HOW INTERNMENT BECAME LEGAL

To the Editors:

David Cole’s interesting piece “Trump’s Travel Bans—Look Beyond the Text” [NYR, May 11] repeats a common mistake about the Supreme Court’s decision in Korematsu v. United States: that the Court’s decision “upheld the internment” of people in the United States because of their Japanese ancestry. Any review of the decision, at 323 U.S. 214 (1944), will reveal that the Korematsu decision upheld the exclusion of such persons from designated zones on the West Coast, not their internment. Another decision the year before had upheld a conviction for such a person violating the imposed curfew, Hirabayashi v. United States, 320 U.S. 81 (1943). Finally, in the only Supreme Court decision I am aware of that addressed internment, the Court, on the same day that it decided Korematsu, struck down an order of internment (although not on constitutional grounds), ruling that there was no basis for keeping loyal evacuees of Japanese ancestry in custody on the ground of community hostility: Ex parte Endo, 323 U.S. 283 (1944).

I am sure David Cole is or has been aware of these distinctions and that the mischaracterization of Korematsu was a slip or a simplification. And to be fair, the Court in Korematsu was asked to treat the exclusion and internment issues as inextricably intertwined. The Court declined to do so and declined to address internment in the circumstances of that case. That decision not to rule on internment may have had some substantial practical effect, but it is nevertheless different from a decision upholding internment. The mischaracterization has become so common that it deserves correction.