Bakke v. Regents Opening Brief of Appellant and Cross-Respondent

    T T ^

IN  THE

(Emxrt of tin' United
October Term, 1947

TORAO TAKAHASHI,

v.
Petitioner,

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

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS AMICUS CURIAE.

T hhegood M arshall ,
M arian  W y n n  P erry,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E dward R. D udley ,
Of Counsel.



I N D E X

PAGE

Motion for Leave to File Brief as amicus curiae---------  1
Brief for the National Association for the Advance­

ment of Colored People as amicus curiae ------------  3
Opinion Below and Statute Involved --------------  3
Questions Presented----------------------------------------  4
Statement of the Case --------   4

Reasons for Granting the W r it ---------------------------------  5
Argument:

I— The question presented by the petition is one of 
national importance and involves a fundamental 
question of constitutional law ___________________  5

II—A statute denying to a racial group the right to 
engage in a common occupation violates the equal 
protection clause of the Fourteenth Amendment 7

III—A  state law denying a racial group the right to 
engage in a common occupation violates obliga­
tions of the Federal Government under the United 
Nations Charter ______________________________  10

Conclusion__________________________________________  13

Table o f Cases

Allgeyer v. State of Louisiana, 165 U. S. 589 ------------  9
Baldwin v. G. A. F. Seelig, Inc, 294 U. S. 511, 523 _ _  7
Edwards v. California, 314 U. S. 160 ------------------------ 7
Hirabayashi v. United States, 320 U. S. 81, 100________  8
Nixon v. Herndon, 273 U. S. 536, 541 ------------------------- 8



11
PAGE

Oyama v. California, 16 L. W. 4108, — U. S. — (decided 
January 19, 1948) ________________________________ 6

Steele v. Louisville & Nashville E. E. Co., 323 U. S.
192_____________________________ ._________________ 9

Truax v. Eaich, 239 IT. S. 33, 42 ______________________  6
United States v. Belmont, 301 U. S. 324 ___ _________ 11
Yano, Tetsubumi, Estate of, 188 Cal. 645, 239 U. S. 33,

4 2 _______________________    6
Yick Wo v. Hopkins, 118 U. S. 356, 374 ___________ _ 9

Authorities Cited

Dean Acheson, Acting Secretary of State, Final Eeport 
of F. E. P. C_____________________________________  12

Elliots Debates, 3, p. 515 ___________________________  11
“ Making the Peace Treaties, 1941-1947“  (Department 

of State Publications 2774, European Series 24); 16 
State Department Bulletin 1077, 1080-82 _________  12

McDiarmid, ‘ ‘ The Charter and the Promotion of Human 
Eights,”  14 State Department Bulletin 210 (Feb.
10, 1946) ______________________ ,_________________  12

Eaphael Lemkin, “ Genocide as a Crime under Inter­
national Law,”  Am. J. of Int. Law, Vol. 41, No. 1 
(Jan. 1947), p. 145________________________________ 11

Stettinius’ statement, 13 State Department Bulletin,
928 (May, 1945) __________________________________  12

U. S. Census, 1940, Characteristics of the Non-White 
Population, p. 2 ____ __ _________ __________________ 7



1ST T H E

Bmpvmz dmtrt of %  Imtefc

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS AMICUS CURIAE.

To the Honorable, the Chief Justice and the Associate Jus­
tices of the Supreme Court:

The undersigned, as Counsel for the National Associ­
ation for the Advancement of Colored People, respectfully 
move this Court for leave to file the accompanying brief as 
Amicus Curiae in the above entitled appeal.

The National Association for the Advancement of 
Colored People is a membership organization which for 
thirty-eight years has dedicated itself to and worked for the 
achievement of functioning democracy and equal justice 
under the Constitution and laws of the United States.

October Term, 1947

F ish  and Game C om m ission , L ee F . 
P ayn e , as Chairman thereof, W. B. 
W illiam s , ’ H arvey E. H astain , and 
W illiam  S ilva , as members thereof.

T oeao T ak ah ash i,

V.

Petitioner,



2

From time to time some justiciable issue is presented to 
this Court, upon the decision of which depends the evolution 
of institutions in some vital area of our national life. Such 
an issue is before the Court now.

The issue at stake in the above entitled petition for 
certiorari is the power of a state to discriminate 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 widespread effect upon 
the welfare of all minority groups in the United States.

T httrgood M arshall ,
M arian  W y n n  P erry,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E dward E . D udley ,
Of Counsel.



IK  T H E

Bnpvmz (tart nf %  luttrfc Stairs
October Term, 1947

T okao T ak ah ash i,
Petitioner,

v.

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

BRIEF FOR THE NATIONAL ASSOCIATION  
FOR THE ADVANCEMENT OF COLORED 

PEOPLE AS AMICUS CURIAE

Opinion Below and Statute Involved

The opinion below and the statute involved are set forth 
in full in the record and in the petition for a writ of certi­
orari to this Court and are adopted herein as the statement 
of jurisdiction contained in that petition.

3



4

Questions Presented
I

Whether consistent with the Fourteenth Amend­
ment the State of California may deny to a single 
class of alien residents of California the right to 
earn their living by commercial fishing.

II

Whether consistent with the treaty obligations 
of the United States the State of California may 
deny to a single class of alien residents of Cali­
fornia the right to earn their living by commercial 
fishing.

Statement of the Case

The petitioner herein has been a resident of Los Angeles, 
California, continuously since 1907 with the exception of 
that period of time when he was excluded from California 
under the Military Exclusion Laws during World War II. 
From 1915 until his exclusion from the state by act of the 
Federal Government petitioner earned his living by com­
mercial fishing on the high seas, which activity was carried 
on pursuant to a license from the Fish and Game Commis­
sion of the State of California (R. 1-6). In 1945, the State 
of California amended Section 990 of the Fish and Game 
Code (Stats. 1945, Ch. 181) so as to forbid the issuance of 
a commercial fishing license to a person ineligible to citizen­
ship, or to corporations a majority of whose stockholders 
or any of whose officers were ineligible to citizenship. IJpon 
the face of the statute no other criterion is applied for 
licensing. Upon petitioner’s return to California in October, 
1945 at the termination of the Military Exclusion Orders 
he found himself, after thirty years of employment as a 
commercial fisherman, Completely barred from that field of 
employment.



5

The petition for certiorari in this Court is to review the 
judgment of the Supreme Court of California which, re­
versed the holding of the Superior Court which had found 
that the Fish and Game Law, as amended, constituted a de­
nial of the equal protection of the laws guaranteed by the 
Fourteenth Amendment.

REASONS FOR GRANTING THE WRIT

I

The question presented by the petition is one of 
national importance and Involves a fundamental ques­
tion of constitutional law.

II

A  statute denying to a racial group the right to 
engage in a common occupation violates the equal pro­
tection clause of the Fourteenth Amendment.

III

A  state law denying to a racial group the right to 
engage in a common occupation violates obligations of 
the Federal Government under the United Nations 
Charter.

A R G U M E N T

I

The question presented by the petition is one of 
national importance and involves a fundamental ques­
tion of constitutional law.

The legislation here presented for review was enacted 
at a time of strong anti-Japanese hysteria on the west coast



6

which revived the campaign of more than thirty years be­
fore to keep the Japanese out of California. This legis­
lation like the Alien Land Law of California which was be­
fore this Court in Oyama v. California1 was “ designed to 
effectuate a purely racial discrimination,”  . . .  “ is rooted 
deeply in racial, economic and social antagonisms” , . . . 
and “ racial hatred and intolerance.” 2 Like that law it is 
framed “ to discourage the coming of Japanese into this 
state.” 3

This Court recognized in Truax v. Raich that:
“ The assertion of an authority to deny to aliens 

the opportunity of earning a livelihood when lawfully 
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. And, if such a policy were per­
missible, the practical result would be that those law­
fully admitted to the country under the authority of 
the acts of Congress, instead of enjoying in a sub­
stantial sense and in their full scope the privileges 
conferred by the admission, would be segregated in 
such of the states as chose to offer hospitality.” 4

The end sought by this legislation reverts to the funda­
mental proposition upon which our country is founded, 
namely whether the states may by individual action divorce 
themselves from the common problems of the nation. The 
federal government has the exclusive right to determine 
whether Japanese aliens may enter this country, but the 
position of California asserts the right of state by individual 
action to nullify the act of the Federal Government and 
effectively exclude aliens from its territory. That such a

1 16 L. W . 4108, —  U. S. —  (decided January 19, 1948).
2 Ibid., concurring opinion of Mr. Justice M urphy.
8 Estate of Tetsubumi Ya-no, 188 Cal. 645.
4 239 U. S. 33, 42.



7

concept must be rejected is apparent from the words of Mr. 
Justice Carbozo in Baldwin v. G. A. F. Seelig, Inc.:

“ The Constitution was framed under the do­
minion of a political philosophy less parochial in 
range. It -was framed upon the theory that the 
peoples of the several States must sink or swim to­
gether, and that in the long run prosperity and sal­
vation are in union and not division. ’ ’ 5

This language was adopted by this Court in 1941 in uphold­
ing the right of citizens freely to move from state to state.6 
The unity of our country’s destiny, asserted in 1915 to stem 
an hysteria against ‘ ‘ the yellow hordes ’ ’ and in the days of 
economic depression to protect the poor and unemployed, 
must be reasserted today by this Court if we are to move 
forward towards a peaceful and democratic society in a 
truly “ United”  States.

II

A  statute denying to a racial group the right to 
engage in a common occupation violates the equal pro­
tection clause of the Fourteenth Amendment.

While the statute on its face purports to have a certain 
impartiality by describing the proscribed group as “ per­
sons ineligible to citizenship” , the 1940 Census Report7 
shows that of 47,305 aliens ineligible to citizenship in the 
country, only 1,000 were other than Japanese. Of these, 
33,569 were Japanese aliens residing in California.

Having so recently reviewed the legislative history of 
the California Alien Land Law in the Oyama case, this

5 294 U. S. 511, 523.
6 Edwards v. California, 314 U. S. 160.
7 U. S. Census, 1940, Characteristics of the Non-White Popula­

tion, p. 2.



Court cannot fail to recognize the same purpose and the 
same undemocratic motivation in the enactment of a law 
barring Japanese from a common occupation in the State 
of California. It remains only to be considered whether 
there is any reasonable basis which can be legally justified 
under the Fourteenth Amendment, for the classification of 
Japanese as a group ineligible to engage in commercial 
fishing.

“ Such a rational basis is completely lacking 
where, as here, the discrimination stems directly 
from racial hatred and intolerance. The Constitution 
of the United States, as I read it, embodies the high­
est political ideals of which man is capable. It in­
sists that our government, whether state or federal, 
shall respect and observe the dignity of each indi­
vidual whatever may be the name of his race, the 
color of his skin or the nature of his beliefs. It thus 
renders irrational, as a justification for discrimina­
tion, those factors which reflect racial animosity.” 8

As stated by this Court, through Mr. Justice H olmes, in 
Nixon v. Herndon: 9 “ States may do a good deal of classi­
fying that it is difficult to believe rational, but there are 
limits, and it is . . . clear . . . that color cannot be made the 
basis of statutory classification.”  The cold statistics of the 
number of ineligible aliens affected by this statute10 sweep 
away any contention that its basis is not the “ yellow color”  
of the Japanese. It is of such color legislation that this 
Court stated in Hirabayashi v. United States:

“ Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a

8 Concurring opinion of Mr. Justice M urphy, in Oyamct v. Cali­
fornia, supra.

9 273 U. S. 536, 541.
10 See footnote 1, supra.



9

free people whose institutions are founded upon the 
doctrine of equality. For that reason, legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal protec­
tion. ’ ’ 11

^

“ 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 the 
petitioners belong and which in the eye of the law 
is not justified. The discrimination is therefore 
illegal. . . . ’ ’ 12

This Court has long recognized that the Fourteenth 
Amendment guarantees the right of persons within the 
jurisdiction of a state not only “ to be free from the mere 
physical restraint of his person”  but also “ to earn Ms 
livelihood by any lawful calling; to pursue any livelihood 
or avocation, and for that purpose to enter into all con­
tracts which may be proper, necessary, and essential to 
his carrying out to a successful conclusion the purposes 
above mentioned.” 13 Even the action of private associa­
tions sanctioned indirectly by the state or federal govern­
ment, in excluding persons from employment because of 
race have been held prohibited by constitutional limita­
tion.14

The legislation of the State of California seeking to pre­
vent Japanese from engaging in a common occupation has 
no rational basis. Being based solely on race, it comes into 
fatal conflict with the Fourteenth Amendment.

11 320 U. S. 81, 100.
12 Yick W o  v. Hopkins, 118 U. S. 356, 374.
13 Allgeyer v. State o f Louisiana, 165 U. S. 589.
14 Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192.



10

III
A  state law denying a racial group the right to 

engage in a common occupation violates obligations of 
the Federal Government under the United Nations 
Charter.

As set forth above in Point 1, the United States Govern­
ment has sole jurisdiction to admit aliens into the United 
States. Once such aliens are admitted they become entitled 
to those constitutional protections which under our form 
of government are afforded to all persons regardless of 
citizenship. More recently they have been afforded an 
added protection by the aet of the United States in sub­
scribing to the United Nations Charter, Article 55 of which 
has pledged this country to promote “ universal respect 
for, and observance of human rights and fundamental free­
doms for all without distinction as to race, sex, language 
or religion.”

The United Nations Charter is a treaty, duly executed 
by the President and ratified by the Senate (51 Stat. 1031). 
Under Article VI, Section 2 of the Constitution such a 
treaty is the “ supreme Law of the Land”  and specifically, 
“ the Judges in every State shall be bound thereby, any 
Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding. ’ ’

The right to work has long been recognized as a funda­
mental human right in American law.15 The laws of Cali­
fornia attempt to deny to Japanese this fundamental right 
in contravention of the international obligations of the 
United States.

15 Allgeyer v. State o f Louisiana, Steele v. Louisville & Nashville 
R. R. Co. and Truax v. Raich, supra.



31

Historically, no doubt has been entertained as to the 
supremacy of treaties under the Constitution. Thus Madi­
son, in the Virginia Convention, said that if a treaty did 
not supercede existing state laws, as far as they contra­
vene its operation, the treaty would be ineffective.

“ To counteract it by the supremacy of the state 
laws would bring on the Union the just charge of 
national perfidy, and involve us in war. ’ ’ 18

While it is true that Japan is not a party to the United 
Nations Charter, the treaty obligations of the United States 
under the Charter are not limited simply to nationals of 
the other member nations. It has now become clear by 
the action of our own government and of other governments 
in international affairs that the treatment of any minority 
group within any country is a proper subject of inter­
national negotiations.16 17

Official spokesmen for the American State Department 
have expressed concern over the effect racial discrimination 
in this country has upon our foreign relations and the then 
Secretary of State, Edward R. Stettinius, pledged our

16 3 Elliots Debates 515; see also United States v. Belmont, 301 
U. S. 324— “ In respect of all international negotiations and compacts, 
and in respect of our foreign relations generally, state lines disappear. 
As to such purposes the state of New York does not exist. Within 
the field of its powers, whatever the United States rightfully under­
takes, it necessarily has warrant to consummate. And when judicial 
authority is invoked in aid of such consummation, State Constitutions, 
state laws, and state policies are irrelevant to the inquiry and deci­
sion.”

17 See Raphael Lemkin, “ Genocide as a Crime under International 
Law,”  Am. J. of Int. Law, Vol. 41, No. 1 (Jan. 1947), p. 145.



12

government before the United Nations to fight for human 
rights at home and abroad.18 19

The interest of the United States in the domestic affairs 
of the nations with whom we have signed treaties of peace 
following World War IT can be seen from the provisions 
in the peace treaties with Italy, Bulgaria, Hungary and 
Rumania, and particularly with settlement of the free terri­
tory of Trieste, in all of which we specifically provided for 
governmental responsibility for a non-discriminatory prac­
tice as to race, sex, language, religion, and ethnic origin.10 
Our interest was in no way limited to treatment of Ameri­
can nationals.

The federal government having acted in the field of 
International Law and pledged our government to protect 
human rights and fundamental freedoms, no state within 
the union has the right to deny to any person such right 
or freedom upon racial grounds.

There cannot be any question that this legislation vio­
lates the letter and the spirit of the treaty obligations of 
the United States and under our Constitution must fall be­
fore the superior power of such treaty.

18 McDiarmid, “ The Charter and the Promotion of Human Rights,” 
14 State Department Bulletin 210 (Feb. 10, 1946) ; and Stettinius’ 
statement, 13 State Department Bulletin, 928 (May, 1945). See also 
letter of Acting Secretary of State Dean Acheson to the F. E. P. C. 
published at length in the Final Report of F. E. P. C. reading in part, 
“ the existence o f discrimination against minority groups in this coun­
try has an adverse effect upon our relations with other countries.”

19 See description of these provisions in, “ Making the Peace Trea­
ties, 1941-1947” (Department of State Publications 2774, European 
Series 24) ; 16 State Department Bulletin 1077, 1080-82.



Conclusion

The actual effect of the California statute is to deny 
upon the basis of race, to a group of persons residing 
therein a right secured to all other persons. That this is 
discrimination under the Fourteenth Amendment has been 
clearly established in numerous cases before this Court. 
The Constitution protects all persons from discriminatory 
state action solely on the basis of race and prohibits the 
unequal application of the law.

It is respectfully submitted that the issues raised by the 
petition for certiorari are of such grave importance that 
this Court should review the decision of the court below.

T hurgood M arshall ,
M arian W y n n  P erry,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E dward R. D udley ,
Of Counsel.



L aw yers P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300