When The Laws Were Silent


But the law was by no means so clear when these cases were decided. A decade later the Court decided the watershed case of Brown v. Board of Education , holding that the Kansas legislature had violated the Equal Protection Clause of the Fourteenth Amendment by permitting public schools to segregate students by race. And with Brown there was argued a companion case, Boiling v. Sharpe , challenging similarly imposed segregation in public schools in the District of Columbia. This requirement had been imposed not by a state government but by Congress. The Court in Bolling , in a brief opinion not notable for clarity of reasoning, held that the Due Process Clause of the Fifth Amendment imposes on the federal government a limitation similar to that imposed on the states by the Equal Protection Clause of the Fourteenth Amendment. Had this doctrine been the law ten years earlier, the Supreme Court might have found it easier to reach a different result in Hirabayashi and Korematsu .

The discrimination against the nisei lay in the fact that any other citizen could remain in his home unless actually tried and convicted of espionage or sabotage while the nisei were removed from their homes without any individualized findings at all. The proffered justification—that an attack on the West Coast by Japan was reasonably feared and that American citizens of Japanese descent were more likely than the populace as a whole to include potential spies or saboteurs—was not wholly groundless. A May 1941 “Magic intercept,” resulting from the Americans’ having broken the Japanese code, contained a message from the Japanese consulate in Los Angeles that “we also have connections with our second generations working in airplane plants for intelligence purposes.” But although such information might well have justified exclusion of nisei, as opposed to other citizens, from work in aircraft factories without strict security clearance, it falls considerably short of justifying the dislodging of thousands of citizens from their homes on the basis of ancestry.

The issei, however, who were not citizens, were both by tradition and by law in a quite different category. The legal difference dates back to the Alien Enemies Law enacted in 1798 during the administration of President John Adams. The Alien Law is often bracketed together with the Sedition Act passed at the same time, and there is a tendency to think that both were repealed as soon as Thomas Jefferson and his Jeffersonian Republicans came to power in 1801. But only the Sedition Act was repealed; the Alien Enemies Act, with minor amendments, remained on the books at the time of World War II. It provided: “Whenever there shall be a declared war between the United States and any foreign nation or government . . . all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”

In a case decided shortly after the end of World War II, the Supreme Court, referring to the Alien Law, said: “Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practice of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation’s obligations to its foes could ever be put on a parity with those to its defenders. The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a ‘declared war’ exists.” Thus distinctions that might not be permissible between classes of citizens must be viewed otherwise when drawn between classes of aliens.