(concurring in the result, but dissenting from the grounds of the majority opinion).
It is with regret that I find myself in profound disagreement with a majority of my colleagues in their treatment of the claims of unconstitutionality and other illegalities, later considered herein, of General DeWitt’s order to Korematsu. Korematsu is a fellow citizen, who, because happening to have a common ancestry with the people under the dominion of the Japanese Government, with which we are at war after decades of peaceful intercourse, was required to report for imprisonment in a military assembly stockade to await deportation for further such imprisonment.
Along with him are 70,000 American citizens' — men, women and children — who, under similar orders, have been torn from their homes, farms and places of business to be imprisoned together in large groups, first in barbed wire stockades called Assembly Centers, then, after deportation, in distant places under military guard. As Justice Murphy states in his concurring opinion in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1389, 1390, 87 L.Ed. 1774, their treatment is not unlike that of Hitler in so confining the Jews in his stockades.
The order here under consideration is the initial step in a unit succession of orders, held by the Supreme Court to be a “single program,” (cf. infra) ultimately leading to such a cruel consummation. The court properly should take judicial notice of the fact that the result is that such forcible confinement of American citizens made Poston the third largest city in Arizona; Manzanar the second largest city in California east of the Sierras; and a large town on the Southern Pacific Railway and the National Highway between San Francisco and San Mateo of the assembly stockade at Tanforan. I cannot agree that taking judicial notice of these facts, known to the world, is “lending aid and comfort to the enemy,” and hence that Korematsu’s contentions be suppressed.
In this conspicuous appeal of such a member of one of America’s minority groups, the opinion of this court disposes of Korematsu’s major contentions without their mention, much less their consideration.1 .Outstanding is the avoidance of the question of imprisonment and deportation. It is buried in the euphemism “evacuation,” without suggestion of its forced character or its accomplishment by compulsory confinement.
The opinion of this court concerning such unmentioned imprisonment for deportation is based solely upon an interpretation of the decision of the Supreme Court in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, on the validity of a curfew order. That order is treated by that Court as analogous to the control of civilians by lines about a burning building, established by the police or firemen, or the requirement of citizens to remain indoors during the brief period of a blackout.
In so disposing of his case, Korematsu has received a treatment similar to that accorded Hirabayashi in connection with our decision to refuse to decide the questions he brought before us and their certification to the Supreme Court without stating various of his contentions nor the facts on which he relied.1a
Americans are to face a peace table at which our prestige and power will rest upon the belief of a world questioning *292Caucasian sincerity, a world which includes a billion Asiatics. There no one will shut his eyes to the Postons, Manzanars and Tanforans. One of the questions will be what sort of judicial consideration do minority groups of American citizens receive from the courts of a claimed democracy.
A. The Supreme Court refused to consider the validity of the orders to report for imprisonment. This case was consolidated for argument with that of Hirabayashi v. United States, No. 10,308, on the question of the validity of General DeWitt’s orders. For the reason, stated in its certificate in the Hirabayashi case, that the question arising from such a measure as mass imprisonment to prevent espionage and sabotage was “difficult” and for which “this court knows of no decision” as a precedent,1b a majority of this court avoided its decision. Cf. the last four paragraphs of my attached dissent. Instead, this court certified to the Supreme Court in that case the following question:
“1. Was Lt. Gen. DeWitt’s Civilian Exclusion Order No. 57 of May 10, 1942 excluding all persons of Japanese ancestry, including American citizens of Japanese cmcestry, from and after 12 o’clock noon, May 16, 1942, from. a particular area in Seattle, Washington within Military Area No. 1 established by General DeWitt’s Proclamation No. 1 of March 2, 1942 and requiring a responsible member of each family, and each individual living alone, affected by the order to report on May 11 or 12, 1942, to the Civil Control Station in the said area in connection with said exclusion, a constitutional exercise of the war power of the President derived from the Constitution and statutes of the United States?” (Emphasis supplied.)
The Supreme Court expressly refused to decide that question. Hirabayashi’s indictment also charged a violation of an order entirely different from that one of the series of deportation orders with which the above quotation is concerned. What is passed upon is the validity of General DeWitt’s Proclamation No. 3 of March 23, 1942, imposing a curfew, not only on persons of Japanese descent but, on all enemy aliens for whom no general exclusion order has ever been made. It required them to remain in their places of residence between the hours of 8 p.m. and 6 a.m.2
It permitted such movement of all these aliens within the curfew hours as pertained to their voluntary evacuation of the coastal military areas. This court’s certificate in the Hirabayashi case certified the question of the validity of the curfew order, also because it found the question difficult and without precedent.
Concerning the question of the curfew order, as distinguished from the deportation order, the Supreme Court said, “Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. * * * It is unnecessary to con*293sider whether or to what extent such findings would support orders differing from the curfew order.” (Emphasis supplied.)
The Supreme Court found a precedent. As seen, it assimilated the curfew order to the fire lines and brief blackout restrictions. Here is no resemblance to the orders leading to the imprisonment of men, women and children en masse in assembly center stockades for deportation. These are orders “differing from the curfew order” upon which the Supreme Court declined to pass.
Hence I dissent from the description of the offense in the first paragraph of the court’s opinion that it consisted merely “of remaining in that portion of Military Order No. 1 covered by * * * Exclusion Order 34 * * * in which all persons of Japanese ancestry are excluded from, and not permitted to remain in, the City of San Leandro, County of Alameda, State of California, after 12:00 o’clock noon, P. W. T., May 9, 1942.”
San Leandro is a town of small area and, for anything the majority opinion shows, all Korematsu had to do to satisfy Order 34 was to walk for a few minutes and pass out of the town’s boundaries. The analogy with the police fire lines is obvious and if this were all, the opinion properly could say that it is unnecessary further “to labor the point.”
Korematsu’s contention, in effect, is that his conviction was for the crime of not moving out of San Leandro into imprisonment in an assembly center. An' inspection of the series of orders affecting him shows his position to be well taken. These orders at once required him not to leave and not to remain in the area. His sole alternative was imprisonment.
B. The facts, and the deportation and imprisonment orders. Fred Korematsu, born in California of Japanese parents, was educated in California grammar schools, high school and junior college, with white children. He grew up under the conditions of a Mongolian minority in a Caucasian majority, with its tragic contrast between the primary and high school teachings of freedom and equality, and, in his later social and economic life, the limitation and denial of what had been taught him by his white instructors, more fully considered in my attached dissent of March 28, 1943, in the Hirabayashi case.
There is no showing or suggestion that what Korematsu suffered from the contrast between the American teachings of personal liberty and equality and their denial caused any disloyalty. On the contrary, when rejected by his Selective Service Board, he spent $150.00 of his own funds to learn a ship mechanic’s trade and thereafter, prior to Pearl Harbor, had been employed in a defense industry.
After that time he had made an unsuccessful attempt to have his features altered by plastic surgery, hoping thereby to escape the discrimination against his minority group of citizens. This attempt is as pathetic as that of another of our minority groups — of those of one-sixteenth negro blood hoping to conceal the fact that they have not “passed over” into general Caucasian social intercourse.
Like all the remaining 70,000 Japanese descended citizens, Korematsu became subject to a series of Proclamations and Executive Orders which “[are] parts of a single program [leading to his imprisonment] and must be judged as such.” Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1387, 87 L.Ed. 1774.
On June 12, 1942, when he was arrested in San Leandro, Korematsu was subject to an order of General DeWitt prohibiting him from leaving Military Area No. 1. On March 27, 1942,' Public Proclamation No. 4 was issued finding and ordering,
“It is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration” (Emphasis supplied.)
Therefore
“* * * as a matter of military necessity that commencing at 12:— midnight, P.W.T., March 29, 1942, all alien Japanese^ and persons of Japanese ancestry who are within the limits of Military Area No. 1, 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.”
The words “voluntary migrating” and “evacuation and resettlement” coupled with the words prohibiting him from leaving the limits of Military Area No. 1 seem an evasion of the real purpose of refusing any voluntary departure. The words “evacuation” and “resettlement”*, mean deportation and imprisonment in a relocation stockade. It was not restrict*294ing and regulating “voluntary” migration. It was denying it.
Korematsu was thus prohibited from leaving a military area in California, roughly extending 200 miles westerly from the Sierras to the Pacific and north and south for 600 miles. By a previous Military Proclamation No. 1 he was prohibited from moving from his “habitual residence” therein without filing a “change of residence” notice with his postmaster. He had filed no such notice of change of residence and hence was prohibited from leaving it.
For purposes of the contemplated deportation this Military Area was ordered divided into smaller areas. Korematsu found himself in an area about San Leandro in Alameda County, California. Similar small areas were created throughout the portions of California in Military Area No. 1. Had Korematsu left the San Leandro area, he would have entered another from which he was forbidden to leave.
Then followed Evacuation Order No. 34, with its accompanying directions respecting the deportation casually described, but not set forth, in the first paragraph of the majority opinion. It is as follows:
“Civilian Exclusion Order No. 34
“1. Pursuant to the provisions of Public Proclamations Nos. 1 and 2, this Headquarters, dated March 2, 1942, and March 16, 1942, respectively, it is hereby ordered that from and after 12 o’clock noon, P. W. T., of Saturday, May 9, 1942, all persons of Japanese ancestry, both- alien and non-alien, be excluded from that portion of Military Area No. 1 described as follows:” (Descriptive area including San Leandro.)
“2. A responsible member of each family, and each individual living alone, in the above described area will report between the hours of 8:00 A. M. and 5 :00 P. M. Monday, May 4, 1942, or during the same hours on Tuesday, May 5, 1942, to the Civil Control Station located at:
920 - ‘C’ Street,
Hayward, California.
“3. Any person subject to this order who fails to comply with any of its provisions or published instructions pertaining hereto or who is found in the above area after 12 o’clock noon, P. W. T., of Saturday, May 9, 1942, will be liable to the criminal penalties provided by Public Law No. 503, 77th Congress, approved March 21, 1942.”
As seen, that order required Korematsu and all such unmarried citizens and the heads of families of such citizens to report to a Civil Control Station by May 5, 1942, to receive directions for their imprisonment by May 9, 1942, in a stockade called an Assembly Center/ from which the deportation was to be made.
The list of instructions made a part of Order No. 34 reveals the destruction of family life and of long established business relations. They are
“The Following Instructions Must Be Observed:
“1. A responsible member of each family, preferably the head of the family, or the person in whose name most of the property is held, and each individual living alone, will report to the Civil Control Station to receive further instructions. This must be done between 8:00 A. M. and 5:00 P. M. on Monday, May 4, 1942, or between 8:00 A. M. and 5:00 P. M. on Tuesday, May 5, 1942.
“2. Evacuees must carry with them on departure for the Assembly Center, the following property:
“(a) Bedding and linens (no mattress) for each member of the family;
“(b) Toilet articles for each member of the family;
“(c) Extra clothing for each member of the family;
“(d) Sufficient knives, forks, spoons, plates, bowls and cups for each member of the family;
“(e) Essential personal effects for each member of the family.
“All items carried will be securely packaged, tied and plainly marked with the name of the owner and numbered in accordance with instructions obtained at the Civil Control Station. The size and number of packages is limited to that which can be carried by the individual or family group.
“3. No pets of any kind will be permitted.
“4. No personal items and no household goods will be shipped to the Assembly Center.
“5. The United States Government through its agencies will provide for the storage at the sole risk of the owner of the *295more substantial household items, such as iceboxes, washing machines, pianos and other heavy furniture. Cooking utensils and other small items will be accepted for storage if crated, packed and plainly marked with the name and address of the owner. Only one name and address will be used by a given family.” (Emphasis supplied.)
The order is not free of the mean oppressiveness often found in regimentation of minority groups. After the Government had so ordered the stripping of the citizens of their belongings and their imprisonment, they are informed that their prospective warden “will provide for the storage of belongings at the sole risk of the owner.”
It is apparent that what the disobeyed order actually was bears no resemblance to the order described in the first paragraph of this court’s opinion.
C. Korematsu! s contentions. The Government’s counsel contends that orders for such imprisonment were a proper exercise of the discretion of a military commander in such an area a Military District No. 1, with its reasonably anticipated Japanese invasion from the Pacific.
In the course of the hearing, the Government admitted that not one of these 70,000 Japanese descended citizen deportees had filed against him in any federal court of this circuit an indictment or information charging espionage, sabotage or any treasonable act. This admission covered the five months from Pearl Harbor to General DeWitt’s deportation order of May 10, 1942. Though in so conceding the fact, Korematsu’s position is greatly strengthened, the majority opinion does not mention the admission. It is thus lost to him.
Korematsu argued that, assuming such imprisonment is otherwise valid, the selection of his Mongolian-blooded group for such treatment is so arbitrary and capricious a racial discrimination that it violates the due process clause of the Fifth Amendment. This argument is answered in the detailed consideration of the social and legal relationships of the people of Mongolian blood to the surrounding Caucasian population in the Pacific Coast states in my dissent in the Hirabayashi case. It is finally decided against him in the appeal in that case.
Korematsu contends that the principle established in Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281, applies a fortiori where no hearing of any kind was provided to establish the disloyalty or military menace of any of the citizens on the way to imprisonment, much less of Korematsu. It is contended that the prospective hanging of Milligan presents no difference in principle from the gross cruelty of the military mass imprisonment and deportation of these citizens. In both cases the civil courts were functioning. In both cases the action of the military was not against soldiers subject to court martial. Neither Milligan’s ordered hanging nor Korematsu’s imprisonment was the result of a judgment of a civil court.
His position is that if hanging of a civilian is not legal on a military order after court martial, a fortiori imprisonment is not legal on a military order without court martial. Also, if, as stated in the Milligan case, Congress cannot give to the military the power to order the hanging of a civilian after a military trial, it cannot give the military the power to order the imprisonment of civilians without any trial at all.
It seems clear to me that a decision on a curfew order likened to police fire lines, does not dispose of Korematsu’s contention that the principles of the Milligan case apply to such imprisonment for deportation.
Korematsu also contends that such imprisonment violates the due process clause of the Fifth Amendment and that General DeWitt’s orders are “lettres de cachet.” Imprisonment without trial is a denial of the due process of the Fifth Amendment and such orders are the equivalent of lettres de cachet so far as the physical effect of the bodies of these citizens is concerned. It would be like the hypocrisy of the phrase “voluntary evacuation” to contend otherwise.
Korematsu further argues that such mass “banishment” is a cruel and unusual punishment in violation of the Eighth Amendment. That it is cruel and unusual need not be further pressed. It is nonetheless a matter for our consideration with reference to the discretionary power of General DeWitt, that the military order causing it may be construed as not the “punishment” contemplated by that amendment.
*296Korematsu, a shipwelder, further contends that his right to work is property, e.g. Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283, and that his imprisonment is a deprivation of that property in violation of the due process clause of the Fifth Amendment.
D. Ex parte Milligan is not controlling, because implicit in its reasoning is the hypothesis that in the absence of actual invasion the slower and more deliberate procedures of the civil courts are a sufficient protection from disloyal citizens lending aid to the enemy; and because the possibility of air invasion covering the state of Indiana in less than two hours was not even "lurking” in the minds of the Justices.
It was 37 years after the Milligan decision that the Wrights made the first successful flight with a craft heavier than air, and 13 years later that aviation had progressed to military utility.
It was in a world that could not conceive of an invasion faster than by movement on the ground that the Supreme Court held [71 U.S. 127, 4 Wall. 127, 18 L.Ed. 281] :
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.
“It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.
“It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.” (Emphasis supplied.)
Since “necessity creates the [martial] rule,” it 'is not inconsistent with the principle established in the Milligan case that a threatened air invasion, directed by saboteur signals, which in an hour’s time could destroy every federal court house in California, presents the necessity for the substitute of military action against such sabotage for that of civil courts. The question of war necessity now before us could not even “lurk” in the record in the Milligan case.
The extent of the holding of “necessity” in that case is confined by the long established rule that matters not presented and considered by the court and a fortiori those beyond its possible consideration, are not there decided. Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411, and cases cited; K.V.O.S., Inc., v. Associated Press, 299 U.S. 269, 270, 57 S.Ct. 197, 81 L.Ed. 183.
E. General DeWitt’s orders purposed for and leading to KorematsuJs imprisonment, though violative of specific constitutional rights in the absence of any impending menace, during war and the reasonable expectation of air invasion are within the area of military discretion of those acting under their then paramount constitutional power to wage war.
Korematsu’s stress on his imprisonment as violative of several claimed constitutional rights is pertinent here with reference only to the limits of the control of governmental agencies compelled by some necessity to exercise, for the common safety, a coercion on the individual which otherwise such rights would prohibit.
In the peace time example of the fire lines, it is the existence or likelihood of fire that warrants the exclusion of the citizen from his home or office or ballot box. *297No one would question the violation of his constitutional right if, using the presence of a controlled fire in a small detached building, a political police extended its fire lines around a large district of adverse voters and had prevented him from reaching his polling booth.
That Korematsu is entitled to the consideration by this court of the particular facts of his case as supporting the contention that the coercion exceeds the “allowable limits of military discretion,” is what I understand to be the law as established in Sterling v. Constantin, 287 U.S. 378, 403, 53 S.Ct. 190, 77 L.Ed. 375. There, where martial law had been declared in Texas, the Supreme Court held certain acts of the Governor to be violative of the Federal Constitution as in excess of his authority under the martial power the declaration had given him. In so ruling the Supreme Court held (287 U.S. at pages 400, 401, 53 S.Ct. at page 196, 77 L.Ed. 375),
“It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, cmd whether or not they have been overstepped in a particular case, are judicial questions.” (Emphasis supplied.)
I take it that the exercise of the military power of a state is as high a function of government in the territory over which it has jurisdiction as is the exercise of that power by the United States in Military Area No. 1. Sterling v. Constantin so treats the states’ military powers and its ratio decidendi is supported by Ex parte Milligan, supra; Mitchell v. Harmony, 13 How. 115, 134, 14 L.Ed. 75, and United States v. Russell, 13 Wall. 623, 628, 20 L.Ed. 474, all cases determining limits of the federal military authority. The extraordinary increase during the last decade in the exercise of federal administrative controls cannot be regarded as having changed the states from entities as supreme in their reserved powers as is the Federal Government within its limited grant of powers, to mere agencies of the latter and hence made the Constantin case inapplicable.
By refusing to consider Korematsu’s contentions, the majority are treating the Constantin case as if it had been overruled sub silentio by the Hirabayashi case. With this I cannot agree. Since the Hirabayashi majority opinion, by its terms, is confined to a curfew order, it required no consideration of the Constantin case. Such a curfew order, considered no more than an exercise of an ordinary police function, is obviously “within the allowable limits of military discretion.”
Assume the defense of the Coast had been under the command of some general so uneducated that he was oblivious to (1) the political struggles in Japan of a rising middle class for the creation of a form of democratic government, finally frustrated by assassination by a military group, to whom had been entrusted the education of a greater part of the nation’s youth; (2) the fact that even after the declaration of martial law, over 75,000 Japanese, both citizen and alien, are freely living their accustomed lives on Oahu around Pearl Harbor and the Oahu military establishments; and (3) the fact that, while now the Chinese are among the most respected and liked of all our minority groups of alien ancestry for their commercial integrity and sense of social responsibility, only sixty years ago, in support of the slogan “The Chinese Must Go,” a blind passionate hatred attributed to the Chinese, as a people, the same essential inherited treacherous antagonism to the Caucasian and the same cruel ferocity of the soldiers of some former Chinese “War Lords” and of the Tong “hatchet men,” as that with which other ignorant citizens, often played upon by the lower politicians, now characterize all the Japanese people.
Let us then assume that such a general had made findings and orders somewhat as follows:
“Whereas, I find that a Jap is a Jap, and that all Japanese descended people, male and female, are alike. They by heredity worship a sun emperor who is destined to conquer and rule all the people of the world. No education in American schools can eradicate this inherent instinct. No American environment can create any loyalty in any Jap to our flag. To America they will always be treacherous and be*298cause of a cruel and fanatical courage each is a constant threat of sabotage and espionage;
“Now, therefore, it is ordered
“(1) That all adult males of Japanese descent in Military Area No. 1 be imprisoned in a barbed wire stockade, each with an Oregon boot of ten pounds weight attached to his right leg, and
“(2) That all adult females be so confined and each chained by the wrists, the chains light enough in weight and sufficient in length to allow them to prepare the food, do the laundering and other necessary services for all the prisoners and to care for their younger offspring.”
Such findings and orders, inconceivable in any sane American commander such as General DeWitt, are postulated as an extreme exercise of military action to prevent espionage and sabotage. Under the principles established in Sterling v. Constantin, supra, we would not only consider their constitutionality but it is strongly arguable, we would not convict Japanese descended citizens for disobeying them.
It is true that the majority opinion in the Hirabayashi case, 320 U.S. 81, 63 S.Ct. at page 1382, 87 L.Ed. 1774, states,
“Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”
This I take to refer to “judgment,” “discretion” and “wisdom” within the rational area of the necessities of war. I reject the concept that Japanese so treated would be compelled to remain in their chains, without the right to present to “any court” the contention that the order and its execution were unwarrantably “subversive of private right” within the rule of Sterling v. Constantin, supra.
Nor do I regard Justice Douglas’ concurring statement (320 U.S. 81, 63 S.Ct. at page 1388, 87 L.Ed. 1774) that “Where the orders under the present Act have some relation to ‘protection against espionage and against sabotage,’ our task is at an end,” as meaning that any order, no matter how cruel and unnecessarily oppressive, must be upheld by the court merely because it has "some relation” to the military object to be attained.
For illustration, assume similar Congressional legislation with a set of military orders for the taking of property as that for the mass imprisonments and deportations of these 70,000 people. Then assume a need for blankets for soldiers for Alaska, where there is a landing of Japanese troops. There are sufficient blankets in a warehouse at Oakland, California, only six miles away, but, as reported of the German officers in Norway and other occupied countries, our officers seize them at night from the beds of men, women and children in nearer-by homes in San Francisco. These seized blankets have not only “some relation” to a military need, but a direct relation “to protection” against the Alaska cold to be endured there by our soldiers.
I take it that Justice Douglas’ words are not to be construed to mean that, in a prosecution in a civil court of a father resisting the taking of the blankets from his wife or children, the court must regard as stating no defense his offered evidence showing such taking and claiming it a violation of the Fifth Amendment. Yet such taking is no more “subversive of private rights” than these mass imprisonments and deportations. Under Sterling v. Constantin, supra, the difference is in the absence of military necessity, with the blankets easily available in Oakland.
No doubt on certiorari the Supreme Court will remove the doubt raised by these phrases, which the majority opinion of this court well may be taken to have resolved in favor of an uncontrolled military autocracy.
In so far as concerns the permitted area of “subversion of private right,” General DeWitt’s orders lie between the comparatively innocuous curfew restriction and such chaining of the Japanese descended citizens. Whether here there has been such subversion well may be regarded as a border-line question. The nearest analogy to General DeWitt’s stockade confinement is the long-established and accepted process of quarantining of both the persons having such a dangerous and contagious disease as small-pox and those exposed to the disease, the latter until shown free of it after the period of its development has expired.
*299In my dissent in the Hirabayashi case are stated the several grounds of fact from which General DeWitt reasonably could infer that he could not speedily segregate from the Japanese communities in Military Area No. 1 those persons likely to engage in sabotage and espionage, and hence a necessity that all must be imprisoned and deported.3 Nearly all of them, though omitted from this court’s certificate, are restated in the Supreme Court opinion m that case, but the one most strongly appealing to one living .in the neighborhood of these communities and having dealings with their commercial houses is omitted. It is expressed in that dissent as
“Because of such limitation of social intercourse, people do not become familiar with the Mongolian physiognomy. The uniform yellow skin and, on first impression, a uniformity of facial structure, makes ‘all Chinks and Japs look alike to me’, a common colloquialism. Hence arises a difficulty for General DeWitt’s soldiers or the federal civil officers in picking out from the other Japanese crowded together in the segregated districts, and including men educated in Japan, the suspected saboteurs or spies or fugitives from a commando landing or hiding parachutists. Also the difficulty of identification of Japanese of known or suspected enemy aid, by descriptions telegraphed or written to white enforcement offices.”
War always causes some cruel treatment of the innocent, the more so global war. It is customary for the Supreme and other federal courts to comment, where claims of oppression arising from Congressional legislation are not regarded as making the legislation invalid, that the claimant should look to Congress for his remedy. It is within that practice to state that where, as a war necessity, such wrongs are deliberately committed upon its citizens by a civilized nation, ordinary decent standards require that compensation must be made as in the case of our broken treaties with another Mongoloid group, the American Indians. One properly may hope that it will not be delayed (because it involves the admission of the wrong) until it is given to descendants many generations removed from their wronged ancestors.
Giving due weight to Korematsu’s argument of the extent of the subversion of his private rights, constitutional and other, *300and of the degrading conditions imposed upon him and like citizens, it cannot be said that, considering the martial necessity arising from the danger of espionage and sabotage, General DeWitt’s orders exceed the area of discretionary powers legally to be exercised by him in Military Area No. 1.
EXHIBIT A
In the United States Circuit Court of Appeals for the Ninth Circuit
Gordon Kiyoshi Hirabayashi, Appellant, vs. United States of America, Appellee.
No. 10,308 March 28, 1943
Upon Appeal from the District Court of the United States for the Western District of Washington, Northern Division.
Opinion of DENMAN, Circuit Judge, on his dissent from the certification of questions to the Supreme Court, and from the omission of facts therefrom.
In Anglo Saxon law the right of a litigant to a reasoned opinion considering his contentions on issues raised was recogized at least as early as 1588 by Edmund Anderson on Elizabeth’s Queen’s Bench. See footnote lb, infra. Today it is codified in the nineteenth canon of the judicial ethics of the American Bar Association. 62 Rep. Am.BarAssn. 1937, p. 1129.
Of. My dissent in Hirabayashi v. United States, No. 10,308 our docket, filed March 28, 1943, which, because unreported and containing a consideration of facts pertinent to this concurring and dissenting opinion, is attached as Exhibit A and made a part hereof.
Resceit. The case of the resceit [intervention] was moved again, and Shuttle-worth said, that he cannot be resceived because he is named in the writ, and said, that he had searched all the books, and there is not one case where he which is named in the writ, may be resceived.
“Anderson. What of that? shall not we give judgment because it is not adjudged in the bookes before? wee will give judgement according to reason, and if there bee no reason in the bookes, I will not regard them.” (Emphasis supplied.) English Reports, 75; King’s Bench Book 4, 1019; Gouldsborough, 96. De Term. Trinitat. An. Reg. Eliz.
Judge Stephen’s opinion states that all the judges were agreed on the answer to the question so certified.
“1. From and after 6:00 A.M., March 27, 1942, all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1, shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew.”
“3. Nothing in paragraph 2 shall be construed to prohibit any of the above specified persons from visiting the nearest United States Post Office, United States Employment Service Office, or office operated or maintained by the Wartime Civil Control Administration, for the purpose of transacting any business or the making of any arrangements reasonably necessary to accomplish evacuation; nor be construed to prohibit travel under duly issued change of residence notice and travel permit provided for in paragraph 5 of Public Proclamations Numbers 1 and 2. Travel performed in [voluntary] change of residence to a place outside the prohibited and restricted areas may he performed without regard to curfew hours.”
I note Judge Stephens’ discussion of Admiral Perry’s invasion of Japan which, though not offered as such, has a logical relationship to General DeWitt’s orders.
Judge Stephens nowhere states that Japan’s laws forbade any foreign vessels entering Japan and her known isolationist policy. In international law it was her right to eject Perry’s fleet by force and if she had the power so to act it was her duty to use it to enforce her laws. Perry’s invasion invited the use of such force.
In this situation, our President’s instructions to Perry when he had brought his fleet into the harbor of Xedo (now Tokyo) —that is, invaded in force forbidden waters — were “Make no use of force, except in the last resort for defence, if attacked, and self-preservation.”
I do not agree that intelligent Japanese students are required to regard Perry’s entry as not an act of war. Rather one would think it not illogical for them to make the inference that,, having invited armed resistance, the instructions “Make no use of force, except in the last resort' for defence, if attacked,” say to Perry, “Having invaded Japan with our Navy, in defiance of their laws, you are to fight them if they perform their obligation to enforce their laws.” This is not offered as my inference, but as a not illogical inference of an intelligent Japanese and a not illogical basis for Japan’s claim that we invaded her without declaring war.
They well might ask, “What would Americans feel in the same situation?” Assume we passed laws refusing the admission of Japanese vessels and planes into the continental United States. Then assume that Japan, in defiance of such laws, entered San Francisco Bay with a fleet of cruisers, and landed on our fields a fleet of war planes, for a peaceful discussion by their admiral of the repeal of such laws, the admiral having the same instructions from Hirohito as Perry had from the President.
My own opinion is that however beneficent we may claim our purposes, Perry “let the genie out of the bottle.” It made, at least, a causa sine quo non for Japan’s seizure of South Western Asia, the Philippines and other islands, and one historic basis for the hatred of the white man.
I regard a people, rightly or wrongly, taught for decades that they have historic grounds for hating the white race the more likely to have among their descendants who are our citizens, again suffering because not white, the degrading discriminations described by the Supreme Court in the Hirabayashi case, men who may be dangerously disloyal. Or, at least, that General DeWitt properly could so infer, in justification for his deportation orders.