When The Laws Were Silent

PrintPrintEmailEmailThe entire nation was stunned by the Japanese attack on Pearl Harbor on December 7, 1941, but it seemed much closer to home on the West Coast than elsewhere on the mainland.

Residents became fearful of ethnic Japanese among them. Japanese immigrants had begun to settle on the West Coast shortly before the turn of the century and had not been assimilated into the rest of the population. Under the Naturalization Act of 1790, those who had emigrated from Japan were not able to become citizens; they were prohibited by law from owning land and were socially segregated in many ways. The first generation of Japanese immigrants, the issei, therefore remained aliens. But their children, the nisei, having been born in the United States, were citizens from birth. Californians particularly, including public officials—Gov. CuIbert Olson, State Attorney General Earl Warren, and the mayor of Los Angeles, Fletcher Bowron—began to call for “relocation” to the interior of the country of persons of Japanese ancestry.

At the outbreak of the war the military established the Western Defense Command, which included the coastal portions of California, Oregon, and Washington. Gen. John DeWitt, its senior officer, at first resisted the clamor to remove the Japanese. But state and local public officials were adamant, and they were supported by their states’ congressional delegations. The chorus became more insistent when the Roberts Commission released its report in late January 1942.

On December 18, 1941, President Roosevelt had appointed a body chaired by Owen J. Roberts, an Associate Justice of the Supreme Court, “to ascertain and report the facts relating to the attack made by Japanese armed forces upon the territory of Hawaii on December 7, 1941.” The commission met first in Washington and then went to Hawaii, where the members heard numerous witnesses. The commission found that there had been highly organized espionage in Hawaii: “It has been discovered that the Japanese consul sent to and received from Tokyo in his own and other names many messages on commercial radio circuits. This activity greatly increased towards December 7, 1941. . . . [The Japanese] knew from maps which they had obtained, the exact location of vital air fields, hangars, and other structures. They also knew accurately where certain important naval vessels would be berthed. Their fliers had the most detailed maps, courses, and bearings, so that each could attack a given vessel or field. Each seems to have been given a specified mission.”

In February 1942 a Japanese submarine shelled oil installations near Santa Barbara.The pressure built for forced evacuation. Attorney General Francis Biddle, Secretary of War Henry L. Stimson, and Assistant Secretary of War John J. McCloy were the decision-makers for the two concerned departments. None of them favored relocation at first, but eventually Stimson and McCloy changed their minds in the course of often heated discussions among themselves and their subordinates. Final approval of course rested with the President. On February 11, 1942, McCloy asked Stimson to find out if Roosevelt was willing to authorize the removal of the nisei as well as the issei. Stimson asked to see the President but was told FDR was too busy; a phone call would have to do. “I took up with him the West Coast matter first,” Stimson wrote in his diary, “and told him the situation and fortunately found he was very vigorous about it and told me to go ahead on the line that I had myself thought the best.”

Attorney General Biddle on FDR: “I do not think he was much concerned with the gravity or implications of this step. He was never theoretical about things.”

Then, Stimson wrote in his 1947 memoirs, “mindful of its duty to be prepared for any emergency, the War Department ordered the evacuation of more than a hundred thousand persons of Japanese origin from strategic areas on the west coast. This decision was widely criticized as an unconstitutional invasion of the rights of individuals many of whom were American citizens, but it was eventually approved by the Supreme Court as a legitimate exercise of the war powers of the President. What critics ignored was the situation that led to the evacuation. Japanese raids on the west coast seemed not only possible but probable in the first months of the war, and it was quite impossible to be sure that the raiders would not receive important help from individuals of Japanese origin.”

Biddle, who alone among the high administration officials involved opposed the evacuation, described the situation in these words: “Apparently, the War Department’s course of action had been tentatively charted by Mr. McCloy and Colonel Karl Robin Bendetsen of the General Staff in the first ten days of February. General DeWitt’s final recommendation to evacuate was completed on February 13, and forwarded to Washington with a covering letter the next day. Mr. Stimson and Mr. McCloy did not, however, wait for this report, which contained the ‘finding’ on which their ‘military necessity’ argument to the President was based, but obtained their authority before the recommendation was received. On February 11 the President told the War Department to prepare a plan for wholesale evacuation, specifically including citizens. It was dictated, he concluded, by military necessity, and added, ‘Be as reasonable as you can.’ After the conference the Assistant Secretary reported to Bendetsen: ‘We have carte blanche to do what we want as far as the President is concerned.’” Biddle speculated on Roosevelt’s feelings about the matter: “I do not think he was much concerned with the gravity or implications of this step. He was never theoretical about things. What must be done to defend the country must be done.” Biddle concluded with a remarkably perceptive observation: “Nor do I think that the constitutional difficulty plagued him—the Constitution has never greatly bothered any wartime President. That was a question of law, which ultimately the Supreme Court must decide. And meanwhile—probably a long meanwhile—we must get on with the war.”

Executive Order 9066, authorizing the removal of the ethnic Japanese from the West Coast, was signed by Roosevelt on February 19. Several weeks later Congress passed a law imposing criminal penalties for violations of the order or regulations that might be issued to implement it. First a curfew was imposed on the ethnic Japanese, then they were required to report to relocation centers, and finally they were taken to camps in the interior of California and in the mountain states. There was no physical brutality, but there were certainly severe hardships: removal from the place where one lived, often the forced sale of houses and businesses, and harsh living conditions in the Spartan quarters of the internment centers. As the war progressed, some restrictions were relaxed. Nisei volunteers made up the 442d Combat Team, which fought bravely in Italy against the Germans. Other internees were issued work permits that allowed them to leave the camp. Finally, most of those who were still interned were released by the beginning of 1945, as a result of the third Supreme Court decision in which the relocation policy was challenged.

Gordon Hirabayashi was born near Seattle to issei parents in 1918, and by 1942 he was a senior at the University of Washington. In May 1942 he disobeyed the curfew requirement imposed by military authorities pursuant to the President’s Executive Order, and seven days later he failed to report to register for evacuation. He was indicted and convicted in a federal court in Seattle on two counts of misdemeanor and sentenced to imprisonment for three months on each. He contended that the orders he was charged with violating were unconstitutional, but the federal judge in Seattle ruled against him.

Fred Korematsu, born in the United States to issei parents, was convicted of remaining in San Leandro, California, in violation of a military exclusion order applicable to him. The federal court in San Francisco overruled his claim that the order in question was unconstitutional, suspended his sentence, and placed him on probation for five years.

 

The cases were argued together before the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which has jurisdiction over the Far Western part of the United States. Because of procedural variations, they reached the Supreme Court at different times. The case of Hirabayashi was sent directly there by the court of appeals and was argued in May 1943.

The Chief Justice at the time was Harlan F. Stone, who had been born in New Hampshire and practiced law in New York following his graduation from Columbia Law School, where he later served as dean. Eight months after Calvin Coolidge became President upon Harding’s death in 1923, he appointed Stone Attorney General, with a mandate to clean out the scandal-ridden Department of Justice. Stone obliged and was rewarded by an appointment as Associate Justice of the Supreme Court in 1925. During his sixteen years in that position he was identified as a member of the Court’s liberal wing, along with Justices Holmes, Brandeis, and Cardozo. When Charles Evans Hughes retired as Chief Justice in 1941, Roosevelt appointed Stone his successor.

The senior Associate Justice on the Court at the time that the Japanese internment cases were heard was Owen Roberts, a Philadelphia aristocrat who had mixed a successful private practice with occasional stints in public service. He had been a special prosecutor for the United States in several of the cases that arose out of the Harding administration’s Teapot Dome scandals and was appointed to the Supreme Court by President Herbert Hoover in 1930.

Next in seniority was Hugo Black, who, before his appointment, had been a senator from Alabama. During his two terms in the Senate, Black had been a faithful party wheel horse who had supported every piece of major New Deal legislation, including Roosevelt’s court-packing plan. Immediately after the defeat of that initiative, FDR had the opportunity to make his first appointment to the Court, and he chose Black. There was a public outcry when it was revealed that Black had been a member of the Ku Klux Klan, and the newly minted Justice took to the radio to declare that he’d been in the Klan a long time ago, and only as a matter of political expediency when running for an Alabama political office. He was to serve thirty-four years on the Court and be one of the most influential Justices of the twentieth century.

Stanley Reed was born in Minerva, Kentucky, and practiced law in nearby Maysville from 1910 until he went to Washington in 1929 to be general counsel to the Federal Farm Board and then, in 1932, to the Reconstruction Finance Corporation. Roosevelt named him Solicitor General in 1935 and appointed him to the Supreme Court three years later. Considerably less colorful than some of the other Roosevelt appointees, Reed was often the swing man when the Court split 5 to 4 on philosophical questions.

Next in the line of Roosevelt appointees was Felix Frankfurter. Born in Vienna in 1882, and a professor at Harvard Law School for twenty-five years before being named to the Court in January 1939, Frankfurter was a well-known legal scholar and writer and had been identified with numerous liberal causes, among them the trials of Sacco and Vanzetti in the 1920s. A brightly plumaged bird who never gave up his professional mien in his battles for judicial restraint, he would serve on the Court for more than twenty years.

Justice Murphy circulated the draft of a caustic dissent chastising the Court for approving a program that “utterly subverts” individual rights in war.
 

Less than three months after appointing Frankfurter, Roosevelt had a fourth Court vacancy to fill. He chose the forty-year-old William O. Douglas, a Yale Law School professor and then a member of the Securities and Exchange Commission. Douglas would serve more than thirty-six years as an Associate Justice—the Court’s all-time longevity record—and establish a reputation as a bastion of its liberal wing.

The next year, FDR got yet another opportunity, and this time he picked Frank Murphy, a former governor of Michigan, high commissioner to the Philippines, and briefly the Attorney General of the United States. Murphy would serve only nine years, but that was enough to establish him as a nearly messianic champion of the underdog.

When Roosevelt elevated Stone to Chief Justice in June 1941, he appointed Attorney General Robert H. Jackson to fill the vacancy thus created. Jackson, who came from western New York and had served as both the Solicitor General and Attorney General, was an excellent writer, and his opinions showed it. He left his judicial duties immediately after the end of World War II to become the United States prosecutor at the Nuremberg trials, and his experience there had a profound effect on his judicial philosophy.

The ninth member to hear the Japanese internment cases was Wiley B. Rutledge, also appointed by Roosevelt. Born in Kentucky, he served as a law professor and a judge of the federal court of appeals in Washington before going to the Supreme Court in 1943. He was to serve only six years and during that time joined Murphy as a less fervent, more scholarly champion of the underdog.

The Japanese-Americans were represented in the Supreme Court by able counsel, including Edwin Borchard, William Draper Lewis, Brien McMahon, and Osmond K. Fraenkel. Their basic contention was that the President’s Executive Order was unconstitutional because it proceeded on the basis that an entire racial group was disloyal, rather than being based on any individual determinations of disloyalty. Briefs supporting these petitioners were filed by the American Civil Liberties Union, the Northern California branch of the American Civil Liberties Union, and the JapaneseAmerican Citizens League.

The government in its brief recited in great detail the calamitous military events of the early days of the war—these ranged from the Pearl Harbor raid to the fall of the British stronghold of Singapore—which it thought justified the orders now being challenged, and went on to catalogue the “concentration of war facilities and installations on the West Coast [that] made it an area of special military concern at any time and especially after the sensational Japanese successes.”

The attorneys general of Washington, Oregon, and California filed a brief in support of the government that pointed out that “for the first seven months little occurred to reduce the fear of attack. . . . On June 3, 1942, Dutch Harbor, Alaska, was attacked by carrier-based planes. On June 7, 1942, the Japanese invaded continental North America by occupying the Islands of Attu and Kiska in the Aleutian group. There was an increasing indication that the enemy had knowledge of our patrols and naval dispositions, for ships leaving west coast ports were being intercepted and attacked regularly by enemy submarines.” Following the oral argument and conference in the Hirabayashi case, Chief Justice Stone assigned the task of writing the Court’s opinion to himself. He first greatly narrowed the scope of the opinion by deciding that the Court need pass only on the validity of the curfew requirement and not on the requirement that Hirabayashi report to a relocation center. Hirabayashi had been convicted of both offenses, but his sentences were to run “concurrently”—that is, he would serve only three months in prison even though he had been sentenced to serve three months on each of two different charges. Under established law at that time, if the conviction on one count was upheld, the Court would disregard the conviction on the second count, since it essentially made no difference in the amount of time the defendant would spend in prison. In this case it meant that the Court had to tackle only the easier question of whether a curfew might be imposed, rather than the more difficult one of whether Hirabayashi could be sent to an internment camp.

 

Stone’s task in writing the opinion was not an easy one, because several of his colleagues insisted that there be little or no opportunity to challenge the order later, while Justices Douglas, Murphy, and Rutledge wanted explicitly to leave open that possibility. Indeed, Murphy circulated a draft of a caustic dissent that chastised the Court for approving a program that “utterly subverts” individual rights in war. Douglas circulated a concurrence in which he indicated his view that at some point a person interned under the program should have an opportunity to prove his loyalty. Murphy finally turned his draft dissent into a concurrence but said in it that he thought the program “goes to the very brink of constitutional power.” Rutledge also filed a brief concurrence.

Stone’s opinion for the Court borrowed a definition of the government’s war power from a statement made by Charles Evans Hughes—not while he was a member of the Court but in an article in the American Bar Association Journal : The war power of the national government is “the power to wage war successfully,” and it was “not for any court to sit in review of the wisdom of their [the Executive’s or Congress’s] actions, or to substitute its judgment for theirs.” If the Court could say there was a rational basis for the military decision, it would be sustained.

Stone’s opinion then adduced the facts—most of which had been set forth in the government’s brief —that showed the threat by the Japanese Navy to the Pacific Coast immediately after the Pearl Harbor bombing. It went on to say: “Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”

The Court, of course, had to respond to the charge that distinctions based on race alone were not permitted under the Constitution: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. . . . We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. . . . The fact alone that the attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan.” Stone’s opinion upholding the curfew was joined by five of his colleagues. Douglas, Murphy, and Rutledge, while voting to uphold the curfew, wrote separately.

Korematsu’s case did not come on for argument until October 1944. Here the Court was required to confront not merely the curfew but the far more draconian relocation requirement. The Court upheld relocation, in an opinion by Justice Black, basing its reasoning largely on the earlier decision. This time, however, there were separate dissents by Justices Roberts, Murphy, and Jackson.

The flavor of Black’s opinion is caught in its concluding passage: “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily. . . . There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.”

Murphy criticized the military for lumping together with a disloyal few of Japanese ancestry all the others against whom there had been no such showing. Jackson said that the Court was simply in no position to evaluate the government’s claim of military necessity: “In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved . . . . Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”

But in the case of Endo , argued and decided at the same time as Korematsu , the Court reached quite a different result. Mitsuye Endo had submitted to an evacuation order and been removed first to the Tule Lake Relocation Center in the Cascade Mountains just south of the CaliforniaOregon border and then to another relocation center in Utah. She sued out a writ of habeas corpus, claiming that she was a loyal citizen against whom no charge had been made and that she was therefore entitled to her relief. The government agreed that she was a loyal citizen and not charged with any offense. The Court decided that under these circumstances Endo was entitled to be released from confinement. The presidential order and the act of Congress confirming it spoke of evacuation from a military zone but said nothing of detention after the evacuation. While the initial evacuation had been justified in terms of the defense facilities on the West Coast, the detention of a loyal person of Japanese ancestry after the evacuation had taken place was not reasonably necessary to prevent sabotage or espionage. Two members of the Court wrote separately, but all agreed with the result.

 

Although the Court based its reasoning in Endo on the provisions of the act of Congress and the Executive Order, and therefore Congress and the President would have been free to change those to provide for detention, the Court’s opinion strongly hinted at constitutional difficulties if that were to be done. And, it should be noted, the military position of the United States was much more favorable in the fall of 1944 than it had been in the spring of 1942. In the Pacific the U.S. Navy won the Battle of Leyte Gulf in October, and American forces were moving steadily closer to the Japanese homeland. There was neither a military need nor a public demand for further restrictions on Americans of Japanese descent, and the entire program was promptly terminated only two weeks after the decision in the Endo case.

In defense of the military, it should be pointed out that these officials were not entrusted with the protection of anyone’s civil liberty.

There is a certain disingenuousness in this sequence of three opinions— Hirabayashi , Korematsu , and Endo . There was no reason to think that Gordon Hirabayashi and Fred Korematsu were any less loyal to the United States than was Mitsuye Endo. Presumably they would have been entitled to relief from detention upon the same showing as that made by Endo. But even had Hirabayashi tried to raise that question in his case, he would have failed, for the Court chose to confine itself to the curfew issue. It was not until we were clearly winning the war that the Court came around to this view in Endo . The process illustrates in a rough way the Latin maxim Inter arma silent leges (in time of war the laws are 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.

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.

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.

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.