A few years ago, I had the honor of drafting a “hypothetical” fact pattern for a moot court competition in which law students advocate for each side as if it were a real case. My problem for the would-be lawyers was criticized, because it seemed outlandish and complicated. I was inspired by actual precedent to imagine a scenario involving another internment, without quite preceding to the extreme of mass incarceration. The possibility turns out to be both plausible and simple.
In teaching about the subject, I have challenged students who would condemn the World War II prison camps for Japanese Americans — called “concentration camps” in official documents when that was a technical term for holding civilians during military conflict, before the Nazi horrors were widely known. They typically have wanted to denounce the program, approved by President Franklin Delano Roosevelt, ratified overwhelmingly by Congress, and upheld by a majority of the Supreme Court, as “racist.”
I do not doubt that it was. But that label is a conclusion without persuasive power. People who are open-minded will engage in dialogue. I am always willing to talk.
To be clear, I am convinced the internment was wrong. Appreciating democracy, I am certain that any of us who agrees it should be prevented will be compelled to explain why it was wrong. Here are a half dozen reasons. (This essay is the third of a trilogy. The earlier installments offered background on the hatred of Japanese Americans at the time and the sentiments about the internment since then.)
First, we sometimes forget the single most important objection. Since the Pacific War was called a “race war” without qualms, it is easy to see how concern about this homefront policy focuses on race. The debate over the internment is typically framed as a balance between national security and civil rights, whether protection of the homeland demands sacrifice of its principles.
Yet before entertaining any such compromise, we should ask if the idea would even be successful for its stated purpose. If it won’t work, then there isn’t any need to proceed further. That prompts the necessary question: what is the point?
The ostensible motivation for the internment and its precursors (such as a curfew) is preventing crime and terrorism. As a tactic, requesting that transgressors cooperate with you may not generate the desired result though (mis)identifying potential informants likely impairs your investigation. It is underinclusive of the threat; overinclusive of the innocent. The ineffectiveness of a measure counsels against it. The violation of ideals merely confirms the folly.
Thus a utilitarian calculation of the speculative benefits against the definite costs suggests that there also might be other intentions not to be articulated. It might be as much the signal that is sent, of who belongs and who doesn’t, the stigma that is to be affixed to a community, as any legitimate law enforcement objective.
Second, the internment relied on an inaccurate picture of Japanese Americans as a whole. They were eager to assimilate, so much so that among the most popular pastimes in the camps was baseball.
A generation after the war, a Japanese American sociologist wrote a monograph about the population. He opened with a line that became famous, namely that if you scratch a Japanese American you would find a white Anglo-Saxon Protestant underneath. The internment likely accelerated that tendency. But it was there before in ample display.
When a man named Takao Ozawa tried to naturalize, bringing his claim to the Supreme Court in 1922, the Japanese immigrant observed that he had converted to Christianity, spoke English only, and was employed by an American company; his wife was similarly attached to these new customs, and they were raising their children to be loyal to their adopted land. The Justices rejected his application, earnest though he may have been, erecting a racial requirement for citizenship: you had to be a “free white person” to qualify, and Asians were not “white” — the next year, refusing a South Asian who came before them to beseech them similarly, they continued that Asians were not “Caucasian” either.
Third, the internment lacked due process as to any individual Japanese American. There were approximately 120,000 persons affected. Two-third of them were native-born citizens (thanks to a Chinese American who established that Constitutional right, against the opposition of the United States government, which had contended if a Chinese could be a citizen then it was not worth possessing citizenship). They included men, women, children, the elderly, and the disabled.
None were given hearings. Those in charge stated that it would be impossible, because of the deviousness of Oriental psychology, to determine who was telling the truth. (One of the earliest decisions of the California Supreme Court had decreed that Chinese witnesses had to be corroborated by white witnesses, because the former were not credible.)
The unfairness of the internment was revealed by how mixed-race couples were classified. Anti-miscegenation laws in many states prohibited Asians and whites from marrying. The few such unions were characterized by gender. A white man could confer citizenship on an Asian woman. An Asian man would strip citizenship from a white woman. There are reports that the internment proceeded accordingly. A white male-headed household was protected, but not an Asian male-headed counterpart. Adoptees and orphans were included.
Fourth, the internment did not make sense on its own terms. Japanese Americans in Hawaii were not subjected to internment. If the fears of Japanese treachery were well-founded, then the priority would be pre-empting it on the islands where Pearl Harbor had occurred, in the theatre of active conflict, where the “enemy” was numerous.
Yet the commanders on the ground there were averse to taking action against the Japanese who surrounded them. They had a better sense of their safety. They were not unaware that the plantation economy depended on Japanese laborers.
Fifth, the internment was selective. German Americans and Italian Americans were not subjected to internment. Germany and Italy were the other Axis powers. America was at war with them. A handful of Germans and Italians were arrested. The scale of their situation was not comparable. (This issue deserves more detailed discussion, presented in this postscript.)
Sixth, the internment was all about race. The hostility toward Japanese Americans did not spring up the day after the Pearl Harbor attack. The proposition that logical deliberation from facts, assessing the odds, led to the internment is preposterous, belied by ample pre-existing prejudice.
The hatred had been calmly codified in law and reflected by everything from political campaigns to popular culture. In addition to the racial bar on naturalization and anti-miscegenation statutes, there were the Alien Land Laws prohibiting acquisition of property and shameless segregation. Many Japanese American college graduates were turned away for jobs. Companies didn’t hire their “kind.” They were relegated to ethnic enclaves or domestic service.
Racial denial has no limits though. When the Supreme Court took up the case of Fred Korematsu, a blue-collar Californian of Japanese descent who wished to stay behind with his Italian American girlfriend, Justice Hugo Black, a former Ku Klux Klan member, said that Korematsu was being kept away from the war zone not because of race but due to the conflict with Japan. That rationalization is spurious.
The nexus is race. That is how Korematsu is related to Japan. Absent his bloodline, he is just another citizen. He cannot be distinguished from the next person on the street. (Race then is what ethnicity is now; people spoke of the “Japanese” race as they would the “German” race — we might substitute “ethnicity,” but no matter, because it’s all about ancestry anyway.)
Even were a racial generalization by some means devoid of animus, an inference from statistics, there is the racial foundation that cannot be overcome. The law, and our social norms, have evolved away from racial assumptions regardless of any insistence about their purity. We have been chastened from a series of negative experiences. Racial images are too uncertain, except in the resentments they provoke. We have declared that we will avoid them. The pledge has become integral to our social contract, if occasionally respected in the breach.
The choice among the critiques of the internment, which are not exclusive, is more than an academic exercise. Saying that one plan is wrong doesn’t indicate whether another plan might be right. You might tolerate an internment of aliens but not citizens. If you believe, for example, that the internment was a mistake because Japanese Americans in the aggregate were not dangerous, you would be consistent in allowing another internment of a different demographic category that you deemed on the whole to present a risk. If you think, instead that the internment was an error because there were not individual hearings for Japanese Americans who were suspected, then you would regard the handling of German and Italian Americans as no less offensive, and, presumably, you would acquiesce to an alternative that offered an opportunity to present a defense.
When a team of law professors proposed a textbook on the internment, which has enough legal complexities for a whole course, we thought the subject was historically important. We began our work in the last millennium, when current law students were only being born. We did not anticipate that our pedagogical project would have such contemporary relevance. Yet from our past is born our future.
May we see that our destiny is shared.