What many of these Asian Americans sought was not to pass into a complete and total whiteness that could hide their otherness, but to escape into the realm of racial ambiguity.

UC Santa Barbara Journal of Transnational American Studies

Title When You Can’t Tell Your Friends from “the Japs”: Reading the Body in the Korematsu Case

Permalink https://escholarship.org/uc/item/2vg2x0ds

Journal Journal of Transnational American Studies, 4(1)

Author Kim, Heidi Kathleen

Publication Date 2012 Peer reviewed

eScholarship.org Powered by the California Digital Library University of California




When You Can’t Tell

Your Friends from “the Japs”:

Reading the Body in the

Korematsu Case





“Parks. Brown. Plessy. To that distinguished list, we add today the name of Fred

Korematsu,” said President Bill Clinton gravely, as he awarded Korematsu the

Presidential Medal of Freedom in 1998. As the plaintiff of Korematsu v. United States

of America, one of the Supreme Court test cases of the legality of Japanese American

incarceration, Korematsu’s personal legacy has been chiefly one of civil rights

activism based on his role in this case, the 1980s appeals, and his amicus briefs in

Rumsfeld v. Padilla and other Guantánamo Bay detention cases in the 2000s.

The strange case of Fred Korematsu is most famous for the legal precedent it

set for the incarceration of citizens without trial in time of war, a precedent that has

been heavily discussed in recent years in the specter of post-9/11 racial profiling and

the citizens and enemy aliens held at Guantánamo Bay prison. In this article, I look

more broadly at the logic behind this decision, showing that the Korematsu case is a

keystone both of legal decisions that sought to define Asia and America in terms of

continually shifting readings of race on the American subject’s body. Even more

crucially, Korematsu’s brief, a legally irrelevant attempt to pass as non-Japanese, is

part of a larger social dilemma about the racialized Asian body in America during and

after WWII, which formed an integral part of the logic that allowed the Supreme

Court to claim that military necessity was the reason for mass incarceration.

Fred Toyosaburo Korematsu was born in Oakland, California to Issei parents

and grew up in the area. On December 7, 1941, he was driving in his car with his white

girlfriend when he heard the news on the car radio. On Monday, he reported to the

shipyard where he worked as a welder and was fired. He tried to enlist in the Coast

Guard or army (reports vary) but was turned down for stomach ulcers—this was



before the general change to 4-C (alien) Selective Service status for Japanese

Americans. He was planning to go to Nevada or the Midwest with his girlfriend when

his family was forcibly taken to the Tanforan Assembly Center. Soon afterwards, he

had plastic surgery to look, in his own words, more “Caucasian,” and changed his

name on his draft card to Clyde Sarah. Nevertheless, he was arrested on a street

corner on May 30, 1942. When approached by Northern California American Civil

Liberties Union (ACLU) official Ernest Besig, he accepted the offer of legal

representation and eventually became the plaintiff of the landmark case Korematsu

v. United States of America, in which the Supreme Court upheld the constitutionality

of Executive Order 9066, which ordered Japanese Americans into incarceration

camps during World War II, with a vote of six to three. Korematsu’s criminal

conviction (though not the ruling on constitutionality) was overturned in 1983 in the

Federal District Court that had originally convicted him on the grounds that the

government had knowingly suppressed information about the “innocence” of

Japanese Americans. 1

Korematsu’s attempt to elude incarceration, though brief and unsuccessful,

raised the question of racial visibility at a time when the bodily identification of

Japanese Americans and the potential spies among them was directly linked to the

actual state-mandated incarceration of 110,000 Japanese Americans living on the

west coast of the United States. Time magazine, less than two weeks after the attack

on Pearl Harbor, famously offered a few “rules of thumb” on “How to Tell Your

Friends From the Japs,” a subject of real concern during wartime paranoia about

spies. Life offered a similar spread, “How to Tell Japs from the Chinese,” both

complete with photographs. 2 These popular examples are extremely well known, but

less well known is the role of racial recognition on the legal side of the incarceration.

While attempting to avoid charges of racism, government officials seriously cited the

inability to tell Japanese apart from each other and from other Asians as a reason to

incarcerate them. Korematsu’s experience offers a hard look at the ongoing difficulty

of disentangling the social and physical constructs of race, particularly when used as

grounds for discrimination and incarceration.

Peter Irons, one of Korematsu’s lawyers in 1983, notes that “[f]rom the time

of his arrest to the present, accounts of his case have uniformly portrayed Korematsu

as a young man impelled by romance alone, and whose effort to change his features

was a bizarre response to DeWitt’s exclusion order.” 3 Such accounts are, for the

most part, perfunctory; even Korematsu’s obituaries mention the facial surgery and

his girlfriend without much discussion of their context or impact. Historians of the

Japanese American and Asian American experience have often referred to his

“plastic surgery,” but do not trace the trajectory of how these facts were narrated,

mostly focusing instead on the case. 4 This study will focus on how Korematsu’s

surgery was portrayed, providing a foundation for the intersection between the

cultural studies that have been done on cosmetic surgery, particularly ethnic or

racialized surgery, and the legal and historical studies of the importance of racialized



appearance in court cases about citizenship and civil rights.

Racialized cosmetic surgery is usually described as the alteration of specific

features that have come to be classified with the negative characteristics of a race—

most commonly, for an east Asian, the lack of an epicanthic fold around the eyes and

the shape of the nose. Korematsu’s plastic surgery can be mentioned without the

typically mixed reaction from the Asian American community or the macabre

fascination of the mainstream media with Asian and Asian American plastic surgery in

the late twentieth century because audiences interpret Korematsu as acting under

what Sau-ling Cynthia Wong so aptly dubbed “necessity” while impelled by

“extravagance.” While her exploration of these terms focuses on literature, her

historical foundation allows me to expand her framework—in particular her

consideration of Asian American mobility as necessity—“subjugation, coercion” or

duress—rather than adventure or exploration. The incarceration of Japanese

Americans living on the west coast certainly was coercion, and allows for the

consideration of Korematsu’s actions without the judgment of political resistance. 5

Perhaps there has also been an unwillingness to besmirch Korematsu’s

reputation as “civil rights hero” with too much talk about his surgery, which is

predicated on its negative implications. The scholarship on cosmetic surgery,

particularly racialized surgery, has sought at different moments to map subjects’

motivations and desires in condemnatory or redemptive fashion. Such studies have

typically omitted Korematsu in tracing their historical trajectory, and often their focus

on aesthetics and economics fails to consider the legalized discrimination that drives

surgery, particularly in earlier periods (i.e., the first half of the twentieth century).

This article may serve to break boundaries in both directions, contributing to the

depolarization of “good and bad” and “resistant and accommodating” Asian

subjects as Viet Nguyen suggests is necessary. Looking at perhaps the earliest

passing of an ambiguous Asian subject, the half-Chinese half-white British author

Winnifred Eaton/Onoto Watanna, Nguyen speculates that her passing for Japanese in

the early twentieth century demonstrates neither rebellion nor accommodation, but

constitutes a “viable and important political gesture.” This critical scrutiny of passing

as strategy marks other recent Asian American studies of bodily presentation, such as

Leslie Bow’s examination of supposed feminine betrayals as “acts of subversion.”

Korematsu’s reputation as a heroic subject, brought to bear on this debate, furthers

the revision of passing and plastic surgery as something other than accommodation. 6

Korematsu’s spoken motivation was to be allowed to stay at home and marry

his girlfriend. Sander Gilman places the stakes of plastic surgery very high, saying that

the goal is nothing less than happiness, but that the location of happiness had at the

end of the nineteenth century been transformed from the “political ‘unhappiness’ of

class and poverty” to the “‘unhappiness’ found within the body.” 7 Early plastic

surgeons and their patients specifically disclaimed the alteration of racialized

features as an attempt to “pass.” The most discussed early example was Jewish

American actress Fanny Brice, who said after altering her nose in 1923, “I wanted to



look prettier and my nose was a sight in any language, but I wasn’t trying to hide my

origin.” The racialized or ethnicized body could be a construct separate from race

and ethnicity, Brice and other patients claimed, yet simultaneously, the Supreme

Court sought to define citizenship rights based on racial origin and racialized

appearance. 8

Studies of Asian American plastic surgery typically focus on the large numbers

of facial surgeries in the last two to three decades, some reaching back to the

postwar era. Gilman’s rhetoric echoes the inalienable American right to the “pursuit

of happiness,” and the right to plastic surgery has been portrayed by Asian

Americans as an exercise of their purchasing power and as an example of American

freedom. David Palumbo-Liu complicates this with patients’ strategems—a desire for

economic improvement being chief among them—and further points out that Asian

American plastic surgery has its roots in the state’s post-WWII Americanization

projects in Asia that strove to make the Asian subject easier to assimilate. Eugenia

Kaw’s oft-cited anthropological study attributes these surgeries to a stated desire to

escape the socioeconomic inferiority associated with Asian racialized features—

“passivity, dullness, and a lack of sociability”—rather than an overt desire to look

prettier or whiter. 9

A central debate of these surgery studies has been whether the choices of the

patients capitulate to a centralized, white standard of beauty. Some modern scholars

attribute a more resistant or diverse attitude toward appearance. Traise Yamamoto

interprets modern cosmetic eye surgery on both Asians and Asian Americans as both

“reappropriation” and “reinscription,” noting that the patients themselves often

disclaim a desire to look ‘white’ (as did Fanny Brice), even sometimes specifically

warning the surgeon against such a result. She points out that the identification of

the epicanthic fold with whiteness (as opposed to, say, blackness or those Asians

who have the fold) essentializes these features. 10

As an Asian American figure who

had cosmetic surgery, whatever his motivations, Korematsu links the uneasy

consideration of modern surgery and the other trappings of racial passing with the

legal history of civil rights and citizenship rights, forcing us to consider the role of the

body’s possible malleability in legal history. As Bow writes, “[T]heorists of racial

passing . . . reveal [that] racial ambiguity can represent a site for exposing the stakes

underlying the terms of social division.” 11

Racial ambiguity, whether natural or

surgically induced, enables passing and undermines the attempt to clearly delineate


Prominent African American magazines repudiated passing as unsavory and

unnecessary while claiming participation in the postwar economic abundance of the

1950s. At the same time, many Japanese Americans were trying, if not to “pass,”

then to demonstrate Americanness through conformity to white middle-class

standards. This was also the decade when ethnic Asians on both sides of the Pacific

started to seek cosmetic surgery in substantial numbers. Kimono-clad beauty queens

of the prewar era gave way in the 1950s to bouffant-haired pageant contestants clad



in western-style dresses. Others on the fringe of the community opted for a different

disguise, as many “resettled” Nisei attempted to pass as other Asian ethnicities in

order to escape prejudice. One such Nisei, Bill Katayama, did this during the war as

well as afterward, at one point claiming a fictional half-Japanese, half-Korean

identity. 12

What many of these Asian Americans sought was not to pass into a

complete and total whiteness that could hide their otherness, but to escape into the

realm of racial ambiguity.

This bodily and social ambiguity existed alongside the complex historical

negotiation of the citizenship rights of ethnic minorities in the United States. Judge

William Denman of the Court of Appeals even incorporates the social and legal

“passing” parallelism in his lengthy opinion about the Korematsu case: “[Korematsu]

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.” Denman sees pathos predicated on

certain failure, though his awkward wording betrays some uncertainty. It seems

patently obvious that some Americans of “one-sixteenth negro blood” have passed.

Yet, Denman misstates the concept of passing as involving the eradication of that

last one-sixteenth of racialized blood as necessary for true passing. His insistence

reveals the fear that race is, essentially, “social intercourse,” so that someone like

Korematsu could actually pass over and change his race by associating with all white

Americans if only he could eradicate his features. 13

Using a new vocabulary about the

racialized Asian appearance, Korematsu and his legal counsel sought in vain to find

the grounds of racial definition, combating every possible “proof” of race and

national loyalty they could think of from complexion to career choice. The issue of

appearance, however, never lost its primacy in Korematsu’s mind. In 1983, he bluntly

told the court, “According to the Supreme Court decision regarding my case, being

an American citizen was not enough. They say you have to look like one, otherwise

they say you can’t tell a difference between a loyal and a disloyal American.”

Other Asian Americans had historically identified and manipulated the public

presentation of the body, as well as the body itself, in order to legally claim status as

Americans. When Wong Kim Ark, plaintiff in the landmark 1898 Supreme Court case

about native-born Chinese American citizenship, claimed that he was a citizen by

birth, US district attorney Henry S. Foote contended that Wong had “been at all

times, by reason of his race, language, color, and dress, a Chinese person.” 14


bizarre list of qualities mixes the changeable with the supposedly unchangeable in a

way that throws doubt on the definition of race (and color), which was certainly

mutable at the time. Erika Lee’s examination of illegal Chinese immigration via

Mexico and Canada includes anecdotes of Chinese disguising themselves as Native

Americans, Mexicans, and even African Americans. This usually involved costume,

color, and a bit of language. The Buffalo Times claimed that smugglers would put



Chinese in “Indian garb,” give them a basket of sassafras, and row them across the

lakes from Canada into the US. Those who came from Mexico would put on “the

most picturesque Mexican dress.” Those coming from Cuba, a US government report

claimed, were painted black and blithely walked ashore. As Lee phrases it, the

Chinese immigrants put on new “racial uniforms” to pass as the dominant “others”

of particular regions, benefiting from racial stereotypes by avoiding new scrutiny. 15


With little history of long-term social passing, passing by Asians was thus

documented in this era as a specifically illegal, border-crossing strategy.

Previous legal cases, particularly those about citizenship, insisted upon both

the illegibility and legibility of racial appearance. Placed in this genealogy, the

ambiguity suggested by the plastic surgery in Korematsu can be seen as a long-

standing vexation that parallels the social history of racialized surgeries. The often

paired landmark cases Takao Ozawa v. United States (1922) and United States v.

Bhagat Singh Thind (1923) have been studied by innumerable scholars. However, it is

particularly important to note that neither of these much-studied cases challenged

the constitutionality of racial bias in citizenship requirements. Instead, the court was

asked to rule on racial definitions based on history, culture, geography, and

appearance. Ozawa had attempted to classify the Japanese as white on several

grounds, including that of skin color. The court replied that skin color was a specious

test to apply, since, as they asserted, the skin color test was “impracticable, [skin

color] differs greatly among persons of the same race, even among Anglo-Saxons,

ranging by imperceptible gradations from the fair blond to the swarthy brunette, the

latter being darker than many of the lighter hued persons of the brown or yellow

races.” They therefore restricted the white race to “what is popularly known as the

Caucasian race,” eschewing racialized appearance in favor of a “popular” definition

of race. 16


In 1923, the same year as Brice’s surgery, Thind attempted to have himself, as

a “high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India” declared

Caucasian, rather than white. Once again the court declined to consider ethnology

and took refuge in “popular” understanding of whiteness, but the footnotes to the

argument are revealing. Quoting anthropologist Keane’s Man: Past and Present, the

court referred to a passage on the Caucasian race: “[W]e recognize a common racial

stamp in the facial expression, the structure of the hair, partly also the bodily

proportions. . . . Even in the case of certain black or very dark races . . . we are

reminded instinctively more of Europeans or Berbers . . . thanks to their more regular

features and brighter expression.” Skin color, according to the court’s own ruling in

Ozawa, was not legible as a test of whiteness. Here, they suggest via the footnote

that “features” and “expression” were likewise illegible. Yet, the court also suggests

that bodily racial difference is easily recognizable or distinguishable: “[T]he physical

group characteristics of the Hindus render them readily distinguishable from the

various groups of persons in this country commonly recognized as white.” (my

emphases) Although the children of Hindu parents might well have a “common racial



stamp” in features, and Ozawa had recognized the illegibility of skin color, the court

insisted on some “readily distinguishable” physical characteristics that they declined

to specify. The argument about European Americans was also specious, considering

the popular debate that raged at this time about inferior European races and their

predetermined physical and intellectual characteristics. Whiteness became, as Ian

Haney-López states, “a social product measurable” not by the anthropologist’s

calipers but “only in terms of what people believe,” something “self-evident.” 17


With racial appearance accepted as a universal metric, it was inevitable that

individuals would try to elude the spirit of the law. In 1926, only three years after the

Thind case and Brice’s surgery, the New York Times reported that a Japanese

American man from Boston had plastic surgery to render himself acceptable to his

white Iowan girlfriend’s parents. Shima Kito “put himself in the hands of a surgeon.

The latter cut the eye corners so that the slant-eye so characteristic of the Japanese

race was gone. He lowered the skin and flesh of the nose so that the upturned trait

disappeared, and he tightened the pendulous lower lip.” This was deemed an

“example of the use of plastic surgery to obliterate racial characteristics” (my

emphasis), which was finished by changing his name to William White. 18

Kito did not

bother with Brice’s disclaimers that she was not trying to erase her Jewishness; it

seemed his concern to obliterate his Japaneseness as thoroughly as possible, if only

to satisfy his prospective in-laws. 19

Nevertheless, the timing of Kito’s surgery

suggests that he may have been an earlier version of Korematsu in terms of

attempting to escape the legalization of discrimination against Japanese Americans,

thus making his choice imperative. The Cable Act of 1922 specified that female US

citizens who married aliens eligible for citizenship would retain their US citizenship,

implicitly barring (at the risk of losing one’s citizenship) marriage to Asian aliens, who

were ineligible. Kito’s marriage would certainly have fallen into the latter category, so

his surgery functioned as both a means to obtain parental approval as well as the

ability to pass as a “white” American citizen (which also allowed his wife to retain her

citizenship). At the time, the idea of using surgery to undergird passing for Asians

raised few legal fears. Instead, it was presented as a human interest story, with a man

willing to change his race for love. However, no such presentation was possible for

Korematsu after Pearl Harbor.

Newspapers of the era mention Korematsu’s attempt to pass as a “Spaniard”

or “Spanish-Hawaiian,” some even calling him a “Jap spy.” Looking at photographs

of Korematsu before and after his surgery, it is hard to imagine him being identified

as of anything but (at the very least) East Asian descent, but he did succeed in

“passing” as a safe ethnicity for long enough to make the media and the FBI

nervous. 20

FBI agents found the doctor and interrogated him about Korematsu’s

surgery, which had cost $125. Masten, who had not done anything actionable,

claimed that he had told Korematsu “that he could build up his nose and remove the

folds from the inner corner of his upper eyelids but that he could not make the

subject look like an American” (i.e., white). 21

The phrasing may have been the



agents,’ or it may have been Masten’s own, but the government was reassured here

that no Japanese could be made to look “American”—or for that matter that any

Japanese American could look authentically American to begin with, a feeling that

Korematsu still echoed in 1983.

Instead, Korematsu was left with the tell-tale scars that first raised questions

of plastic surgery. The FBI’s initial report included under “scars or marks”: “Cut scar

on the forehead, lump between eyebrows on nose.” The mutilated flesh betrayed

Korematsu’s attempt. Korematsu’s 1990 account of his original motivation for

getting the surgery conflicts with his girlfriend’s statements to the FBI. She claimed

that she had tried to talk him out of it, worried that he would get in trouble.

According to Korematsu, it was originally her idea. He told the doctor that he feared

racism if he married his Caucasian girlfriend. Masten took some skin from around his

eyes, and “that was it,” Korematsu said. As Korematsu himself observed in federal

court, evoking laughter, “I don’t think he made any change in my appearance for

when I went to the Tanforan Assembly Center everyone knew me and my folks didn’t

know the difference.” 22

Thus, Korematsu’s attempt at passing through racial

performance was not effective. Moreover, his failed attempt also raises the specter

of medical ethics—in this case, the possibility that white doctors may have exploited

the fears (and wallets) of Asians by surgically promising at least another type of


Korematsu, like the individuals involved in many other civil rights test cases,

was chosen by the ACLU because he was a “safe” option: he did not perform the

usual elements of “Japaneseness” (or Japanese immigrant identity) that might

trouble a jury—he never lived in Japan, did not speak Japanese, did not work in a

Japanese-owned business, and was an American patriot. It was Korematsu’s last step

of altering the Japanese body that exploded the concept of, as the ACLU’s

Commonweal magazine phrased it, “racial visibility.” 23

After all, successful passing

created paranoia in 1940s America, as coverage of Korematsu in the days after his

arrest convey. As it happens, he was not a “Jap spy,” but his motivation was indeed

to pass as white for social reasons. Becoming American, his plastic surgeon

confidently said, was impossible. If his goal was to pass merely as non-Japanese,

clearly it would have been more easily achieved by passing as say, Chinese. However,

even this was potentially risky. In 1942, The New York Times reported incidents of

racial confusion, in which ethnic Chinese (their ethnic group/s were not specified)

fishermen were arrested but “released on submitting proof that they were Chinese.”

However, a forty-two-year old Javanese sailor was shot and killed when he failed to

respond to a sentry; his captain said afterward that the sailor and his companions,

who were released after questioning, did not understand English. Consequently Time

magazine, in an article on identification, praised a Chinese American reporter who

wore a self-identifying label. 24


Beyond these hazards, other Asian ethnicities were also circumscribed by the

laws against miscegenation, which were part of Korematsu’s concerns. Korematsu



had to claim at least as much whiteness as his Italian American girlfriend. With the

odd choice of “Spanish-Hawaiian,” which he opted for on his draft card, Korematsu

showed a keen understanding of racial status and hierarchy, picking a label claiming a

dark-skinned whiteness (Spanish) and a definite American origin (Hawai’i). Moreover,

by tacking on a hyphen and Hawai’i, he added an element of outsiderness which

would account for his phenotype yet render him, believably, an “exotic American.” It

added a touch of racial ambiguity just in case he did not look “Spanish,” and provided

him access to a land (Hawai’i) with different racial rules, where most Japanese

Americans were not incarcerated and native Hawai’ians were entirely

unimpeachable. “Spanish-Hawaiian,” an unusual combination, covered all the bodily

differences and the social needs that Korematsu exhibited in wartime, appealing to a

very modern ideal of racial diversity and hybridity.

What becomes strikingly apparent when examining Korematsu’s court

documents, however, is both how essential and how difficult it is for a court of law to

deal with the appearance of the racialized body. Both the popular and the

investigative coverage of Korematsu’s plastic surgery remained a technically

irrelevant but enduringly fascinating detail in his legal battles, from his initial court

case through to the Supreme Court documents. He was at perfect liberty to do

whatever he liked to his face while Japanese Americans were still allowed on the

coast. The ACLU was well aware of his plastic surgery, but in their focus on

downplaying connections to Japan, perhaps failed to consider the deeper meaning of

bodily inscriptions of race. Following the usual practice of trying to find the most

acceptable test subjects for civil rights cases, famed ACLU director Roger Baldwin

asked investigator Besig to emphasize Korematsu’s “attitude, background,

connections and patriotism.” Besig, who had been aggressively recruiting test case

subjects, replied carefully that there was “nothing in the facts to jeopardize our

chances of success.” In the interpretation of the facts, however, there was abundant

opportunity for speculation. 25


The official wartime newspaper of the Japanese American Citizens League,

the Pacific Citizen, usually referred to Korematsu as a shipyard worker and

prominently mentioned that “he was discharged from Moore’s shipyard in Oakland in

January [1942] because of his race.” An article on his federal court case also reported

that “Korematsu, when asked, replied that he was ready and willing to bear arms for

the United States. He said that he tried to enlist in the US army [other reports said

the Coast Guard] but was turned down because of physical disability.” As a

counterpoint to this narrative of unimpeachable patriotism, the article concludes,

“The government had charged that Korematsu had undergone plastic surgery in an

attempt to alter his features.” 26

Mentioning the most lurid feature of the case does

not treat the plastic surgery as a proven but irrelevant fact, but instead adds it to the

list of Korematsu’s supposed crimes. Given the generally supportive tone of the

Pacific Citizen articles about the test cases, this line stands out as an implicit denial of

the “charge;” the plastic surgery was mentioned in several of the local newspapers’



coverage of the case, though as a notable fact rather than a charge. Official channels

were well aware that the questions of appearance and plastic surgery were central to

the apparent guilt of the Japanese, regardless of any government claims to the


The debate over Korematsu’s plastic surgery stemmed from the government’s

confused rhetoric about the forcible removal of the Japanese Americans, namely that

it was not a racially motivated decision, yet predicated on appearance. Initial fears

ostensibly rested on affiliation with an enemy country and culture. The Kibei,

Japanese Americans born in the US but educated in Japan, were particularly suspect.

Shintoism came under attack, as well as Japanese language schools, judo, and other

vestiges of Japaneseness. General DeWitt famously said, “A Jap’s a Jap,” as Justice

Robert H. Jackson quoted in his Korematsu dissent, but this certainty was refuted by

the intense scrutiny of community and organization leaders who might be more

guilty than others. Many members of the public, and certainly the courts, eventually

adopted the more moderate view that many, if not all, Japanese Americans were

unimpeachably loyal. Nevertheless, they all had to be incarcerated.

Inability to distinguish among Japanese led to fears that spies could easily

hide among them if the “good” citizens were free to stay. The US Attorney General

office’s memorandum “The Japanese Situation on the West Coast,” prepared by

three lawyers, stated, “Since the Occidental eye cannot readily distinguish one

Japanese resident from another, effective surveillance of the movements of

particular Japanese residents suspected of disloyalty is extremely difficult if not

practically impossible,” whereas “the normal Caucasian countenances of [persons of

German or Italian stock] enable the average American to recognize particular

individuals by distinguishing minor facial characteristics.” In other words, they were

being incarcerated because the way they looked was deemed illegible (i.e., “they all

looked the same”). 27


Denman’s focus on appearance in his appellate opinion takes this racist turn.

He cites appearance as justification for the military necessity of “discriminating

cruelty” (his own term in the Hirabayashi case) against the Japanese: “Because of . . .

limitations 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 . . . suspected saboteurs or spies. . . . Also the difficulty of identification of

Japanese of known or suspected enemy aid, by descriptions telegraphed or written

to white enforcement offices.” Denman admits the social construction of the

concept that “all Chinks and Japs look alike,” but treats it as a reality that must be

dealt with. His logic implies that all Chinese Americans might as well have been

incarcerated too, along with perhaps other Asian Americans and similar-looking

ethnic minorities. All were equally visible and yet illegible, making it too difficult to

“pick out” spies. This casts a different light on Denman’s analysis of Korematsu’s



surgery, which he calls “pathetic,” positioning the facial alteration as a strategy that

impedes the identification of “saboteurs or spies.” In this sense, Korematsu’s surgery

may have had a very real effect on the legal decisions and their grounds. However,

the constitutionality of the law was difficult for some of the judges to divorce from

“wartime necessity,” and Korematsu’s unfortunate attempt at “passing” highlighted

the possibility of “spies among us” and exacerbated the necessity for incarceration. 28


In the end, none of the Supreme Court justices referred to Korematsu’s

surgery or girlfriend in their opinions, mentioning only that he, “according to the

uncontradicted evidence, is a loyal citizen of the nation.” Frank Murphy’s dissent

does not even mention Korematsu by name or situation, addressing the racism of the

incarceration as a whole. Nevertheless, the justices were demonstrably aware of the

language around Japanese appearance as well as Korematsu’s attempt to pass. The

petition for certiorari (to be heard by a higher court) read, “The violation was

intentional. Petitioner had changed his name, undergone an operation to conceal his

facial characteristics, and wanted to remain in Calif. long enough to earn sufficient

money to take his girl to the Middle West.” A similar certoriari document in Justice

Robert H. Jackson’s papers bears his hand underscoring: “The violation was

committed knowingly, and P. had changed his name and undergone a facial operation

in an effort to conceal his racial characteristics.” This document also bears Jackson’s

notes about the justices’ initial conference votes on the case, which confirms that

they all were well aware of the surgery—and perhaps as intrigued as Jackson was,

judging from his underscoring. 29


The Stone Court, which decided all three incarceration cases and practically

coincided with the American participation in WWII, is remembered as a liberal yet

bitterly divided court—divided in spite of the fact that Franklin D. Roosevelt had

nominated seven of the nine justices on the bench at the time of Korematsu. Hugo L.

Black, the Korematsu opinion author, is remembered otherwise as a defender of

legislative authority, racial equality, and individual rights who had to overcome a

storm of publicity about his brief membership in the Ku Klux Klan to be confirmed.

Black often voted with William O. Douglas, Wiley Rutledge, and the Court’s most

famous liberal, Frank Murphy. However, Murphy had foreseen that the

disagreements in the court would come to a head over the three test cases, writing

to his clerk, “Read this and perish! The Court has blown up on the Jap case—just [as]

I expected it would.” 30


Korematsu indeed blew up the court, which had voted unanimously but with

some separate opinions on the constitutionality of targeted curfews in the earlier

Hirabayashi and Yasui test cases. In successive drafts, Black’s opinion for the court

moves progressively further away from addressing the charge of racism so incisively

laid out in Murphy’s and Jackson’s dissents. In an early draft, Black wrote:

It would be idle to deny that the course of American life

and thought has been increasingly polluted by the warped



psychology of race hatred. This has been but a reflection of

the witch’s brew that has lately been served up abroad. But

the instant case poses no problem of “concentration

camps.” 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. . . . In any event, it helps

but little to clarify matters to succumb to the luxury of the

imagery of words like “concentration camps.” It helps even

less to invoke the term “racial prejudice.” It would be a

superfluous gloss on the history of this Court to condemn

the bigotry that springs from an exalted sense of race. To

cast this case into the outlines of racial prejudice merely

confuses the issue.31


Here, Black charged into the issue of racism head-on, being most exercised about the

term “concentration camp.” His anxiety about its “ugly connotations” reveals that

he has a sense of its reality, yet he admits to ignoring the “true nature” of the camps.

Nevertheless, he found little satisfaction, apparently, in his admission that racism

existed, since his only move was to deny its applicability. The final version of his

opinion omitted his discussion of the “witch’s brew” of racism and much of the

discussion of “racial prejudice,” pausing chiefly to disparage the term “concentration


Though Jackson’s dissent carefully addresses his respect for military necessity,

he refuses to uphold an order he finds unconstitutional: “A citizen’s presence in the

locality, however, was made a crime only if his parents were of Japanese birth. Had

Korematsu been one of four—the others being, say, a German alien enemy, an Italian

alien enemy, and a citizen of American-born ancestors, convicted of treason but out

on parole—only Korematsu’s presence would have violated the order. The difference

. . . only in that he was born of different racial stock.” Jackson emphasized that

Japanese Americans were indeed singled out by race. Moreover, a possible reference

to Korematsu’s surgery appears when Jackson notes that “this prisoner is the son of

parents as to whom he had no choice, and belongs to a race from which there is no

way to resign.” Indeed, Korematsu would seem to have exhausted the logical

options for such a resignation.

In drafts, Black had written that Korematsu had “moved from his home to

another place in Oakland” and had had “an operation on his face to change his facial

expression”—later revised to “change his facial appearance”—“[to] conceal his

identity as a person of Japanese ancestry.” 32

This language disappeared, along with

his references to Korematsu’s Italian girlfriend and desire to move to the “Middle

West.” However, the opinion still quietly makes reference to the problems of

illegibility: “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.” A

shortness of time implies an inability to sort out the disloyal from the loyal, and

according to the military’s own logic, much of this was due to appearance. 33


Owen Roberts’ and Frank Murphy’s dissents maintain that the sorting had to

happen, regardless of time: “No adequate reason [my emphasis] is given for the

failure to treat these Japanese Americans on an individual basis. . . . It is asserted

merely that the loyalties of this group ‘were unknown and time was of the essence.’”

Once again, we see a reference to the difficulty of sorting out the innocent from the

guilty, when it was so much faster and easier to assume, as General DeWitt’s report

does, that they all belonged to an “enemy race.” When Roberts refers to the lack of

an “adequate” reason, he refers to this assumption, inclusive of the logic that sorting

them out would take too long, which in itself was at least partly predicated on the

illegibility of appearance. A 1967 interview with Black reveals how important this

issue remained in his memory. “They all look alike to a person not a Jap,” he said,

adding, “A lot of innocent Japanese Americans would have been shot” if Japan had

attacked. These debates show the primacy of racialized appearance, though its

acknowledgment at the federal level would inevitably have, in Black’s words, cast the

case into the outlines of racial prejudice. Despite its excision from the opinion,

neither the justices’ nor Korematsu’s experiences were free of the frenzy concerning

appearance. 34


Korematsu’s transformation into hero has hidden not only the turbulent

history of his surgery but the enduring legacy of his Supreme Court loss. Black wrote

in his opinion 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.” More recently, in his memoirs former Chief Justice William Rehnquist

controversially upheld the Korematsu case as an illustration of deferring to military

authority in time of war. Thus, regardless of the success of the 1983 appeal and

Korematsu’s Presidential Medal, the Korematsu decision still stands, technically

available to be used as legal precedent for racism in times of “necessity. What cannot

be overlooked, however, is that Korematsu’s attempt at passing cut to one of the

central legal and racial issues of the incarceration. Trying to pass as not-Japanese and

perhaps as white, he exposed the tenuous definition of racialized appearance that

the military insisted was part of the necessity for incarceration. Theoretically, his

plastic surgery was the ultimate attempt to pass, but it provoked controversy

because of the fear that it could succeed. Korematsu had gone too far.

The binary framing of race and nationality on the body was a gross

oversimplification of identity formation for Japanese American individuals and the

international framework within which incarceration functioned, then and now,

making Korematsu rightly a figurehead not just for civil rights, but also for

international affairs. Wong’s work pushes us, among other things, to understand

Asian American studies in its global circulation, 35

and the study of incarceration has



increasingly moved in this direction—with the diversity and international scope of

the Japanese American incarceration, and its comparison to other incarcerations

such as Guantánamo, and the post-9/11 US discussion of illegal immigration,

citizenship, and airport security. 36

It is likewise important for modern considerations

of cosmetic surgery and other contested sites of identity construction to include the

geopolitical events and legalized discrimination that pushes individuals toward their

supposedly “aesthetic” or “strategic” economic choices. Across all these complex

issues is the constant of the “questionably identifiable racial other.” The racialized

body’s appearance in the courts and the media, gradually filtered out as the stakes of

constitutional review and racial profiling grew more intense, remains an important

part of the logic of the Korematsu decision as well as the legal history behind it. The

intervening time has done little to further develop this logic. For all the modern

discussion of how race is a difference scarcely worth mentioning in our genetics, the

body of the other is still a point of contention within the American legal system.



1 The mention of Korematsu’s specific disability is found in Ernest Besig, Letter from

Ernest Besig to Roger Baldwin, American Civil Liberties Union Archives, Princeton, NJ.

Most of the other biographical information is available in a variety of sources, including

Of Civil Wrongs & Rights: The Fred Korematsu Story, dir. Eric Paul Fournier, National Asian

American Telecommunications Association, 2000.

2 “How to Tell Your Friends from the Japs,” Time, December 22, 1941. “How to Tell Japs

from the Chinese,” Life, December 22, 1944.

3 On May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34, ordering all

people of Japanese ancestry (whether citizens or non-citizens) still living in California’s

Military Area No. 1, to report to assembly centers where they would live until moved to

“Relocation Centers” (i.e., incarceration camps).

4 Peter Irons, Justice at War (New York: Oxford University Press, 1983), 97. For more

information on Korematsu, see, for example, Franklin Odo, ed., The Columbia

Documentary History of the Asian American Experience (New York: Columbia University

Press, 2002) 306; Howard Ball, “Judicial Parsimony and Military Necessity,” in Japanese

Americans, from Relocation to Redress, eds. Roger Daniels, Sandra C. Taylor and Harry H.L.

Kitano (Salt Lake City, UT: University of Utah Press, 1986), 179; “Korematsu v. United

States,” Japanese American History: An A-to-Z Reference from 1868 to the Present, ed.

Brian Niiya (New York: Facts on File, 1993) 209; Sucheng Chan, Asian Americans: An

Interpretive History (New York: Twayne, 1991), 136.

5 Sau-ling Cynthia Wong, Reading Asian American Literature: From Necessity to

Extravagance (Princeton, NJ: Princeton University Press, 1993), 13, 121.



6 Viet Thanh Nguyen, Race & Resistance: Literature & Politics in Asian America (Oxford, UK:

Oxford University Press, 2002), 35. Leslie Bow, Betrayal and Other Acts of Subversion:

Feminism, Sexual Politics, Asian American Women’s Literature (Princeton, NJ: Princeton

University Press, 2001).

7 Sander L. Gilman, Making the Body Beautiful: A Cultural History of Aesthetic Surgery

(Princeton, NJ: Princeton University Press, 1999), 136.

8 Elizabeth Haiken, Venus Envy: A History of Cosmetic Surgery (Baltimore, MD: Johns

Hopkins University Press, 1997), 186, 82, 77.

9 See Chapter Three, “Written on the Face,” in David Palumbo-Liu, Asian/American:

Historical Crossings of a Racial Frontier (Stanford, CA: Stanford University Press, 1999) and

Eugenia Kaw, “Medicalization of Racial Features: Asian American Women and Cosmetic

Surgery.” Medical Anthropology Quarterly 7.1 (1993): 75.

10 Traise Yamamoto, Masking Selves, Making Subjects: Japanese American Women, Identity,

and the Body (Berkeley, CA: University of California Press, 1999) 95-99.

11 Leslie Bow, Partly Colored: Asian American and Racial Anomaly in the Segregated South

(New York: New York University Press, 2010), 207.

12 Gayle Wald, Crossing the Line: Racial Passing in Twentieth-Century US Literature and

Culture (Durham, NC: Duke University Press, 2000), 118; Rebecca Chiyoko King-O’Riain,

Pure Beauty: Judging Race in Japanese American Beauty Pageants (Minneapolis, MN:

University of Minnesota Press, 2006); David Yoo, Growing Up Nisei: Race, Generation, and

Culture among Japanese Americans of California, 1924-1949 (Urbana, IL: University of

Illinois Press, 2000), 164-166.

13 Toyosaburo Korematsu v. United States. 140 F.2d 289. United States Court of Appeals

for the Ninth Circuit, 1943.

14 Erika Lee, At America’s Gates: The Exclusion Era, 1882-1943 (Chapel Hill, NC: The

University of North Carolina Press, 2003), 105.

15 Ibid., 161.

16 Takao Ozawa v. United States. 260 U.S. 178. Supreme Court of the United States, 1922.

17 United States v. Bhagat Singh Thind. 261 U.S. 204. Supreme Court of the United States,

1923. Ian Haney-López, White by Law: The Legal Construction of Race (New York: New

York University Press, 2006), 79-80.

18 “Changes Racial Features: Young Japanese Wins American Bride by Resort to Plastic

Surgery,” The New York Times, March 8, 1926.

19 Haiken, Venus Envy, 130, 201.



20 “Internment Upheld,” News, September 2, 1942. “Jap Shifted to Jail Here,” Examiner,

June 23, 1942. Other newspaper clippings are shown briefly in Of Civil Wrongs & Rights,

dir. Fournier. Besig, Letter from Ernest Besig to Roger Baldwin.

21 Irons, Justice at War, 96.

22 Ibid., 153. Of Civil Wrongs & Rights, dir. Fournier.

23 “In the Supreme Court,” The Commonweal, March 10, 1944.

24 Lawrence E. Davies, “California to Keep Japanese Farming,” The New York Times,

January 9, 1942.

25 Irons, Justice at War, 118. Besig, Letter from Ernest Besig to Roger Baldwin, June 10,


26 “Evacuation Legality Will Be Tested in San Francisco Case,” Pacific Citizen, June 11, 1942.

“Federal Court Convicts Nisei in Test Case,” Pacific Citizen, September 17, 1942.

27 Irons, Justice at War, 54.

28 Toyosaburo Korematsu v. United States.

29 O.T., 1932 No. 22, Korematsu v. US, William O. Douglas Papers, Library of Congress,

Washington, DC. No. 679 Korematsu v. United States Cert. To Cca 9, Robert Houghwout

Jackson Papers, Library of Congress, Washington, DC.

30 The Korematsu justices were, in order of appointment: Chief Justice Harlan Stone,

Owen Roberts, Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Frank

Murphy, Robert Jackson, and Wiley Rutledge. Many books have been written about the

court, the most recent of which is Noah Feldman’s Scorpions: The Battles and Triumphs of

FDR’s Great Supreme Court Justices (New York: Twelve, 2010). Other useful references

include William Domnarski, The Great Justices, 1941-1954: Black, Douglas, Frankfurter &

Jackson in Chambers (Ann Arbor, MI: The University of Michigan Press, 2006) and Howard

Ball, Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996).

Murphy’s note is in his papers (Frank Murphy, “Gene–Read This…,” Frank Murphy

Papers, Ann Arbor, MI.)

31 Hugo LaFayette Black, “It Would Be Idle to Deny…,” Hugo LaFayette Black Papers,

Library of Congress, Washington, DC. For ease of reading, I have reproduced this

incorporating his handwritten corrections on a typed draft fragment.

32 Black, “The Petitioner, Born June 30, 1919…,” 2. Black, Untitled Draft of Korematsu

Opinion, 5. Both in Hugo LaFayette Black Papers, Library of Congress, Washington, DC.

33 Korematsu v. United States. 323 U.S. 214. Supreme Court of the United States, 1944.

34 Korematsu v. United States. Feldman points out in Scorpions that the Court may have

expected Korematsu and Endo to form a dual legacy, but the violation of rights in




Korematsu has been the lasting impression. For Black’s comments, see “Justice Black,

Champion of Civil Liberties for 34 Years on Court, Dies at 85,” The New York Times,

September 26, 1971.

35 Sau-ling Cynthia Wong, “Keynote Lecture: Maxine Hong Kingston in a Global Frame:

Reception, Institutional Mediation, and ‘World Literature.’” AALA Journal 11 (2005).

36 Elbert Lin, “Korematsu Continued…” Yale Law Journal 112.7 (2003) and Roger Daniels,

“The Japanese American Cases, 1942-2004: A Social History.” Law and Contemporary

Problems 68.2 (2005).

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