When The Laws Were Silent


Over the years, several criticisms have been made of the Court’s opinions in these cases. The most general is of its extremely deferential treatment given to the government’s argument that the curfew and relocation were necessitated by military considerations. Here one can only echo Justice Jackson’s observation that “in the very nature of things, military decisions are not susceptible of intelligent judicial appraisal.” But it surely does not follow from this that a court must therefore invalidate measures based on military judgments. Eugene Rostow suggested holding a judicial inquiry into the entire question of military necessity, but this seems an extraordinarily dubious proposition. Judicial inquiry, with its restrictive rules of evidence, orientation toward resolution of factual disputes in individual cases, and long delays, is ill suited to determine an urgent issue. The necessity for prompt action was cogently stated by the Court in its Hirabayashi opinion: “Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted.”

A second criticism is that the decisions in these cases upheld a program that, at bottom, was based on racial distinctions. There are several levels at which this criticism can be made. The broadest is that the nisei were relocated simply because the Caucasian majority on the West Coast (and in the country as a whole) disliked them and wished to remove them as neighbors or as business competitors. The Court’s answer to this attack seems satisfactory: Those of Japanese descent were displaced because of fear that disloyal elements among them would aid Japan in the war. Though there were undoubtedly nativists in California who welcomed a chance to see the issei and the nisei removed, it does not follow that this point of view was attributable to the military decisionmakers. They, after all, did not at first propose relocation.

But a narrower criticism along the same line has more force to it: The nisei were evacuated notwithstanding the fact that they were American citizens. Even in wartime citizens may not be rounded up and required to prove their loyalty. They may be excluded from sensitive military areas in the absence of a security clearance and otherwise be denied access to any classified information, but it pushes these propositions to an extreme to say that a sizable geographic area, including the homes of many citizens, may be declared off-limits and the residents forced to move. It pushes it to an even greater extreme to say that such persons may be required not only to leave their homes but to report to and remain in a distant relocation center.

The Supreme Court in its Hirabayashi opinion pointed to several facts thought to justify this treatment of the nisei. Both federal and state restrictions on the rights of Japanese emigrants had prevented their assimilation into the Caucasian population and had intensified their insularity and solidarity. Japanese parents sent their children to Japaneselanguage schools, and there was some evidence that these were a source of Japanese nationalistic propaganda. As many as ten thousand American-born children of Japanese parentage went to Japan for all or a part of their education. Thus, as Stone put it in his opinion, “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 . . .”

There is considerable irony, of course, in relying on previously existing laws discriminating against Japanese immigrants to conclude that still further disabilities should be imposed upon them because they had not been assimilated into the Caucasian majority. But in time of war a nation may be required to respond to a condition without making a careful inquiry into how that condition came about.

Were the condition or conditions described by the Court sufficient to justify treating the nisei differently from all other citizens on the West Coast? Under today’s constitutional law, certainly not. Any sort of “racial” classification by government is viewed as suspect, and an extraordinarily strong reason is required to justify it.