The Real Precedents Set By Japanese American Internment

11/17/2016 11:56 am ET Updated Nov 18, 2017

It can be difficult to say the least, in the flurry of post-election news, to keep track of all the horrific actions being taken and things being said. Certainly overt hate crimes and attacks should take precedence in where we focus our collective attention and outrage. Yet extreme proposals being floated or considered by the Trump transition team demand their own engagement, particularly in this period before they have the potential to become policy or law. And so do the arguments and justifications being offered in defense of those ideas.

In a horrifying case in point, Trump supporter and surrogate Carl Higbie used the historical case of the Japanese American internment camps to argue for the legality of a proposed registry for Muslim Americans. "To be perfectly honest," Higbie noted of the registry proposal, "it is legal. They say it will hold constitutional muster. I know the ACLU is going to challenge it, but I think it'll pass. ... We did it during World War II with the Japanese. ... I'm just saying there is precedent for it."

On two significant levels, American history unfortunately bears Higbie out. Obviously Executive Order 9066, the Roosevelt administration's February 1942 action which ordered the internment of Japanese Americans, offers an overt historical precedent for the federal government taking such discriminatory actions against perceived threats from an American community. And two years later, the Supreme Court's 6-3 ruling in favor of the government (and against a Japanese American man, Fred Korematsu, who had evaded internment) in the case of Korematsu v. United States (1944) provided legal and constitutional support for the internment policy and camps.

On those latter legal questions, however, subsequent decisions have challenged and altered that precedent. In April 1984, federal District Court judge Marilyn Hall Patel voided Korematsu's conviction, ruling that the government had knowingly submitted false information to the Supreme Court. And in March 2011, the Department of Justice took a broader step, filing an official "Confession of Error" conceding that the Solicitor General's 1940s defenses of internment were in error. To focus on 1940s precedents without acknowledging and engaging with these subsequent legal steps would represent both an inaccurate and a propagandistic use of history for present purposes.

Yet we don't have to leave the 1940s to find entirely distinct, and to my mind much more genuine, historical precedents from the internment era. In early 1943, in response to Japanese propaganda about the camps, shifting wartime realities and needs, and other factors both practical and (perhaps) philosophical, the administration reversed policy and authorized the enlistment of Japanese Americans into the Armed Forces. The response was literally overwhelming: in Hawaii (which had not interned its Japanese American citizens), a call for roughly 1500 volunteers led 10,000 Japanese Americans to recruiting offices; while of course perspectives were more mixed in the camps, more than 2000 interned Japanese American men volunteered.

By the war's end, more than 33,000 Japanese Americans had served in two all-Japanese units (the Armed Forces were still segregated throughout World War II): the 442nd Infantry Regimental Combat Team and the 100th Infantry Battalion. The 100th experienced such consistent danger and demonstrated such bravery that it came to be known as the "Purple Heart Battalion," with nearly 10,000 casualties in the course of the war. The heroic and vital efforts of all these Japanese American soldiers and units, in both the European and Pacific theaters, were recognized again and again, as in General George Marshall's remark that "they showed rare courage and tremendous fighting spirit. Everybody wanted them." In recent years these veterans have been awarded both the Congressional Medal of Honor and the Congressional Gold Medal, two of our highest national and civic honors.

Perhaps Higbie (and, implicitly, Trump) are right, and after the inevitable legal challenges a Muslim registry would be found legal and constitutional by the Supreme Court (an outcome that could depend on who appoints the next Supreme Court Justice, of course). If so, the historical precedent of Japanese internment indicates that such a policy and decision would be subsequently and thoroughly challenged and overturned, and the federal government would end up formally apologizing and paying reparations to all those Americans affected.

But we wouldn't have to wait for those subsequent histories to play out. As the stories of Japanese American soldiers exemplify, the most inclusive and genuinely communal visions of America always coexist with, respond to, and transcend the most exclusionary and discriminatory narratives of our identity. Is it possible that we could learn from the true precedents of such histories, and avoid going so fully down the path of exclusion in our own era? Can we remember and repeat the best, rather than the worst, of the past?