Duncan v. Kahanamoku

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327 U.S. 304 (1946), argued 7 Dec. 1945, decided 25 Feb. 1946 by vote of 6 to 2; Black for the Court, Murphy and Stone concurring, Burton and Frankfurter in dissent, Jackson absent. The Duncan case is often associated with the Japanese exclusion cases (Hirabayashi v. United States, 1943; Korematsu v. United States, 1944; and Ex parte Endo, 1944) because it involved wartime curtailment of fundamental civil liberties under the aegis of military authority.

After the attack on Pearl Harbor by Japanese naval forces on 7 December 1941, Hawaii's territorial governor, Joseph B. Poindexter, acting under the authority of the territorial Organic Act of 1900, suspended the writ of habeas corpus, placed Hawaii under martial law, and relinquished civilian gubernatorial and judicial authority to U.S. Army General Walter C. Short. On the next day, General Short created military tribunals that had power to try civilians for offenses against federal or territorial law and for violation of orders of the military government he had established. He closed all civil courts. This regime of military authority was terminated in October 1944.

In an appeal by two civilians tried by military tribunals, Justice Hugo Black, in a cautiously circumscribed opinion, held that the Organic Act's authorization of martial law did not include the power to supplant civilian courts with military tribunals. Black drew extensively on English and American history to support civilian supremacy over the military. But he carefully avoided constitutional issues raised by the creation of military government, confining himself to statutory construction.

William M. Wiecek

Subjects: Law.

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