It Can Happen Here: The 75th Anniversary Of The Japanese Internment, Part II

11/19/2017 06:34 pm ET Updated Nov 19, 2017

In Part I of this three-part series, I traced the events leading up to President Franklin’s Roosevelt’s decision, on Feb. 19, 1942, to sign Executor Order 9066. For that essay, see here

In this second essay, I will discuss the reasons for Roosevelt’s action and the Supreme Court’s deeply unfortunate decisions upholding the constitutionality of Executive Order 9066.

The public rationale for the Japanese internment, laid out in General DeWitt’s final report recommending the evacuation of all persons of Japanese ancestry from the West Coast, was that time was of the essence and that the government had no reasonable way to distinguish loyal from disloyal persons of Japanese descent in order to prevent them from committing acts of espionage and sabotage.

This report has rightly been condemned as a travesty. It relied upon unsubstantiated and even fabricated assertions; the FBI had already taken into custody all of the individuals it suspected of potential subversion; and there was not a single instance of espionage or sabotage by any American of Japanese-descent in the months between Pearl Harbor and Roosevelt’s signing of Executive Order 9066. The argument of military necessity was simply not credible.

Why, then, did the president sign the executive order? Robert Jackson, who had served as Roosevelt’s attorney general before being appointed to the Supreme Court, once observed that Roosevelt was a “strong skeptic of legal reasoning” and, despite his reputation, was not a “strong champion of ... civil rights.”

Jackson said he: 

... had a tendency to think in terms of right and wrong, instead of terms of legal and illegal. Because he thought that his motives were always good for the things that he wanted to do, he found difficulty in thinking that there could be legal limitations on them.

Jackson’s successor as Attorney General, Francis Biddle, also speculated about why Roosevelt signed Executive Order 9066:

I do not think he was much concerned with the gravity or implications of this step. He was never theoretical about things. The military might be wrong. But they were fighting the war. Public opinion was on their side, so there was no question of any substantial opposition.

Undoubtedly, public opinion played a key role in the thinking of both the military and the President. Indeed, there was almost no public protest of Roosevelt’s decision. Even most civil liberties groups kept relatively quiet. Although Roosevelt explained the order in terms of military necessity, there is little doubt that domestic politics played a key role in his thinking, particularly because 1942 was an election year and Roosevelt was hardly immune to politics. Roosevelt did not want to run the risk of alienating voters on the West Coast. As the legal historian Peter Irons has observed, the internment decision “illustrates the dominance of politics over law in a wartime setting.”

In his speculation about Roosevelt’s thinking, Attorney General Biddle observed that “ultimately the Supreme Court must decide.” And so it did, in a series of critical decisions addressing the constitutionality of different aspects of the military orders.

In June 1943, the Court handed down its decision in Hirabayashi v. United States. Gordon Hirabayashi was born in 1918 in Auburn, Washington. His father ran a roadside fruit market. His parents were pacifists. He attended the University of Washington, where he assumed a leadership role in the YMCA and the Japanese Students Club. In the summer of 1940 he travelled to New York City to attend a program at Columbia University, where he participated in passionate debates about pacifism and social activism.

After President Roosevelt signed Executive Order 9066, Hirabayashi, with the assistance of a local legislator and the ACLU, decided to challenge the constitutionality of General DeWitt’s curfew order by intentionally violating it and then turning himself in to the FBI.

Chief Justice Harlan Fisk Stone wrote the opinion of the Supreme Court upholding Hirabayashi’s conviction. Although Stone observed privately that he was shocked that “U.S. citizens were subjected to this treatment,” he nonetheless upheld the constitutionality of the curfew.

The war power of the national government, he wrote, is:

... the power to wage war successfully. ... We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons ... constituted a menace to the national defense and safety.

Although conceding that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” Stone argued that:

... it by no means follows that, in dealing with the perils of war, Congress and the Executive are precluded from taking into account those facts and circumstances which are relevant to measures for our national defense ... and which may in fact place citizens of one ancestry in a different category from others.

Justice Frank Murphy informed his colleagues that he intended to write a dissenting opinion, arguing that the guaranties of the Bill of Rights are not suspended by the mere existence of a state of war. But Justice Felix Frankfurter persuaded Murphy not to dissent, arguing that it would undermine the “great reputation of this Court” if Murphy were to accuse his colleagues of betraying the Constitution and “behaving like the enemy.”

The following year, in Korematsu v. United States, the Supreme Court upheld the exclusion order in a 6-to-3 decision. Fred Korematsu was born in 1919 in Oakland, California. After graduating from high school, he worked as a shipyard welder. In June 1941 he sought to enlist in the U.S. Navy, but was turned down because of gastric ulcers. On May 30, 1942, the police in California, stopped and questioned Korematsu, who was walking down the street with his girlfriend. He said he was of Spanish Hawaiian origin. The police took him in for questioning, and he then admitted his real name and nationality. He explained that the rest of his family had been sent to an internment center, located in a converted racetrack, but that he had not reported because he was trying to earn enough money to move to the Midwest with his girlfriend, who was Italian. He maintained that General DeWitt’s Exclusion Order was unlawful.

Justice Hugo Black delivered the opinion for the majority: “We cannot reject as unfounded,” he reasoned, “the judgment of the military authorities . . . that there were disloyal members of [the Japanese-American] population, whose number and strength could not be precisely and quickly ascertained.” Black explained that “we are not unmindful of the hardships imposed . . . upon a large group of American citizens. But hardships,” he proclaimed, “are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.”

Turning to the specifics of the case, Black then insisted that:

... to cast this case into outlines of racial prejudice ... confuses the issue. Korematsu was not excluded from the [West Coast] because of hostility to ... his race ... [but] because the ... military authorities ... decided that the ... urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the [area].

“We cannot,” he declared, “by availing ourselves of the calm perspective of hindsight, now say that at that time these actions were unjustified.”

The three dissenting justices were Owen Roberts, Frank Murphy, and Robert Jackson. Justice Roberts argued that it was patently unconstitutional for the government to insist that an individual submit “to imprisonment in a concentration camp” for no reason other than “his ancestry.”

Justice Murphy wrote a particularly angry dissent. He argued:

No adequate reason is given for the failure to treat these Japanese-Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry.

He added:

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this period.

The government, Murphy charged, had gone beyond “the very brink of constitutional power” and had fallen into the “ugly abyss of racism.”

In the third and final part of the series, which I will post tomorrow, I will discuss our nation’s response to this tragedy over the past 75 years.

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