When The Laws Were Silent

Were the conditions described by the Court sufficient to justify different treatment of the nisei? Under today’s constitutional law, certainly not.

The most frequently made charge on behalf of the issei is that the government treated Japanese enemy aliens differently from enemy aliens of German or Italian citizenship when we were at war with all three countries. It appears that there was some removal of Italian enemy aliens for a brief period, but there seems little doubt that the West Coast issei were treated differently from the majority of German or Italian nationals residing in this country. It should be pointed out, however, that there does not appear to have been the same concentration of German or Italian nationals along the West Coast in areas near major defense plants. Japanese emigration to the United States had occurred only within the preceding half-century, and the emigrants resided almost entirely on the West Coast, where U.S. aircraft production was highly concentrated and where attack and possibly invasion were at first feared. Italian emigration had taken place over a considerably longer period, and German since colonial days, and people of German and Italian ancestry were far more spread out in the population in general than were the issei.

These distinctions seem insufficient to justify such a sharp difference of treatment between Japanese and German and Italian aliens in peacetime. But they do seem legally adequate to support the difference in treatment between the two classes of enemy aliens in time of war.

An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense this question is very largely academic. There is no reason to think that future wartime Presidents will act differently from Roosevelt or that future Justices of the Supreme Court will decide questions differently from their predecessors. But even though this be so, there is every reason to believe that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that the courts will pay more careful attention to the basis for the government’s claims of necessity as a reason for curtailing civil liberty. The laws will thus not be silent in time of war, even though they will speak with a somewhat different voice.