the military commander would make an order for the exclusion of certain persons not described or classified from various zones including that in which he lived March 21st, 1942 congress enacted that anyone who knowingly shall enter remain in leave or commit any act in any military area or military zone prescribed by any military commander contrary to the restrictions applicable to any such area or zone or contrary to the order of any such military commander shall be guilty of a misdemeanor this is the act under which the commissioner was charged March 24th, 1942 general DeWitt instituted the curfew for certain areas within his command by an order the validity of which was sustained in Hirabayashi vs. United States March 24th, 1942 general DeWitt began to issue a series of exclusion orders relating to specified areas March 27th, 1942 March 27th, 1942 the general recited that it is necessary in order to provide for the welfare and to ensure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area number one to restrict and regulate such migration and ordered that as of March 29th, 1942 all alien Japanese and persons of Japanese ancestry who are within the limits of military area number one be and they are hereby prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct no order had been made excluding the petitioner from the area in which he lived by proclamation number four he was after March 29th, 1942 confined to the limits of area number one if the executive order number 9066 and the act of congress meant what they said to leave that area in the face of proclamation number four would be to commit a misdemeanor May 3rd, 1942 general DeWitt issued civilian exclusion order number 34 providing that after 12 o'clock May 8th, 1942 all persons of Japanese ancestry both alien and non-alien were to be excluded from a described portion of military area number one which included the county of Alameda, California the order required a responsible member of each family and each individual living alone to report at a time set at a civil control station for instructions to go to an assembly center and added that any person failing to comply with provisions of the order who was found in the described area after the date set would be liable to prosecution under the act of March 21st, 1942 it is important to note that the order by its express terms had no application to persons within the bounds of an established assembly center pursuant to instructions from this headquarters the obvious purpose of the orders made taken together was to drive all citizens of Japanese ancestry into assembly centers within the zones of their residents under pain of criminal prosecution the predicament in which the petitioner thus found himself was this he was forbidden by military order to leave the zone in which he lived he was forbidden by military order after a date fixed in that zone unless he were in an assembly center located in that zone General DeWitt's report to the secretary of war concerning the program of evacuation and relocation of Japanese makes it entirely clear if it were necessary to refer to that document and in the light of the above recitation I think it is not that an assembly center was a euphemism for a prison no person within such a center was permitted to leave except by military order in the dilemma that he dare not remain in his home or voluntarily leave the area without incurring criminal penalties and that the only way he could avoid punishment was to go to an assembly center and submit himself to military imprisonment the petitioner did nothing June 12th, 1942 an information was filed in the district court for northern California charging a violation of the act of March 21st, 1942 in that petitioner had knowingly remained within the area covered by exclusion order number 34 a demur to the information having been overruled the petitioner was tried under a plea of not guilty and convicted sentence was suspended and he was placed on probation for two years we know however in the light of the foregoing recitation that he was at once taken into military custody and lodged in an assembly center we further know that on March 18th, 1942 the president had promulgated executive order number 9102 establishing the war relocation authority under which so called relocation centers a euphemism for concentration camps were established pursuant to a cooperation between the military authorities of the western defense command and the relocation authority and that the petitioner has been confined either in an assembly center within the zone in which he had lived or has been removed to a relocation center where as the facts disclosed in ex parte Mitsue Endo demonstrate he was illegally held in custody the government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was exclusion order number 34 ordering him to leave the area in which he resided which was the basis of the information against him that argument has evidently been effective the opinion refers to the Hirabayashi case to show that this court has sustained the validity of a curfew order in an emergency the argument then is that exclusion from a given area of danger while somewhat more sweeping than a curfew regulation is of the same nature a temporary expedient made necessary by a sudden emergency this, I think is a substitution of a hypothetical case I might agree with the court's disposition of the hypothetical case the liberty of every American citizen freely to come and to go must frequently in the face of sudden danger be temporarily limited or suspended the civil authorities must often resort to the expedient of excluding citizens temporarily from a locality the drawing of fire lines in the case of a conflagration the removal of persons from the area where a pestilence has broken out in bigger examples if the exclusion worked by exclusion order number 34 were of that nature the Hirabayashi case would be authority for sustaining it but the facts above recited and those set forth an exparte mitsoye endo show that the exclusion was but a part of an overall plan for forcible detention this case cannot therefore be decided on any such narrow ground as possible validity of a temporary exclusion order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area to make the case turn on any such assumption is to shut our eyes to reality as I have said above the petitioner prior to his arrest was faced with two diametrically contradictory orders given sanctioned by the act of congress of March 21st 1842 the earlier of those orders made him a criminal if he left the zone in which he resided the later made him a criminal if he did not leave I had supposed that if a citizen was constrained by two laws or two orders having the force of law an obedience to one would violate the other to punish him for violation of either would deny him due process of law and I had supposed that under these circumstances a conviction for violating one of the orders could not stand we cannot shut our eyes to the fact that had the petitioner attempted to violate proclamation number four and leave the military area in which he lived he would have been arrested and tried and convicted for violation of proclamation number four the two conflicting orders one which commanded him to stay and the other which commanded him to go were nothing but a cleverly devised trap to accomplish the real purpose of the military authority which was to lock him up in a concentration camp the only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a civil control center we know that is the fact why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case these stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might after going to the assembly center apply for his discharge by suing out a writ of habeas corpus as was done in the endow case the answer of course is that where he was subject to two conflicting laws he was not bound in order to escape violation of one of the other to surrender his liberty for any period nor will it do to say that the detention was a necessary part of the process of evacuation and so we are here concerned only with the validity of the latter again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and after he has suffered the disgrace of conviction and lost his liberty by sentence then and not before seek from within prison walls to test the validity of the law moreover it is beside the point to rest decision in part on the fact that the petitioner his own reasons wish to remain in his home if as is the fact he was constrained so to do it is indeed a narrow application of constitutional rights to ignore the order which constrained him in order to sustain his conviction for violation of another contradictory order I would reverse the judgment of conviction end of part two part three of Korey Matsu versus United States this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Korey Matsu versus United States an opinion of the United States Supreme Court part three decided on December 18th, 1944 please note part three is a reading of Mr. Justice Murphy's Descent this reading does not include a reading of the court's opinion Justice Frankfurter's Concurrents Justice Robert's Descent or Justice Jackson's Descent for ease of listening this reading omits footnotes and legal citations found within the text of the court's opinion this exclusion of all persons of Japanese ancestry both alien and non-alien from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved such exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism in dealing with matters relating to the prosecution and progress of a war we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts the scope of their discretion must as a matter of necessity and common sense be wide and their judgments ought not to be overruled lightly by those whose training and duties ill equip them to deal intelligently with matters so vital to the physical security of the nation at the same time however it is essential that there be definite limits to military discretion especially where martial law has not been declared individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support thus like other claims conflicting with the asserted constitutional rights of the individual the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled what are the allowable limits of military discretion and whether or not they have been overstepped in a particular case are judicial questions the judicial test of whether the government on a plea of military necessity can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so immediate, imminent and impending as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger civilian exclusion order number 34 banishing from a prescribed area of the pacific coast all persons of Japanese ancestry both alien and non-alien clearly does not meet that test being an obvious racial discrimination the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment it further deprives these individuals of their constitutional rights to live and work where they will to establish a home where they choose and to move about freely communicating them without benefit of hearings this order also deprives them of all of their constitutional rights to procedural due process yet no reasonable relation to an immediate imminent and impending public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law it must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the pacific coast accompanied by fears of sabotage and espionage in that area the military command was therefore justified in adopting all reasonable means necessary to combat these dangers in a judging the military action taken in light of the then apparent dangers we must not erect too high or too meticulous standards it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion sabotage and espionage but the exclusion either temporarily or permanently of all persons with Japanese blood in their veins has no such reasonable relation and that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways it is difficult to believe that reason logic or experience could be marshaled in support of such an assumption that this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bonafide military necessity as evidenced by the commanding general's final report on the evacuation from the pacific coast area in it he refers to all individuals of Japanese descent as subversive as belonging to an enemy race whose racial strains are undiluted and as constituting over 112,000 potential enemies at large today along the pacific coast in support of this blanket condemnation of all persons of Japanese descent however no reliable evidence is cited to show that such individuals were generally disloyal or had generally so conducted themselves in this way as to constitute a special menace to defense installations or war industries or had otherwise by their behavior furnished reasonable ground of exclusion as a group justification for the exclusion is sought instead mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence individuals of Japanese ancestry are condemned because they are said to be a large unassimilated tightly knit racial group bound to an enemy nation by strong ties of race, culture custom and religion they are claimed to be given to emperor worshipping ceremonies and to dual citizenship Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty together with facts as to certain persons being educated and residing at length in Japan it is intimated that many of these individuals deliberately resided adjacent to strategic points thus enabling them to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so the need for protective custody is also asserted the report refers without identity to numerous incidents of violence as well as to other admittedly unverified or cumulative incidents from this plus certain other events not shown to have been connected with the Japanese Americans it is concluded that the situation was fraught with danger to the Japanese population itself and that the general public was ready to take matters into its own hands finally it is intimated though not directly charged or proved that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area as well as for unidentified radio transmissions and night signaling the main reasons relied upon by those responsible for the forced evacuation therefore do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion sabotage and espionage the reasons appear instead to be largely an accumulation of much of the misinformation, half truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices the same people who have been among the foremost advocates of the evacuation a military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations especially is this so when every charge relative to race, religion culture, geographical location and legal and economic status has been substantially discredited by independent studies made by experts in these matters the military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy but it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States no one denies of course that there were some disloyal persons of Japanese descent on the pacific coast who did all in their power to aid their ancestral land similar disloyal activities have been engaged in by many persons of German Italian and even more pioneer stock in our country to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights moreover this inference which is at the very heart of the evacuation orders has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy to give constitutional sanction to that inference in this case however well intentioned may have been the military command on the pacific coast is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow no adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal as was done in the case of persons of german and italian ancestry it is asserted merely that the loyalties of this group were unknown and time was of the essence yet nearly 4 months elapsed after pearl harbor before the first exclusion order was issued nearly 8 months went by until the last order was issued and the last of these subversive persons was not actually removed until almost 11 months had elapsed leisure and deliberation seemed to have been more of the essence than speed and the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be moreover there was no adequate proof that the federal bureau of investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after pearl harbor while they were still free a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils it seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere than 12,000 persons involved or at least for the 70,000 American citizens especially when a large part of this number represented children and elderly men and women any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals I dissent therefore this legalization of racism racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life it is unattractive in any setting but it is utterly revolting among a free people who have embraced the principle set forth in the constitution of the United States all residents of this nation are kin in some way by blood or culture to a foreign land yet they are primarily and necessarily a part of the new and distinct civilization of the United States they must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the constitution end of part 3 part 4 of Kourimatsu vs. United States this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Kourimatsu vs. United States an opinion of the United States Supreme Court part 4 decided on December 18th 1944 please note part 4 is a reading of Mr. Justice Jackson's dissent this reading does not include a reading of the court's opinion Justice Frankfurter's concurrence Justice Robert's dissent or Justice Murphy's dissent for ease of listening this reading omits footnotes and legal citations found within the text of the court's opinion Kourimatsu was born of a poor soil of parents born in Japan the constitution makes him a citizen of the United States by nativity and a citizen of California by residence no claim is made that he is not loyal to this country there is no suggestion that apart from the matter involved here he is not law abiding and well disposed Kourimatsu however has been convicted of an act not commonly a crime present in the state whereof he is a citizen near the place where he was born and where all his life he has lived even more unusual is a series of military orders which made this conduct a crime they forbid such a one to remain and they also forbid him to leave they were so drawn that the only way Kourimatsu could avoid violation was to give himself up to the military authority this meant submission to custody and transportation out of the territory to be followed by indeterminate confinement in detention camps a citizen's presence in the locality however was made a crime only if his parents were of Japanese birth had Kourimatsu been one of four the others being say a German alien enemy an Italian alien enemy and a citizen of American born ancestors convicted of treason but out on parole Kourimatsu's presence would have violated the order the difference between their innocence and his crime would result not from anything he did said or thought different than they but only in that he was born of a different racial stock now if any fundamental assumption underlies our system it is that guilt is personal and not inheritable even if all of one's antecedents had been convicted of treason the constitution forbids its penalties to be visited upon him for it provides that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attained but here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice and belongs to a race from which there is no way to resign Congress in peacetime legislation should enact such a criminal law I should suppose this court would refuse to enforce it but the law which this prisoner is convicted of disregarding is not found in any act of congress but in a military order neither the act of congress nor the executive order of the president nor both together would afford a basis for this conviction it rests on the orders of general DeWitt and it is said that if the military commander is unable military grounds for promulgating the orders they are constitutional and become law and the court is required to enforce them there are several reasons why I cannot subscribe to this doctrine it would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality when an area is so beset that it must be put under military control at all the paramount consideration is that its measures be successful rather than legal the armed services must protect a society not merely its constitution the very essence of the military job is to marshal physical force to remove every obstacle to its effectiveness to give it every strategic advantage defense measures will not and often should not be held within the limits that bind civil authority and peace no court can require such a commander in such circumstances to act as a reasonable man he may be unreasonably cautious and exacting perhaps he should be but a commander and temporarily focusing the life of a community on defense is carrying out a military program he is not making law in the sense the courts know the term he issues orders authority as military commands although they may be very bad as constitutional law but if we cannot confine military expedience by the constitution neither would I distort the constitution to approve all that the military may deem expedient this is what the court appears to be doing whether consciously or not I cannot say from any evidence before me that the orders of general DeWitt were not reasonably expedient military precautions we may say that they were but even if they were permissible military procedures I deny that it follows that they are constitutional if as the court holds it does follow then we may as well say that any military order will be constitutional and have done with it the limitation under which courts always will labor and examining the necessity for a military order are illustrated by this case how does the court know that the orders have a reasonable basis in necessity no evidence whatever on that subject has been taken by this or any other court there is sharp controversy as to the credibility of the DeWitt report so the court having no real evidence before it has no choice but to accept general DeWitt's own unsworn self-serving statement untested by any cross examination that what he did was reasonable and thus it will always be when courts try to look into the reasonableness of a military order in the very nature of things military decisions are not susceptible of intelligent judicial appraisal they do not pretend to rest on evidence but are made on information that often would not be admissible and on assumptions that could not be proved information in support of an order could not be disclosed to courts without an order that it would reach the enemy neither can courts act on communications made in confidence hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint much is said of the danger to liberty from the army program for deporting and detaining these citizens of Japanese extraction but 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 a military order however unconstitutional is not apt to last longer than the military emergency even during that period a succeeding commander may revoke it all but once a judicial opinion rationalizes such an order to show that it conforms to the constitution or rather rationalizes the constitution to show that the constitution sanctions such an order the court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens the principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward plausible claim of an urgent need every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes all who observe the work of courts are familiar with what Judge Cardoza described as the tendency of a principle to expand itself to the limit of its logic a military commander may overstep the bounds of constitutionality and it is an incident but if we review and approve that passing incident becomes the doctrine of the constitution there it has a generative power of its own and all that it creates will be in its own image nothing better illustrates this danger than does the court's opinion in this case it argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi vs. United States when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry I think we should learn something from that experience in that case we were urged to consider only that curfew feature that being all that technically was involved because it was the only count necessary to sustain Hirabayashi's conviction and sentence we yielded and the Chief Justice guarded the opinion as carefully as language will do he said our investigation here does not go beyond the inquiry whether in the light of all the relevant circumstances proceeding and attending their promulgation the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew we decide only the issue as we have defined it we decide only that the curfew order as applied and at the time it was applied was within the boundaries of the war power and again it is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order however in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty now the principle of racial discrimination is pushed from support of mild measures to very harsh ones and from temporary deprivations to indeterminate ones and the precedent which it is said requires us to do so is Hirabayashi the court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding because we said that these citizens could be made to stay in their homes during the hours of dark it is said we must require them to leave home entirely and if that we are told they may also be taken into custody for deportation and if that it is argued they may also be held for some undetermined time in detention camps how far the principle of this case would be extended before plausible reasons would play out I do not know I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority the courts can exercise only the judicial power can apply only law it must abide by the constitution or they cease to be civil courts and become instruments of military policy of course the existence of a military power resting on force so vagrant so centralized so necessarily heedless of the individual is an inherent threat to liberty but I would not lead people to rely on this court for a review that seems to me wholly delusive the military reasonableness of these orders can only be determined by military superiors if the people ever let command of the war power fall into irresponsible and unscrupulous hands the courts wield no power equal to its restraint the chief restraint upon those who command the physical forces of the country in the future as in the past must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history and peace as a justice as I see them do not require me to make a military judgment as to whether general Dewitt's evacuation and detention program was a reasonable military necessity I do not suggest that the courts should have attempted to interfere with the army in carrying out its task but I do not think they may be asked to execute a military expedient that has no place in law under the constitution I would reverse the judgment and discharge the prisoner end of part four end of Korey Matsu vs. United States an opinion of the United States Supreme Court Cole Grove vs. Green this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Cole Grove vs. Green an opinion of the United States Supreme Court decided on June 10th 1946 please note this is a reading of the opinion of the court only this reading does not include Justice Rutledge's concurrence or Justice Black's dissent for ease of listening this reading omits legal citations and footnotes found within the text of the court's opinion Mr. Justice Frankfurter delivered the opinion of the court this case is appropriately here under section 266 of the judicial code on direct review of a judgment of the district court of the Northern District of Illinois three judges dismissing the complaint of these appellants petitioners are three qualified voters in Illinois districts which have much larger populations than other Illinois congressional districts they brought this suit against the governor the secretary of state and the auditor of the state of Illinois as members ex officio of the Illinois primary certifying board to restrain them in effect from taking proceedings for an election in November 1946 under the provisions of Illinois law governing congressional districts formally the appellants asked for a decree with its incidental relief declaring these provisions to be invalid because they violated various provisions of the United States Constitution and section 3 of the reapportionment act of August 8, 1911 in that by reason of subsequent changes in population the congressional districts for the election of representatives in the congress created by the Illinois laws of 1901 lacked compactness of territory and approximate equality of population the district court feeling bound by this court's opinion in wood versus broom against the bill the district court was clearly right in deeming itself bound by wood versus broom and we could also dispose of this case on the authority of wood versus broom the legal merits of this controversy were settled in that case in as much as it held that the reapportionment act of June 18, 1929 has no requirements as to the compactness contiguity and equality in population of districts the act of 1929 still governs the district king for the election of representatives it must be remembered that not only was the legislative history of the matter fully considered in wood versus broom but the question had been elaborately before the court in smiley versus home Koenig versus Flynn and Carroll versus Becker argued a few months before wood versus broom was decided nothing has now been adduced to lead us to overrule what this court found to be the requirements under the act of 1929 the more so since seven congressional elections have been held under the act of 1929 as construed by this court no manifestation has been shown by congress even to question the correctness of that which seemed compelling to this court in enforcing the will of congress in wood versus broom but we also agree with the four justices Brandeis, Stone Roberts and Cordozo who were of opinion that the bill in wood versus broom should be dismissed for want of equity to be sure the present complaint unlike the bill in wood versus broom was brought under the federal declaratory judgment act which not having been enacted until 1934 was not available at the time of wood versus broom but that act merely gave the federal courts competence to make a declaration of rights even though no decree of enforcement be immediately asked it merely permitted a freer movement of the federal courts to recognize confines of the scope of equity the declaratory judgment act only provided a new form of procedure for the adjudication of rights in conformity with established equitable principles and so the test for determining whether a federal court has authority to make a declaration such as is here asked is whether the controversy would be justiciable in this court presented in a suit for injunction we are of opinion that the petitioners ask of this court what is beyond its competence to grant this is one of those demands on judicial power which cannot be met by verbal fencing about jurisdiction it must be resolved by considerations on the basis of which this court from time to time has refused to intervene in controversies it has refused to do so because do regard for the effective working of our government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination this is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens the basis for the suit is not a private wrong but a wrong suffered by Illinois as a polity in effect this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the nation because the Illinois legislature has failed to revise its congressional representative districts in order to reflect great changes during more than a generation distribution of its population we are asked to do this as it were for Illinois of course no court can affirmatively remap the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system at best we could only declare the existing electoral system invalid the result would be to leave Illinois undistricted and to bring into operation if the Illinois legislature chose not to act the choice of members for the house of representatives on a statewide ticket the last stage may be worse than the first the upshot of judicial action may defeat the vital political principle which led congress more than a hundred years ago to require districting this requirement in the language of Chancellor Kent was recommended by the wisdom of giving as far as possible to the local subdivisions of the people of each state a due influence in the choice of representatives so as not to leave the aggregate minority of the people in a state though approaching perhaps to a majority to be wholly overpowered by the combined action of the numerical majority without any voice whatever in the national councils assuming acquiescence on the part of the authorities of Illinois in the selection of its representatives by a mode that defies the direction of congress for selection by districts the house of representatives may not acquiesce in the exercise of its power to judge the qualifications of its own members the house may reject a delegation of representatives at large nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests from the determination of such issues this court has traditionally held aloof it is hostile to a democratic system to involve the judiciary in the politics of the people and it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law the petitioners urge with great zeal that the conditions under which they complain are grave evils and offend public morality the constitution of the united states gives ample power to provide against these evils but do regard for the constitution as a viable system precludes judicial correction authority for dealing with such problems resides elsewhere article one section four of the constitution provides that the times, places and manner of holding elections for representative shall be prescribed in each state by the legislature thereof but the congress may at any time by law make or alter such regulations the short of it is that the constitution has conferred upon congress exclusive authority to secure fair representation by the states in the popular house and left to that house determination whether states have fulfilled their responsibility if congress failed in exercising its powers whereby standards of fairness are offended the remedy ultimately lies with the people whether congress faithfully discharges its duty or not the subject has been committed to the exclusive control of congress an aspect of government from which the judiciary in view of what is involved has been excluded by the clear intention of the constitution cannot be entered by the federal courts because congress may have been in default in exacting from states obedience to its mandate the one stark fact that emerges from a study of the history of congressional apportionment is its embroilment in politics in the sense of party contests and party interests the constitution enjoins upon congress the duty of apportioning representatives among the several states according to their respective numbers yet congress has at times been heedless of this command and not apportioned according to the requirements of the census it never occurred to anyone that this court could issue mandamus to compel congress to perform its mandatory duty to apportion to be done directly by mandamus could not be attained indirectly by injunction until 1842 there was the greatest diversity among the states in the manner of choosing representatives because congress had made no requirement for districting congress then provided for the election of representatives by districts strangely enough the power to do so was seriously questioned it was still doubted by the necessity of congress as late as 1901 in 1850 congress dropped the requirement the reapportionment act of 1862 required that the districts be of contiguous territory in 1872 congress added the requirement of substantial equality of inhabitants this was reinforced in 1911 but the 1929 act dropped these requirements throughout our history whatever may have been the controlling apportionment act the most glaring disparities have prevailed as to the contours and the population of districts to sustain this action would cut very deep into the very being of congress courts ought not to enter this political thicket the remedy for unfairness in districting is to secure state legislatures that will apportion properly or to invoke the ample powers of congress the constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action thus on demand of the executive authority of a state it is the duty of a sister state to deliver up a fugitive from justice but the fulfillment of this duty cannot be judicially enforced the duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion violation of the great guarantee of a republican form of government in states cannot be challenged in the courts the constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and ultimately the vigilance of the people in exercising their political rights dismissal of the complaint is affirmed end of coal grove versus green an opinion of the united states supreme court