Takahashi v. Fish and Game Commission Motion and Brief Amici Curiae

    IN THE

dttprme ©Hurt of the Ittitefc States
October Term, 1947

No. 533

TORAO TAKAHASHI, 

v.
Petitioner,

FISH AND GAME COMMISSION, LEE F. PAYNE, as 
Chairman thereof, W. B. WILLIAMS, HARVEY E. 
HASTAIN, and WILLIAM SILVA, as members thereof.

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE AND THE NATIONAL 

LAWYERS GUILD AS AMICI CURIAE.

T hurgood M arshall,
Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M arian W v x x  P erry,

Counsel for National Lawyers 
Guild.

E dward R. D udley,
Of Counsel.



I N D E X

Motion for Leave to File Brief as Amici Curiae______  1

B rief:
Opinion B elow _____________ .1____________________  3
Statute Involved _________________________________ 3
Questions Presented_____________________________  4
Statement of the C ase___________________________  4
Summary of Argument __________________________  5
Argument :

I Since there is no rational basis for the discrim­
ination embodied in the statute, it comes into 
fatal conflict with the Fourteenth Amendment 6

II State legislation excluding aliens from the right 
to work is an interference with the national 
sovereignty __________________________________ 9
A. The legislation here presented is an attempt

to exclude a class of aliens from residing in 
the state__________________________________  9

B. The right to exclude aliens is vested solely in
the Federal Government__________________ 11

III A state law denying to a racial group the right 
to engage in a common occupation violates the 
obligations of the United States under the 
United Nations Charter______________________  14

Conclusion_____________________________________ — - — 18

PAGE



11

Table of Cases

AUgeyer v. Louisiana, 165 U. S. 578----------- ---—--------- 15

Baldwin v. G. A. F. Seelig, 294 U. S. 511--------------------  13
Buchanan v. Warley, 245 IJ. S. 60— ---------------- ---------  7

Chinese Exclusion Case, 130 U. S. 581--- ---------------------- 11

Edwards v. California, 314 U. S. 160-------------------- --- 13
Estate of Tetsubumi, 188 Cal. 645--------------------------- -~ 10

Missouri ex rel. Gaines v. Canada, 305 U. S. 337---------  7

Nixon v. Herndon, 273 U. S. 536---------------------------------- 7

Oyama v. California, 16 Law Week, 4108------------------10,17

Slaughter House Cases, 83 U. S. 36--------------------------  11
Steele v. Louisville & N. R. R. Co., 323 U. S. 192— —̂  15

Truax v. Raich, 239 U. S. 33-----------------------------9,10,12,15

U. S. v. Curtiss Wright, 299 U. S. 304-------------------------  10

Yick Wo v. Hopkins, 118 IJ. S. 356------------------------------  6
Yu Cong Eng v. Trinidad, 271 IJ. S. 500--------------------- 7

PAGE!



I l l

Authorities Cited.

Aylsworth, “ The Passing of Alien Suffrage” , Am. Pol.
Sci. Rev. X X V  (1931) 114 _______________________  11

Corwin, The Constitution and World Government-------  11

Pinal Report, FEPC, June 28, 1946 ---------------------------  16

Hyde, International Law (2d ed.) _____________ _____  11

Iehihashi, “ Japanese in the United States” __________  16

Konvitz, The Alien and the Asiatic in American Law___ 11

McGovney, “ Anti-Japanese Land Laws” , 35 Cal. Law 
Rev. 7, 5 1 ________________________________________  10

State Dept. Publications 2274, European Series, “ Mak­
ing the Peace Treaties”  ______ ._______________1—  15

4 State Dept. Bulletin 347-451 ______________________  15

16 State Dept. Bulletin 1077, 1080, 1082______________  15

United Nations Charter, Articles 55 and 56__________  14
United States Census, 1940, “ Characteristics of the 

Non-White Population”  _________________________ 6,14

World Peace Foundation, Documents on Foreign Policy,
Vol. I, 1938-39 ___________________________________  15

PAGE



ITT THE

i>ttprnttr (tort 0! %  Itutrfc Itorn
October Term, 1947

No. 533

T orao T ak ah ash i,
Petitioner, 

v.

F ish  and G am e  C omm ission , L ee F . 
P ayne , as Chairman thereof, W. B. 
W illiam s , H arvey E. H astain , and 
W illiam  S ilva, as members thereof.

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE AND THE NATIONAL 

LAWYERS GUILD AS AMICI CURIAE.

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE.

To the Honorable the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United States:

The undersigned, as counsel for and on behalf of the 
National Association for the Advancement of Colored 
People, and the National Lawyers Guild, respectfully move 
that this Honorable Court grant them leave to file the ac­
company brief as amici curiae.



2

The issue at stake in the above entitled cause is the 
power of a state to discriminate on racial grounds among 
persons within its jurisdiction in their exercise of the right 
to earn a living in a common occupation. The determina­
tion of this issue involves an interpretation of the Four­
teenth Amendment which will have widespead effect upon 
the welfare of all minority groups in the United States.

Consent of the parties for the filing of this brief has 
been obtained for the National Lawyers Guild and has been 
requested for the NAACP and will be filed as soon as re­
ceived.

T hubgood M arshall ,
Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M arian  W y n n  P erry,
Counsel for National Lawyers 
Guild.

E dward R . D udley,
Of Counsel.



IN  THE

Bnpvmxt CEmtrt of tho Intteft States
October Term, 1947

No. 533

T oeao T a k a h a sh i,
Petitioner,

v.

F ish  and Gam e  Comm ission , L ee F . 
P ayne , as Chairman thereof, W. B. 
W illiam s , H arvey E. H astain , and 
W illiam  S ilva , as members thereof.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE AND 
NATIONAL LAWYERS GUILD AS AMICI CURIAE.

Opinion Below.

Statute Involved.

The opinion below and the statute involved are set forth 
in full in the record and in the Petition for Certiorari filed 
herein.

3



4

Questions Presented,

1. Whether a statute of the State of California 
denying to aliens ineligible to citizenship the right to 
earn their living by commercial fishing is consistent 
with the Fourteenth Amendment.

2. Whether such statute is an interference with 
the supremacy of the Federal government in the field 
of international law and in conflict with treaty obliga­
tions of the United States.

Statement of the Case.
The petitioner herein is a citizen of Japan who, under 

the naturalization laws of the Federal government, is 
presently ineligible to citizenship. He has resided in Los 
Angeles, California, continuously since 1907 with the ex­
ception of that period of time when he was excluded from 
California under the Military Exclusion laws adopted dur­
ing World War II. From 1915 until the Military Exclusion 
laws petitioner earned his living by commercial fishing on 
the high seas off California, which activity was carried on 
pursuant to a license granted by the Fish and Game Com­
mission of the State of California (B. 1-6).

In 1945, just prior to the restoration of freedom of 
movement to Japanese aliens who had been excluded from 
California, the state legislature amended Section 990 of 
the Fish and Game Code (California Stats. 1945, Ch. 181) 
to prohibit the issuance of a commercial fishing license to 
persons ineligible to citizenship or to corporations the 
majority of whose stockholders, or any of whose officers, 
were ineligible to citizenship. Upon the face of the stat­
ute, no other criterion is applied for the issuance of such 
licenses.



5

Upon petitioner’s return to California in October, 1945, 
he found himself, in the last years of his life, excluded 
from employment as a commercial fisherman after almost 
thirty years of gainful employment in that field.

The court of original jurisdiction, the Superior Court 
of the State of California, in and for the County of Los 
Angeles, found that this statutory restriction was unconsti­
tutional and granted a writ of mandamus (R. 7). On ap­
peal to the Supreme Court of California, the judgment of 
the lower court was reversed and the constitutionality of 
the statute was upheld (R. 30-45). Three judges dissented 
from this holding. The decision of the Supreme Court of 
California is now before this Court on writ of certiorari.

SUMMARY OF ARGUMENT.

I.
Since there is no rational basis for the discrimina­

tion embodied in the statute, it comes into fatal conflict 
with the Fourteenth Amendment.

II.
State legislation excluding aliens from the right to 

work is an interference with the national sovereignty.
A. The legislation here presented is an attempt to

exclude a class of aliens from residing in the state.
B. The right to exclude aliens is vested solely in the

Federal Government.

III.
A  state law denying to a racial group the right to 

engage in a common occupation violates the obliga­
tions of the United States under the United Nations 
Charter.



6

A R G U M E N T .

I.

Since there is no rational basis for the discrimina­
tion embodied in the statute, it comes into fatal conflict 
with the Fourteenth Amendment.

That this legislation is directed at Japanese aliens is 
conclusively proven by the 1940 Census figures which show 
33,569 Japanese ineligible to citizenship residing in Cali­
fornia and fewer than 900 others in the entire continental 
United States.

Since the adoption of the Fourteenth Amendment this 
Court has been vigilant in assuring that legislative classi­
fication of persons resulting in discrimination should bear 
a reasonable relationship to the achievement of legitimate 
ends of government. In a long line of decisions legislation 
has been declared unconstitutional were classification has 
been based on race alone.

Considering an ordinance fair on its face, hut in practice 
discriminatory against the Chinese, this Court said of the 
discrimination:

“ No reason for it is shown and the conclusion 
cannot be resisted that no reason for it exists except 
hostility to the race and nationality to which peti­
tioners belong, and which in the eye of the law is un­
justified. ’ ’ 1

Of similar classification Mr. Justice H olmes speaking 
for this Court said:

“ States may do a great deal of classifying that 
it is difficult to believe rational but there are limits,

1 Yick W o  v. Hopkins, 118 U. S. 356, 374.



7

and it is . . . clear . . . that color cannot be made the 
basis of statutory classification. ’ ’ 2

The' Supreme Court of California justified this legisla­
tion as based upon “ the broad powers resting in the state 
in regard to the regulation of its fish and game”  (R. 38). 
In the exercise of that power the court said:

“ Obviously if the legislature determines that 
some reduction in the number of persons eligible to 
hunt and fish is desirable, it is logical and fair that 
aliens ineligible to citizenship shall be the first group 
to be denied the privilege of doing so”  (R. 38).

Even assuming, arguendo, as the petitioners do not con­
cede, that these fish are the “ property”  of the state, the 
issue remains whether the state may condition the grant­
ing of licenses solely upon the race of the applicant, with­
out establishing any relationship between the object to be 
attained, presumably conservation, and the proscribed 
group.

The criticism of this theory put forth as fair and logical 
which was made by the dissenting opinion completely ex­
poses its lack of logic:

“ I can see no logic in depriving resident aliens, 
even though they are not eligible to citizenship, of 
the means of making a livelihood, including the pur­
suit of commercial fishing. They are lawfully in­
habitants and residents of the state. Even if it be 
assumed that non residents, both alien and citizens 
of the United States, may be excluded from game 
and fish on the theory that such resources belong to 
the people of the state, the fact remains that resident 
aliens are a part of the people—the inhabitants and

2 Nixon v. Herndon, 273 U. S. 536, 541; See also Buchanan v. 
Warley, 245 U. S. 60; Missouri ex rel. Gaines v. Canada, 305 U. S. 
337; Yu Cong Eng v. Trinidad, 271 U. S. 500.



8

residents of this state. Because some believe that 
aliens should be punished by such a penalty is no 
basis for a reasonable classification. There is no 
sound basis for the argument that because the fish 
and game belong to the people of the state, the tak­
ing of them may be prohibited to all, and that with 
such a broad power any group of people may be ar­
bitrarily excluded from the right to take any por­
tion thereof. On the basis of that reasoning the 
Legislature could validly prohibit persons ineligible 
to citizenship from using the highways. They be­
long to the state and the traffic hazards would be less 
if fewer people were using them. The same is true 
of the use of the parks, schools and other public 
buildings and places. It could be argued that they 
are over-crowded and the more people using them 
the greater the cost to the public, all to the diminish- 
ment of the resources of the state natural or other­
wise. While the state may withhold a privilege if 
it elects not to grant it, it cannot arbitrarily prevent 
any member of the public from exercising it while 
granting such privilege to others. To conclude 
otherwise would deprive the equal protection prin­
ciple of all meaning”  (R. 49).

The complete lack of reasonableness of the legislation 
becomes apparent when one looks to the end which is sup­
posed to be accomplished. There is no limit fixed on the 
number of licenses which may be issued, nor does the state 
limit the number of fish to be taken or the period during 
which fish may be taken. No limits of the size of nets or 
the equipment used in commercial fishing are established. 
The licenses are not limited to residents of the state, but 
persons from throughout the entire country may flock to 
California, to get licenses and fish without restriction in the 
coastal waters. For every 100 aliens ineligible to citizen­
ship who are denied commercial fishing licenses, 500 new 
licensees may come in from every other state or country,



9

urged on by the thought of a profitable field of endeavor 
from which skilled workers are now barred by statute. No 
conservation is achieved.

There being no reasonable relation between the objec­
tives claimed as justification for this statute and the means 
sought to achieve it, no doubt can be entertained that this 
legislation like the statute in Truax v. Raich8 is discrimina­
tion against a group of unpopular aliens, as such, in compe­
tition with citizens. As such it comes into fatal conflict 
with the Fourteenth Amendment and must fail.

II.
State legislation excluding aliens from the right to 

work is an interference with the national sovereignty.

The present complicated state of international relations 
demonstrates the wisdom of the concept that all power in 
the field of international law, which includes within its 
scope immigration as well as the power to confer citizen­
ship, must rest wholly in the Federal government. The 
legislation presented to this Court is an unwarranted and 
dangerous interference with that power.

A. The legislation here presented is an attempt to
exclude a class of aliens from residing in the state.
The amendment to the Fish and Game Code prohibiting 

aliens ineligible to citizenship from engaging- in the com­
mon occupation of commercial fishing was enacted in 1945 
in the midst of an anti-Japanese hysteria on the west coast 
which exhibited itself in acts of violence which were ex­
tended even to honorably discharged veterans who had 
fought in the American army against the Japanese govern- 3

3 239 U. S. 33.



1 0

ment. While on its face this statute makes no mention of 
race, the dissenting opinion in the court below, viewing the 
historical background of this legislation and of court de­
cisions on anti-alien legislation in California, found that 
the law in the instant case is aimed solely at the Japanese 
(R. 53). See also D. 0. McGovney, “ Anti-Japanese Land 
Laws” , 35 Cal. Law Review 7, 51. The concurring opin­
ions of Mr. Justice M u r p h y  and Mr. Justice B rack  in 
Oyama v. California* rest in large part upon the fact that 
legislation against land ownership by aliens ineligible to 
citizenship in our western states has been “ designed to 
effectuate a purely racial discrimination”  . . . “ is rooted 
deeply in racial, economic, and social antagonism”  . . . 
and is the result of “ racial hatred and intolerance.”  Like 
the Alien Land Law, the California law here under review 
is designed to “ discourage the coming of Japanese into 
this State.” 4 5 6

That the power to exclude aliens from the right to earn 
their living was also the power to exclude them from en­
trance and abode was recognized by this Court in Truax 
v. Raich, where it was stated:

“ The assertion of an authority to deny to aliens 
the opportunity of earning a livelihood when law­
fully admitted to the state would be tantamount to 
the assertion of the right to deny them entrance and 
abode, for in ordinary cases they cannot live where 
they cannot work. . . . ” e

When this fundamental purpose of the law is recognized, 
it becomes clear that the statute is an interference with the 
sovereignty of the Federal government in the field of immi­
gration, naturalization, and international law.

4 16 Law Week 4108,-------U. S . --------.
5 Estate of Tetsubumi Yano, 188 Cal. 645.
6 239 U. S. 33, 42.



1 1

B. The right to exclude aliens is vested solely in the
Federal Government.
The Chinese Exclusion Case7 established and United- 

States v. Curtiss W right8 reaffirmed that the investment 
of the Federal government with the powers of “ external 
sovereignty”  in the field of international affairs was “ a 
necessary concomitant of nationality.”  Indeed, in “ The 
Constitution and World Organization” , Professor Corwin 
has concluded from these cases that in the field of inter­
national relations the Federal government does not operate 
under constitutional restraints.9 As late as 1945, the law 
of nations was not viewed as placing any restriction upon 
the discriminations which a sovereign might practice in 
establishing tests of undesirability for aliens seeking ad­
mission.10 Thus, the Federal government, and it alone, 
can admit or exclude aliens, without restriction or limita­
tion under the law today.

Despite the confused state of the law as to citizenship 
prior to the adoption of the Fourteenth Amendment,11 today 
the power to grant or withhold citizenship in our nation is 
also vested in the Federal government. However, the states 
continued to vest aliens within their respective boundaries 
with certain privileges of state citizenship, and it has been 
said that it was not until 1928 that an election was held in 
which no alien voted.12 Their power to do so is not chal­
lenged.

7 130 U. S. 581.
8 299 U. S. 304.
9 Pp. 6, 19, 29-30. See also M. R. Konvitz, The Alien and the 

Asiatic in American Law, Chapter 1.
10 C. C. Hyde, International Law (2d Ed.) I, 217.
11 See the opinion of this Court in Slaughter House Cases, 83 U. S. 

36, where it is stated, at page 73, that prior to 1866: “ It had been 
said by eminent judges that no man was a citizen of the United States 
except as he was a citizen of one of the states composing the Union.”

12 Aylsworth, “ The Passing of Alien Suffrage” , Am. Pol. Sci. Rev. 
X X V  (1931) 114.



1 2

But a far different problem is presented when, after the 
admission of an alien by the Federal government, the state 
seeks, as here, to place additional and unreasonable burdens 
upon him. Though the Federal government may be un­
restrained by constitutional protections of private rights in 
determining whether to admit or exclude an alien, once 
admitted, even though denied national citizenship by Con­
gressional action, the alien is a person clothed with those 
constitutional guarantees of life, liberty and property and 
the protection of equal laws which form the basis of a de­
mocracy. The states inherit no such unrestricted power in 
relation to a resident alien as is possessed by the Federal 
government in regard to an alien seeking entry.

But another and equally serious restriction on the power 
of states to harry, persecute and, if possible, drive from 
their border aliens legally admitted to the country, arises 
from the fact that though we are a federation of sovereign 
states, the component parts may not isolate themselves and 
restrict the freedom of persons to establish residence or 
travel freely in the states.

Such was the reasoning which led this Court to hold 
unconstitutional an Arizona law restricting the right of 
aliens to work in common occupations, thereby excluding; 
them from residence. In Truax v. Raich, this Court found 
that the attempt to exclude aliens from residence in certain 
states by state action would be derogatory of the power of 
Congress under which those aliens had been lawfully ad­
mitted to the country. In that decision, this Court spoke 
of the right of aliens, without the interference of the states, 
to enjoy “ in their full scope the privileges conferred by 
admission.”



13

In the words o f  Mr. Justice Cardoza, our Constitution 
was “ formed upon the theory that the peoples of the several 
states must sink or swim together and that in the long run 
prosperity and salvation are in union and not division.” 13

Attempts by the states to isolate themselves from the 
economic disasters of other sections of the country by limit­
ing the right of citizens to travel freely within the country 
have been struck down by this Court as subversive of the 
welfare of the nation on much the same basis, though re­
liance was placed on the commerce clause in so doing.14

Political and ecomonic reality in a world of shrinking 
dimensions give added emphasis to the legal requirement 
that the states of our nation must form a unit for the pur­
pose of determining the right to live within the states, which 
is, of course, contingent upon the right to earn a living 
within the states.

The ultimate result of laws such as that here challenged, 
if valid, would be to vest in the Federal government the 
right to make only an empty legal determination of the right 
of an alien to enter the United States while granting to the 
forty-eight states the power, by forty-eight individual laws, 
to exclude such persons from the United States. Viewed in 
that light, the interference with an inherent and necessary 
power of Federal sovereignty is clear and for that reason 
alone, this law is invalid.

13 Baldwin v. G. A . F. Seelig, 294 U. S. 511, 523.
14 Edwards v. California, 314 U. S. 160.



14

III.

A  state law denying to a racial group the right to 
engage in a common occupation violates the obliga­
tions of the United States under the United Nations 
Charter.

While the statute on its face purports to have a certain 
impartiality by describing the proscribed group as “ persons 
ineligible to citizenship, ’ ’ the 1940 Census Eeport18 19 shows 
only 48,158 aliens ineligible to citizenship in the country, 
of which 33,569 were Japanese aliens residing in California. 
By the same census only 853 aliens ineligible to citizenship, 
other than Japanese, resided in the entire United States. 
These figures conclusively establish that the legislation be­
fore this Court is aimed at one racial or national group 
and one alone—the Japanese.

Whatever the protections furnished in the Federal Con­
stitution against state legislation unreasonably discriminat­
ing on racial or natonal grounds, it is clear today that the 
Federal government has pledged itself, with the other mem­
bers of the United Nations, to fulfill in good faith an obliga­
tion to promote “ universal respect for and observance of 
human rights and fundamental freedoms for all without 
distinction as to race, sex, language, or religion.” 16

The United Nations Charter, as a treaty duly executed 
by the President and ratified by the Senate 17 is declared 
to be the supreme law of the land by Article VI, Section 2 
of the Constitution and any laws of any state to the con­
trary must fall before this non-discriminatory provision 
of a treaty obligation.

18 U. S. Census, 1940, “ Characteristics o f the Non-White Popula­
tion,” p. 2.

19 United Nations Charter, Articles 55 and 56.
17 51 Stat. 1031.



15

There can be no doubt that the right to work is one of 
the fundamental freedoms to which the United Nations 
Charter refers. It has been so declared by numerous de­
cisions of this Court. As was stated by this Court in 
Truax v. Raich, supra,

“ It requires no argument to show that the right 
to work for a living in the common occupations of 
the community is the very essence of the personal 
freedom and opportunity that it was the purpose 
of the (14th) Amendment to secure.”

This principle has been reiterated under many different 
circumstances, and the right to work has been protected 
against action only indirectly that of the government.18

While the interest of nations in foreign affairs was 
originally confined to the treatment of their own nation­
als in other countries, the scope of international negoti­
ations has been constantly broadening. At the close of the 
First World War treaties signed between many nations 
provided for the protection of civil rights of national 
minorities in no way related to the parties signatory. More 
recently our government included such provisions in 
treaties of peace with Italy, Bulgaria, Hungary and Eou- 
mania.19 That Japan is not yet a member of the United

18 See Allgeyer v. State of Louisiana, 165 U. S. 589; Steele v. Loui­
siana & Nashville R. R. Co., 323 U. S. 192.

19 “ Making the Peace Treaties,” Dept, of State Publications, 2274, 
European Series; 16 State Dept. Bulletin 1077, 1080, 1082. See also 
Resolution No. 51 of the International American Conference on Prob­
lems of W ar and Peace, Mexico City, 1945; Department of State 
Bulletin No. 4, March 18, 1945, pp. 347-451. See also the Resolution 
adopted by the Eighth International Conference of American States 
at Lima, Peru, in 1938, reading in part as follows: “ That the demo­
cratic conceptions of the state guarantees to all individuals the condi­
tions essential for carrying on their legitimate activities with self- 
respect.”  Document on Foreign Policy, Vol. I, 1938-1939, World 
Peace Foundation, p. 49.



16

Nations in no way diminishes the obligation of this country 
to treat Japanese aliens resident here fairly and in a non- 
discriminatory manner. Our failure to do so has serious 
implications for world peace.

The passage of such laws as have existed in this coun­
try discriminating against the Japanese, including the 
congressional action depriving them of the possibility of 
becoming American citizens and their exclusion under the 
Quota Act, does not pass unnoticed in other nations. Even 
in 1924 when means of communication were much less de­
veloped, word of the Japanese Exclusion Act caused anti- 
American demonstrations and denunciations of our coun­
try in Japan.20 Today the Japanese press and the press 
of all nations follow more closely than in 1924 the practices 
with which we implement our protestations of democratic 
principles. As was stated by Mr. Dean Acheson on May 
8, 1946, when he was Acting Secretary of State: 21

“ the existence of discrimination against minority 
groups in this country has an adverse effect upon 
our relations with other countries. We are reminded 
over and over by some foreign newspapers and 
spokesmen, that our treatment of various minorities 
leaves much to be desired. While sometimes these 
pronouncements are exaggerated and unjustified, 
they all too frequently point with accuracy to some 
form of discrimination because of race, creed, color, 
or national origin. Frequently we find it next to im­
possible to formulate a satisfactory answer to our 
critics in other countries; the gap between the things 
we stand for in principle and the facts of a particular 
situation may be too wide to be bridged. An atmos­
phere of suspicion and resentment in a country over

20 Y. Ichihashi, Japanese in the United States (Stanford University 
1932, p. 315).

21 Final Report, FEPC, June 28, 1946, p. 6.



17

the way a minority is being treated in the United 
States is a formidable obstacle to the development 
of mutual understanding and trust between the two 
countries. We will have better international relations 
when these reasons for suspicion and resentment 
have been removed.”

As stated b y  Mr. Justice B lack  in his concurring opinion 
in Oyama v. California, supra:

“ How can this nation be faithful to this inter­
national pledge if state laws which bar land owner­
ship and occupancy by aliens on account of race are 
permitted to be enforced!”

Within the framework of a federal form of government 
there may be many fields in which the United Nations Char­
ter will require specific enabling legislation before it be­
comes an effective obligation upon the people of the United 
States. Yet certain aspects of the Charter are by force of 
American law sufficiently clear to constitute the supreme 
law of the land as a self-executing obligation and thus to 
supersede state laws which violate them.

That the law here presented for review must fall before 
the supremacy of a treaty obligation of the United States 
was recognized by the concurring opinion in the Oyama ease. 
Indeed, Mr. Justice M u r p h y  said of the Alien Land Law 
that it

“ does violence to the high ideals of the Constitution 
of the United States and the Charter of the United 
Nations . . . Human liberty is in too great a peril 
today to warrant ignoring that principle in this case. 
For that reason I believe that the penalty of un­
constitutionality should be imposed upon the Alien 
Land Law.”



1 8

Conclusion.

I f  at other times in our history there were moral grounds 
for the protection of unpopular minorities, there are today 
compelling practical reasons for the revitalizing of the 
practices of democracy within our borders. The statute 
here challenged not only vitiates constitutional guarantees 
of personal freedom, but weakens our nation in a field in 
which the Federal government is supreme. For these rea­
sons it is respectfully submitted that the judgment of the 
Supreme Court of California be reversed.

Respectfully submitted,

T hubgood Ma r sh a ll ,
Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M arian  W y n n  P erry,
Counsel for National Lawyers 
Guild.

E dward R. D udley,
Of Counsel.



[6558]12

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