• Handout A: Student Document Packet Part 1
• Handout B: Student Document Packet Part 2

Students should have prior knowledge of how to approach primary sources and of events on the home front during World War II. Background knowledge should include the context of nativism/racism that has shadowed U.S. history in general and , more specifically, negative attitudes toward Asian immigrants and their descendants . These instructions will facilitate a moot court in which students consider the same questions the Supreme Court did.

Lead students in a brief discussion or quick-write responding to the following prompt: “If, as a result of a government order, your family had 48 hours to dispose of your home, car, and all other property before being required to move into distant temporary housing for an undetermined time, which of your inalienable rights might be in jeopardy?” Discuss: In 1942, Japanese Americans living along the West Coast, two-thirds of whom were U.S. citizens, lost both liberty and property under these circumstances. Many sold homes and businesses for only a few dollars or simply abandoned their property. In this activity, students will analyze and evaluate the Supreme Court’s decision in the landmark case,Korematsu v. United States(1944).

1. As a class, identify the constitutional question that the Supreme Court must answer in this case. Tip: Construct this question as a yes/no question referring specifically to the relevant law in the case and to one or more provisions of the U.S. Constitution. (For teacher reference only: In this case, it might be something like this: “By depriving Fred Korematsu of his liberty and his property, did the exclusion order in Executive Order 9066 violate Korematsu’s Fifth Amendment right to due process?”)
2. For student reference throughout the lesson, write the question that the class constructs on the board.

Distribute Handout A: Student Document Packet Part 1, instructing students to work through Documents 1–5. They should annotate information in the documents to show main ideas that will help each side in the controversy. Have students work individually, with a partner, or in small groups to read each source in sequence, answer the accompanying questions, and show how the document could be used to help one side or the other in the case.

1. Continue to explore both sides of the case, either as a whole class, or alternatively, by dividing the class into groups. If you were Fred Korematsu’s attorney presenting oral argument before the Supreme Court, what are the main points you would make for the Court’s consideration? Point to specific pieces of evidence from the documents to support your answer.
2. If you were the U.S. Solicitor General (the attorney tasked with presenting the government’s argument in Supreme Court cases), what are the main points you would make for the Court’s consideration? Point to specific pieces of evidence from the documents to support your answer.

You might divide the class in half and assign one-half to compose the argument that each attorney would present to the Supreme Court. Remind students that this is just an exercise in disciplined thinking and they may be assigned a side with which they personally disagree. See Moot Court Procedures.

After both sides have had an equal opportunity to present their case, have the class vote on how they would answer the constitutional question you wrote on the board: If you were a Supreme Court justice, how would you decide this case? Explain your reasoning.

After students have decided the case, distribute Handout B: Student Document Packet Part 2 and have the students read Documents 6 and 7, which provide excerpts of the majority and dissenting opinions in this 6–3 decision. Encourage students to compare the justices’ reasoning with their own. Do students think the Court’s majority got it right? For those who say the dissenters were right, ask: What if we discover in the future that there was a well-concealed Japanese spy ring that was thwarted by the exclusion and detention process—would that change your mind?

Direct students to read Document 8: “Duty of Absolute Candor: Katyal Blog Post,” which shows that in his presentation to the Supreme Court, Solicitor General Charles Fahy deliberately withheld important information related to the government’s position in the case. Memos compiled in 1943 by Justice Department attorney Edward Ennis directly refuted the government’s position that internment was a military necessity. Ennis had collected documents showing that, according to the Federal Bureau of Investigation (FBI), the Office of Naval Intelligence, and other intelligence agencies, there was no known threat of espionage from Japanese Americans. Furthermore, Ennis had uncovered reports that only a few Japanese individuals were even suspected of disloyalty, and that those few were being surveilled at the time. Fahy ignored these documents in making his argument to the Supreme Court that the exclusion of Japanese Americans from their homes in coastal regions and their confinement at inland relocation centers was a military necessity.

For homework, have each student write a thesis statement responding to the DBQ prompt: How did wartime experiences lead to challenges to the civil liberties of Japanese Americans?

On the next class day, you might solicit volunteers to share their thesis and workshop several using the following questions, or have students share with a partner and provide feedback on the following questions:

• Does the thesis answer the question without restating the prompt?
• Does the thesis make sense?
• Is the thesis historically accurate?
• Does the thesis provide clear and cohesive reasoning?
• Does the thesis provide a road map or “table of contents” for an essay?

Thesis statements can be collected and assessed using the criteria from the College Board for a successful thesis statement, or with an individual class rubric.

Depending on where students are in their understanding of the DBQ essay, have students outline their response or write a full essay, as best fits your teaching situation.

Encourage students to explore other cases dealing with civil liberties in wartime.

In Ex Parte Milligan (1866), after the suspension of habeas corpus during the Civil War, the Court ruled that civilians could not be tried in military tribunals as long as civil courts were operational. If government can ignore the rule of law in emergencies, the result, according to the Court, is “anarchy or despotism.”

In Hirabayashi v. United States (1943), Hirabayashi had been convicted of violating the curfew order that required all persons of Japanese ancestry to be in their residences between 8 p.m. and 6 a.m. The Court held that the curfew was reasonable because it was a war measure “necessary to meet the threat of sabotage and espionage.” The reasoning was that “in time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry . . . The Fifth Amendment contains no equal protection clause, and it restrains only such discriminatory legislation by congress as amounts to a denial of due process.”

The Court announced the decision in Ex Parte Mitsuye Endo (1944) on the same day that it announced the ruling in Korematsu’s case, December 18, 1944. In Endo’s case, the government ruled that, even though the removal and detention process was within the government’s power as a wartime measure, once the government conceded an individual’s loyalty, that person must be released. “The authority to detain a citizen or to grant him a conditional release as a protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform an espionage or sabotage measure into something else. . . . To read [Executive Order 9066] that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. . . ”

“George H. W. Bush, Letter from President Bush to Internees (1991).” In this letter written nearly 50 years after Executive Order 9066, President Bush referred to the constitutional ideals of freedom, equality, and justice in issuing a letter of apology and $20,000 in restitution for lost property to each living survivor of the internment camps. He wrote, “We can never fully right the wrongs of the past. But we can take a clear stand for justice and recognize that serious injustices were done to Japanese Americans during World War II.”

To address more recent questions regarding the rule of law during wartime, see BRI curriculum, Liberty and Security in Modern Times. This resource contains lessons on McCarthyism, due process, and fair trials during the War on Terror, and the USA Patriot Act.