When The Laws Were Silent


Postwar public opinion very quickly came to see the forced relocation and detention of people of Japanese ancestry as a grave injustice. Writing in 1945, Eugene Rostow, then a professor at Yale Law School and later its dean, declared the program “a disaster” that both represented an abandonment of our traditional subordination of military to civil authority and sanctioned racially based discrimination. Edward Ennis, who as a lawyer in the Justice Department had opposed the program, reappeared nearly forty years later on behalf of the ACLU to testify before the congressionally created Commission on Wartime Relocation and Internment of Civilians. He characterized the program as “the worst blow to civil liberty in our history.” In the view of this author, some of this criticism is well justified, and some not; its principal fault is that it lumps together the cases of the issei and the nisei.

The cases before the Supreme Court— Hirabayashi, Korematsu , and Endo —all involved nisei, children of immigrants, who were born in the United States and thus were American. The basis on which the Court upheld the plan were military representations as to the necessity for evacuation. These representations were undoubtedly exaggerated, and they were based in part on the view that not only the issei but their children were different from other West Coast residents.

In defense of the military it should be pointed out that these officials were not entrusted with the protection of anyone’s civil liberty; their job was making sure that vital areas were as secure as possible from espionage or sabotage. The role of General DeWitt was not one to encourage a nice calculation of the costs in civil liberty as opposed to the benefits to national security. Gen. Walter Short, the Army commander in Hawaii, and Adm. Husband E. Kimmel, the Navy commander there, both were summarily removed from their commands ten days after Pearl Harbor because of their failure to anticipate the Japanese surprise attack. The head of the Western Defense command was surely going to err on the side of preparedness.

Moreover, it was not DeWitt and his associates who had first recommended evacuation of the issei and nisei; as we have seen, the principal early proponents of that idea were Governor Olson, Attorney General Warren, Los Angeles Mayor Bowron, and the congressional delegations of the three West Coast states. Public opinion should not be the determining factor in making a military appraisal, but it is bound to occur to those engaged in that task how they will be regarded if they reject a widely popular security measure that in retrospect turns out to have been necessary.

The United States prides itself on having a system in which the civilian heads of the service departments are supreme over the military chiefs, so one might expect that Henry Stimson and John McCloy would have made a more careful evaluation of the evacuation proposal than they appear to have done. Far from the Pacific Coast, they would be expected to have a more detached view than the commander on the scene. But here too there seems to have been a tendency to feel that concern for civil liberty was not their responsibility. There is even more of this feeling in Roosevelt’s perfunctory approval of the plan in response to a phone call from Stimson. Biddle’s protests proved futile even at the highest levels of government, in part because no significant element of public opinion opposed the relocation.

Once the relocation plan was in place, it could be challenged only in the courts. Was the Supreme Court at fault in upholding first the curfew, in Hirabayashi , and then the relocation, in Korematsu ? In Hirabayashi the Court could have decided both the validity of the relocation requirement and the curfew requirement, for the “concurrent sentence” doctrine under which it declined to do so is discretionary. But counseling against any broader decision was the wellestablished rule that the Court should avoid deciding constitutional questions if at all possible, and so the Hirabayashi decision left the far more difficult question for another day.


When that day came, in Korematsu , a majority of the Court upheld the relocation program. Justice Black’s opinion for the Court in Korematsu followed the same line of reasoning as had Chief Justice Stone’s in Hirabayashi . But this time there were three dissenters, who had voted to uphold the curfew but wanted to strike down the relocation program.