Shannon Smith

Poli Sci 319

July 30, 2012
Plessy and Korematsu

The contextualization of both decisions rendered in Plessy v.

Ferguson and Korematsu v. United States shows how the Supreme
Court failed to provide a fair interpretation of the constitution and
certain amendments that dealt with rights of citizens. Influenced by
hostile public opinion and partisanship, the justices provided
incomprehensible interpretations in cases dealing with the rights of
citizens in America after Reconstruction. The public opinion commonly
held was imperialistic and racist. The understanding of the decisions
rendered in each case shows strong evidence towards an attempt to
appeal to a hostile public opinion, while disregarding the violation of
rights committed. Although the two cases are close to fifty years apart,
I will examine both time periods and put into context the social/political
and legal dimensions that had such an affect on the rulings in each
case, and attempt to show why the justices may have felt compelled to
judge in favor of the public opinion even though it was not the right
decision in both cases.
Plessy v. Ferguson
In 1896, the Supreme Court heard a case that originated in
Louisiana, brought forth by Homer Plessy. Plessy challenged the state
of Louisianas 1890 Separate car act, an act that required separate
railway cars for black and whites. The act was the result of a doctrine

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Poli Sci 319
July 30, 2012
that politicians referred to as separate but equal accommodations
this was very common throughout the south. Plessy argued that
separate but equal was a violation of rights stated in the thirteenth
amendment and fourteenth amendment. The fourteenth amendment
was very important in this case, since it guaranteed rights to all
citizens of the United States, and also extended equal protection in
regards to those rights. A 7 to 1 decision rejected Plessys argument,
holding that the separate but equal doctrine mandated by state
governments was in fact constitutional under the equal protection
clause. The decision in this case, would be one of the main reasons for
further segregation legislation in the south, culminating with the Jim
Crow laws during the Civil Rights era.
The political climate of America during the Plessy era is very
revealing, and it can perhaps explain why the justices voted against
Plessy. The Plessy decision came after reconstruction, but during
reconstruction the federal government, mobilized by the Republican
Party started to extend more rights to African Americans. Republicans
passed the thirteenth amendment, which abolished slavery, the
fourteenth amendment, which provided equal protection to all citizens,
and the fifteenth amendment, which denied any state the right to
prevent a citizen from exercising their right to vote. Most republican
politicians represented states in the north, leaving the south, which
was mostly represented by Southern Democrats. During

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Poli Sci 319
July 30, 2012
Reconstruction, Republicans had been committed to protecting black
rights, partly for ideological purposes and partly for partisan ones:
Blacks voted overwhelmingly Republican (Klarman 14). After the
reconstruction period there was a slight change in attitude from the
Northern Republicans in protecting the rights of African Americans in
the south. The Republican Party abandoned the protection of black
rights, previously witnessed in the reconstruction era. The south was
gaining power, state governments in the south passed new legislation
that prevented many African Americans from exercising their newly
granted rights also known as disenfranchisement laws.
Disenfranchisement laws prevented or made it very hard for African
Americans from voting, running for office, and serving on a jury.
Race relations in the south did not improve after reconstruction.
The south was composed of a great number of white farmers who were
in favor of not giving rights to blacks. Suffrage legislation passed by
Republicans in the north, made relations between southern whites and
blacks even more polarized. Responding to the support of black
suffrage from northern republicans, southern democrats consolidated
their power in the form of various institutions and laws passed at the
state level. Southern farmers formed the Farmers Alliance as a
response to the new wave of wage earning black farmers. The Farmers
Alliance, generally held views of white supremacy. The precarious
economic and social status inclined them [southern white farmers] to

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Poli Sci 319
July 30, 2012
treasure white supremacy (Klarman 11). Also southern whites were
increasingly engaging in white supremacy groups such as the Ku Klux
Klan. The KKK aimed to discourage blacks from exercising their rights,
and even went as far as physical violence to deliver their message. It is
clear to see that the public opinion in the south for the most part was
against any legislation that expanded the rights for blacks. From 18951900 there was an average of 100 blacks lynched each year, surprising
enough this is when the rate peaked, and it shows a clear negative
attitude from white southerners toward blacks in the south.
Throughout the era, there were many cases that dealt with
issues similar to those presented in Plessy v. Ferguson. These cases
also show examples of how the courts dealt with race in the south, and
also how they would interpret the amendments in regards to blacks.
One in particular is the case of Giles v. Harris, which involved Jackson
W. Giles in 1903. Giles sued the state of Alabama on behalf of five
thousand black citizens of Alabama, requesting that the federal
government step in and require that the state register them to vote.
The case challenged the disenfranchisement laws that prevailed
throughout the south. This is a clear case that goes against the
fifteenth amendment, because the state has clearly denied citizens the
right to vote, primarily because of their skin color. Surprisingly enough,
the Supreme Court refrained from using its power of judicial review,
and refused to assist blacks in Alabama who were being denied the

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Poli Sci 319
July 30, 2012
right to vote. The courts failed to protect the rights given to blacks by
the federal government, and allowed the state government more
power to restrict them. The Giles decisions suggest that even plain
constitutional violations during peacetime may go undressed in the
face of hostile public opinion (Klarman 37).
Fast forwarding 48 years, we have another case that allows us to
see how the Supreme Court fails to use its judicial review and
succumbs to hostile public opinion in its rulings.
Korematsu v. United States
In 1944, the federal government had progressed greatly in
comparison to the Plessy era as far as becoming more involved in state
affairs. Blacks in the south were still discriminated against by Jim Crow
laws, but the violence from supremacy groups was on the decline. The
country was now at war, following the surprise attack from Japan on a
United States naval base in Hawaii on December 7, 1941. This attack
forced the United States to enter into World War II. As a result Japan
was now the enemy, and the United States now had a small homeland
problem that was viewed as a threat to the national security of the
nation. The threat was the many Japanese-American that resided on
the pacific coast of the country. The federal government, headed by
the executive branch issued special legislation that would deal with the
Japanese American problem on the west coast. The government

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Poli Sci 319
July 30, 2012
ultimately decided to place all Americans of Japanese-descent into
internment camps under the suspicions of espionage.
This new era brought forth more about Supreme Court cases that
challenged the rights of citizens, only this time it was a different
minority. This new type of case asked the question: What rights are
citizen of the United States guaranteed, even in times of war? The
Korematsu case challenged the expansive powers of the executive
branch during wartimes.
Fred Korematsu was a Japanese-American who resided in
California at the time of the war. After World War II started, President
Franklin Roosevelt issued Executive Order 9066. E.O 9066 authorized
for the Secretary of War the power to prescribe certain areas as
military zones. These military zones were set up along the west coast
of the United States, and Americans of Japanese-descent were
restricted from them. Fred Korematsu refused to leave the exclusion
zones, and as a result he was arrested. Korematsu challenged his
conviction on the grounds that the exclusion order enforced by the
government was a violation of his Fifth Amendment rights, which
protected citizens against the abuse of government authority in a legal
procedure. The case was taken to the Supreme Court, where the
Supreme Court justices would rule that the government was justified in
its actions of exclusion. For the majority, Justice Black argued that, it
was the militarys prime responsibility to formulate and carry out

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Poli Sci 319
July 30, 2012
whatever measures were needed to meet the threat(Grossman 6).
The Supreme Court also concluded that the need to protect against
espionage outweighed Korematsus individual rights, especially in the
time of war. This decision essentially ruled the executive branch could
exercise expansive powers in the time of war.
The social climate of America during World War II was not good
for Japanese-Americans. In times of war American citizens became
more patriotic and we can only assume the sentiment towards the
Japanese was negative. The overwhelming public opinion may have
persuaded the courts to provide a limited scope that allowed the
executive branch to continue doing what it felt was the right thing to
do in the time of war. The Justices also referred to past cases to
support its decision, one of the cases cited is Hirabayashi v. United
States. In this case the court upheld the curfew violation, but when
addressing the exclusion order the justices simply refused to address
it. Citing the pervasiveness of the war power, and accepting as fact
the claim that the Japanese Americans represented a serious
threat(Grossman 6).
The decisions made in both the Plessy and Korematsu cases
provide clear evidence of the Supreme Court intentionally refraining
from using its power of judicial review. This was possibly a move to
appeal to the hostile public opinion against Japanese and stay
consistent precedent set in previous cases that dealt with internment.

Shannon Smith
Poli Sci 319
July 30, 2012
The dominant racial ideologies of the country in both eras were against
the minorities in the cases, and although it was never documented, it
can easily be argued that some of the justices deciding in both cases
shared similar racial ideologies as the majority public opinion. The
little that is known about the racial views of the justices on the Plessy
court suggests little deviation from dominant public opinion(Klarman
16). The only real judicial review of this time would be seen from
Supreme Court Justice Harlan. In a good majority of the cases he
heard, his opinions usually tried to use color-blind justice, where race
would not be a deciding factor in his opinion, he tried to interpret the
intentions of the constitution Perhaps the only judicial activism
available at the time.
The context in which both cases were decided does not make
them surprising, especially taking into consideration the hostile public
opinions of both time periods, the racial ideologies of whites, and the
way the Judiciary restrained from going against the majority opinion of
the public. In the majority opinions of both cases, the courts offered an
incomprehensible interpretation of the constitution. The Supreme Court
failed in appropriately applying judicial review in both Korematsu and
Plessy. Instead the court provided interpretations that appealed to the
majority racist white citizens.
Both decisions had lasting effects well beyond the eras they were
decided. In Plessy the decision allowed state governments the ability to

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Poli Sci 319
July 30, 2012
create a segregated America. With Jim Crow in the South, separate but
equal thrived and showed the true racial ideologies of whites in many
parts of America, which allowed institutional racism to prevail in
America a lot longer than it should have. In Korematsu, the decision set
forth would allow the executive branch unchecked power in times of
war. It also ushered in a new era where in times of war rights of
citizens guaranteed to them by the constitution could be retracted if
the interest of the greater public depended on it.
This leads me to conclude in my belief that the Plessy decision
was a legally weaker decision. It was weaker because even though the
decision expanded the powers of state and local governments, this was
only short term. Over time state and local governments power in
regards to citizens rights were reduced drastically as the country
evolved, and racial ideologies changed. The Korematsu decision
expanded what the government could do, especially in times of war.
Even today the federal government still holds potential unlimited war
powers. Fast forwarding to current times, The United States initiated a
war on terrorism, and the federal government exercised its war powers
to infringe on the rights of many Americans who may be suspected of
terrorism. Precedence set in Korematsu has yet to be corrected or
addressed.