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Korematsu v. United States
訳文ステータス:日本語訳 (更新日:2008/05/21 16:48)
原文 日本語訳
Korematsu v. United States
Decided December 18, 1944

MR. JUSTICE BLACK delivered the opinion of the Court.


CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment of conviction.


有罪判決の適否を審査する裁量上訴、321 U.S. 760
1. Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942 from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner -- an American citizen of Japanese descent whose home was in the described area -- violated it. P. 219.

1. 日本との交戦状況の中、スパイ活動や破壊工作活動を防ぐために、西部防衛司令官が、Executive Order No.9066およびthe Act of March 21,1942による権限の下、公布し、全ての日系人が1942年5月9日までに特定西海岸軍事地域から立ち退くことを命じたCivilian Exclusion Order No.34は、その命令が発令された時点において、また、日系アメリカ市民で当該特定地域に居住していた上訴人がその命令に違反した時点において、合憲であった。 P. 219
2. The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding. P. 222.

2. 日系人に集合センターへの出頭を求めたり、日系人を集合センターや再定住センターに拘留することを定めた他の命令条項は、別の事柄であり、それらの法的効力の有無は今回の審査事項ではない。P. 222
3. Even though evacuation and detention in the assembly center were inseparable, the order under which the petitioner was convicted was nevertheless valid. P. 223.

3. たとえ、立ち退きと集合センターでの拘留が不可分な事柄であったとしても、上訴人を有罪としたCivilian Exclusion Order No.34は、やはり法的効力を有していた。P. 223
Solicitor General Fahy, with whom Assistant Attorney General Wechsler and Messrs. Edward J. Ennis, Ralph F. Fuchs, and John L. Burling were on the brief, for the United States.

Messrs. Saburo Kido and A. L. Wirin filed a brief on behalf of the Japanese American Citizens League; and Messrs. Edwin Borchard, Charles A. Horsky, George Rublee, Arthur DeHon Hill, Winthrop Wadleigh, Osmond K. Fraenkel, Harold Evans, William Draper Lewis, and Thomas Raeburn White on behalf of the American Civil Liberties Union, as amici curiae, in support of petitioner.

サブロー・キド、A. L. ワイリンの両氏が日系アメリカ人市民連盟を代表して上訴人側の上訴趣意書を提出し、エドウィン・ボルヒャルト、チャールス・A・ホースキー、ジョージ・ルブリー、アーサー・ドオン・ヒル、ウィンスロップ・ワドレー、オズモンド・K・フレンケル、ハロルド・エヴァンス、ウィリアム・ドレイパー・ルイス、トーマス・レイバーン・ホワイトの諸氏が、米国自由人権協会を代表し、上訴人を支持する文書を提出した。
Messrs. Robert W. Kenney, Attorney General of California, George Neuner, Attorney General of Oregon, Smith Troy, Attorney General of Washington, and Fred E. Lewis, Acting Attorney General of Washington, filed a brief on behalf of the States of California, Oregon and Washington, as amici curiae, in support of the United States.

MR. JUSTICE BLACK delivered the opinion of theCourt.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area.
日系アメリカ市民の一員である上訴人は、全ての日系人に1942年5月9日までに「軍事地域」から立ち退くことを命じた米陸軍西部防衛司令官によるCivilian Exclusion Order No.34に反し、「軍事地域」であるカリフォルニア州サン・レアンドロに残留したことに対して、連邦地方裁で有罪判決を受けた。
No question was raised as to petitioner's loyalty to the United States.
The Circuit Court of Appeals affirmed, 1 and the importance of the constitutional question involved caused us to grant certiorari.

巡回控訴裁は判決を維持した。「注1」 内包する憲法問題の重要性から本法廷は裁量上訴を受理した。
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 21, 1942, 56 Stat. 173, 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."

本件において、上訴人の起訴はAct of Congress, of March 21, 1942, 56 Stat. 173の違反を告発する起訴状から開始されたが、同Actは以下のように規定している。「…何人も、規定の軍事地域ないし軍事地帯へ立ち入る場合、そこに留まる場合、そこから立ち去る場合、またはそこでいかなる行為を行う場合も、大統領行政命令、陸軍長官ないし陸軍長官の任命した軍司令官による命令の支配下にあるものとし、何人も、このような地域ないし地帯に適用される制限に反した場合、または陸軍長官ないし上記の軍司令官による命令に反した場合は、もしこれらの制限ないし命令の存在と自らの行為がこれらに反していることを知っていたか、または知っていたはずであることが明らかな場合は、軽犯罪に当たるものとし、有罪判決を受けた場合は各々の規則違反に対して5,000ドルを超えない罰金ないし1年を超えない懲役、または両方を科されるものとする。」
Exclusion Order No. 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 No. 9066, 7 Fed. Reg. 1407.
上訴人が故意にまた明らかに違反したExclusion Order No. 34は数ある軍事命令及び布告の1つであり、これは実質的にはすべてExecutive Order No. 9066, 7 Fed. Reg. 1407に基づくものである。
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 was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m.
一連の命令及び布告の1つである夜間外出禁止令は、ここでの立ち退き命令のようにExecutive Order 9066に準じて発令され、上述の特定西海岸軍事地域にいる全ての日系人が、午後8時から翌日午前6時まで自宅に留まるよう強いられた。
As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage. "
In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order.
Hirabayashi v. United States, 320 U.S. 81において、当法廷は夜間外出禁止令に対してくだされた有罪判決を支持した。
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.

ヒラバヤシ有罪判決事件及び本件は、このように同じく1942 Congressional Act及び大統領行政命令及び軍事命令に基づいており、これらの命令は全て、スパイ活動および破壊工作活動の二重の危険に照準を定めたものだった。
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 amounted to a constitutionally prohibited discrimination solely on account of race.
1942 Actは、ヒラバヤシ事件において憲法に反した権限委譲であると批判された。夜間外出禁止令及び他の命令は、連邦議会、軍事当局および大統領の陸軍最高司令官としての戦争権限を超えており、また、夜間外出禁止令が適用されたのは日系市民に他ならず、これは憲法上禁じられる人種のみによる差別を意味することになると主張された。
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 of the gravest 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 No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared.
また、原告は、Order No. 34が公布された1942年には、西海岸における日本侵略の危険はすべてなくなっていたと主張する。
After careful consideration of these contentions we are compelled to reject them.

Here, as in the Hirabayashi case, supra, at p. 99, ". . . 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 unascertained 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 five thousand 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. 2

We uphold the exclusion order as of the time it was made and when the petitioner violated it.
Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 154-5. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens.
Chastleton Corporation v. Sinclair, 264 U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 154-5 比較。
Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships.
Ex parte Kawato, 317 U.S. 69, 73 比較。
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 the threatened danger.

It is argued that on May 30, 1942, the date 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 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time "until and to the extent that a future proclamation or order should so permit or direct." 7 Fed. Reg. 2601.
That "future order," the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did "direct" exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress.
今後の命令とは、原告が有罪と決定された違反に対するもので、1945年5月3日に発せられ、5月9日の12時になる前に、日系人述べての人をその地域から排除することを「命じる」ものであった。さらに、その命令は、禁止区域で発見された当該人物はすべて、March 21, 1942 Act of Congressに基づき刑罰に服する義務がある。
Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which 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 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area.

It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as "assembly centers," in order "to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration." Public Proclamation No. 4, 7 Fed. Reg. 2601.
And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers.
また、上訴人がその地域に不法に留まった廉で告発された時点から11日遡った1942年5月19日、Civilian Restrictive Order No.1,8 Fed. Reg. 982 は、集合センターまたは再定住センターにおける日系人の拘留を規定していた。
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 petitioner's 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 (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) 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, imposed 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.
Cf.Blockburger v. United States, 284 U.S. 299, 304.

Blockburger v. United States, 284 U.S. 299, 304. 比較。

There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses.

The Endo case, post, p. 283, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.

エンドウ訴訟では、排除命令の効力と、排除命令が発効した後の監禁命令の効力との違いをありありと例証している。post p.283
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.

上訴人が提起を求めている重大な憲法問題について判断するのは、集合命令もしくは強制移転命令が上訴人に適用されるか、 または適用が確実となり、その件を当法廷で審議する段階が妥当である。
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 No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center.
Exclusion Order No.34 が発行された1942年5月3日以降、コレマツは彼の意志とは関係なく、集合センターを通じて、そこから移動することを強いられていた。
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 towards the United States.
Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal 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, merely 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 -- determined that they should have the power to do just this.
彼が排除されたのは、われわれが日本帝国と戦争をしていたからであり、正当に設立された軍当局が西海岸への侵攻を恐れ、適切な警備対策をすることを強いられていたからであり、状況の軍事的緊急性に鑑み、軍当局が、日本人の先祖をもつすべての市民を西海岸から一時的に隔離すると決定したからであり、そして最後に、議会は戦争のこのとき、軍の指導者を信頼し、??それは当然のことであるが ?? 軍当局は少なくとも、これをする権限だけは持つべきであると決定したからである。
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.


1 140 F.2d 289.

2 Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608-726; Final Report, Japanese Evacuation from the West Coast, 1942, 309-327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H. R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37-42, 49-58.


注1 140 F.2d 289.

注2 Naional War Agencies Appropriation Bill for 1945, Part II, 608-726に関する議会小委員会における聴聞、Final Report, Japanese Evacuation from the West Coast, 1942, 309-327、ならびにImmigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701および合衆国一部国民を追放するその他議案 pp.37-42, 49-58に関する下院委員会における聴聞。
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