Courtroom Simulation Talking Points — Korematsu v. U.S.

This activity is a modification of an Oxford style debate. The presiding judge asks three central questions and gives each side the opportunity to respond, using the suggested talking points. Participants may read the points as scripted, but are encouraged to incorporate their own thoughts and opinions. The judge asks each participant-attorney unscripted follow-up questions at the podium before he/she returns to the counsel table.

Opening Protocol

A Law Clerk announces the Judge. 

The Judge takes the bench, welcomes the group, and says: The overarching issue that we are dealing with today is: During times of war or imminent danger, does the Constitution give the government the authority to restrict individual rights in favor of public safety?

Judge: Is Counsel for the Plaintiff ready? 

Korematsu’s Attorney #1 (Stands at counsel table): Yes, Your Honor.

Judge: Is Counsel for the Government ready?

Government’s Attorney #1 (Stands at counsel table): Yes, Your Honor.

Judge: Counsel for the Plaintiff may proceed.

Attorneys for the Plaintiff      

Attorney #1 (Goes to the lectern)

"May it please the Court?  My name is {insert name}. I am from {insert place}. My colleagues and I are counsel for Mr. Fred Korematsu, the Plaintiff before this Court today. There are three issues before the Court. I will argue the first issue. Seated at the Plaintiff’s counsel table are my colleagues who will handle the other issues and closing arguments.They will introduce themselves and tell you where they are from. (Attorney #1 sits down.)

Attorney #2 (Stands at counsel table)

I am {insert name} from {insert place} and I will be handling Issue #2. (Sits down.)

Attorney #3 (Stands at counsel table)

I am {insert name} from {insert place} and I will be handling Issue #3. (Sits down.)

Attorney #4 (Stands at counsel table)

I am {insert name} from {insert place} and I will be handling the closing arguments for the Plaintiff. (Sits down.)

Judge: Counsel for the Defendant may proceed with your introductions.

Attorneys for the Defendant

Attorney #1 (Goes to the lectern)

"May it please the Court?  My name is {insert name}. I am from {insert place} and I will be arguing the first issue on behalf of the Government. Seated at the counsel table are my colleagues who will handle the other issues and closing arguments. They will introduce themselves and tell you where they are from. (Sits down.)

Attorney #2 (Stands at counsel table)

 I am {insert name} from {insert place} and I will be handling Issue #2. (Sits down.)

Attorney #3 (Stands at counsel table)

I am {insert name} from {insert place} and I will be handling Issue #3. (Sits down.)

Attorney #4 (Stands at counsel table)

I am {insert name} from {insert place} and I will be handling the closing arguments for the Defendant. (Sits down)

Judge: The attorneys will make their arguments, then we will open the floor to you, in the gallery, to join in the debate as jurors.  At the end, we will take a vote to determine the verdict.

The Issues

Issue 1

During times of war or imminent danger, does the Constitution give the government authority to restrict individual rights in favor of public safety?

Attorney #1 for Korematsu: No.  The government can never discriminate on the basis of race, ethnicity, country of origin, or religion. The government cannot justify discriminatory action against an entire group and it can never engage in collective suspicion or collective guilt. 

President Roosevelt’s Executive Order 9006 went well beyond the war powers of Congress, military authorities, and the President as Commander in Chief. The exclusion order, as it was called at the time, gave the military the authority to exclude people of Japanese descent from certain areas, particularly military bases the surrounding area.  

The order allowed the military to round up, relocate, and detain for an indefinite time an entire race of people living on the West Coast. To apply such orders only to one race is obvious racial discrimination that is prohibited by the Constitution.
The government had already established a curfew only for people of Japanese descent.  The exclusion order went too far.  It forced Japanese people — two-thirds of whom were American citizens — to abandon their homes and their businesses. Once they were gathered at regional assembly centers they were transported to remote locations in seven states and detained there for up to four years.  

Attorney #1 for U.S. Government:  Yes. We are talking here about times of war or imminent danger. And we are talking about the government’s first priority — keeping us safe. To effectively protect us, the government must take actions that are equal to the threats we face. 

On December 7, 1941 we were in a war emergency. The Japanese launched a surprise attack on Pearl Harbor in Hawaii which, at that time, was a U.S. territory. No one knew if the Japanese had already infiltrated the mainland of the United States. However, that would have been a logical assumption.

Of course, emergencies should never be used to justify racial discrimination or harassment. That is why our system of checks and balances is so vital. The Judicial Branch must exercise its power to provide a check and balance on the war powers of the Executive and the Legislative branches.  In such instances, courts must apply “rigid scrutiny” to the issues. Sometimes the courts will find that actions that would not be acceptable in peace time turn out to be Constitutional in times of war.

We will continue to aspire to the lofty ideals in the Constitution. However, if we are going to keep our Constitutional government and our democratic way of life, we have to safeguard our ideals with common sense. 

It’s a matter of being smart about the threats we face and about activating our system of checks and balances. These are not easy decisions to make but, ultimately, we have to strike a balance between individual rights and public safety.  

Judge might ask follow-up questions after each attorney speaks.

Issue 2

Should the government defer to the military in times of war or imminent danger?

Attorney #2 for Korematsu: No. It is the duty of the courts to uphold the Constitution, even in times of imminent danger or war.

The exclusion order was an action based on a plea of military necessity.  The need for it was neither substantiated by the facts nor justified by the actions of the targeted group. 

The exclusion order was a wholesale confiscation of the rights of more than 120,000 people of Japanese descent, the majority of whom were American citizens.

Unlike other countries, America has a long and proud tradition of a civilian-run military to prevent military overreach.

Attorney #2 for U.S. Government: Yes. The war-making branches of government — the Executive Branch and the Legislative Branch — have the authority to take measures to protect the country. The military is under the command of the President.

In times of imminent danger the military makes decisions based on information and intelligence that is not accessible to the Judicial Branch.

President Roosevelt did not surrender his authority as the civilian Commander in Chief.  He issued the order and the military followed it. In times of imminent danger the military must be given discretion in how to implement an Executive Order.

Let’s keep in mind the anti-Japanese sentiment in the country at the time. The Japanese were under military protection from the time they reported to the assembly centers, through the transportation process to other locations to the designated sites, and during the time they lived in the safety of the camps.

Judge might ask follow-up questions after each attorney speaks.

Issue 3

Is the government ever justified in sending U.S. citizens to detention centers when they have not been charged with or convicted of a crime?

Attorney #3 for Korematsu: No. The government can fulfill its responsibility for public safety without imprisoning law-abiding citizens. 

Government officials have many tools at their disposal. They can impose curfews that keep people off the streets during certain hours. They also can ban people from certain places, like nuclear plants, for example. 

However, detaining Americans on American soil, when the detainees have not been charged with nor convicted of a crime is always — and should always be — unconstitutional.  

Attorney #3 for U.S. Government: Yes.In times of grave peril or imminent danger the government’s primary responsibility is to keep people safe.  At such times it becomes necessary to give up some individual liberties in the name of public safety.

Times of imminent danger force a society to rethink and, sometimes, make adjustments to the balance between public safety and individual liberties. Because war time presents unique threats and challenges, government action taken in this environment should be understood in the context of war time — not in the context of peace time.

The government’s power to protect must be equal to the level of danger that is threatened. Everyone suffers hardships in times of war and, unfortunately, those hardships are not shared equally by all. It is unfortunate, but it is reality.

When the country’s very survival hangs in the balance, that changes the equation from theoretical to imminent danger. That is the time when we must decide in favor of public safety, even if the decision puts some limits on individual liberty.

Judge might ask follow-up questions after each attorney speaks.

Closing Arguments

Purpose of Closing Arguments: To persuade the jurors to adopt your view of the significant points favoring your team's position on each issue. In their closing, each attorney argues the merits of their case.

Each Attorney #4 addresses the judge and jurors:

I would like to review with you the key points presented today.

Issue #1: During times of war or imminent danger, can race, ethnicity, country of origin, or religion be the basis for assessing a threat to national security and taking action against a particular group?

{Write the key words from the main point that you want to emphasize. Why should the jury support your position on this point?}

Issue #2: Should the government defer to the military in times of war or imminent danger?

{Write the key words from the main point that you want to emphasize. Why should the jury support your position on this point?}

Issue #3: Is the government ever justified in sending U.S. citizens to detention centers when they have not been charged with or convicted of a crime?

{Write the key words from the main point that you want to emphasize. Why should the jury support your position on this point?}

Summary:{Of all the points argued, what is the most compelling reason the jury should decide in favor of your client?}

Judge (after the last closing argument): Now that you’ve heard the closing arguments, I will turn over the program to the moderator to facilitate the jury deliberations.