A People's History of the Supreme Court

by Peter Irons

  Taking a closer look at events we “know” through history books can be surprising. One surprise about the wartime treatment of Japanese Americans is that the initial reaction in the area most stricken with “Pearl Harbor panic” was one of tolerance and understanding. Most of the “thousands of Japanese here and in other coast cities,” the Los Angeles Times editorialized on December 8, 1941, were “good Americans, born and educated as such.” Published in the city with the largest number of Japanese Americans, this influential paper urged its readers that “there be no precipitation, no riots, no mob law”. The Times editors tried to calm fears of a follow-up Japanese attack on West Coast targets. “Let’s Not Get Rattled,” they cautioned on December 10. It would be virtually impossible for Japanese aircraft carriers to “sneak up on this Coast undetected by our now aroused sky scouters,” they assured a jittery public. Echoed by other prominent West. Coast papers, such assurances helped to calm public fears and protected Japanese Americans from retaliation.

  Some six weeks after Pearl Harbor, however, the tide of public opinion abruptly shifted. Both the press and public officials demanded the removal of all Japanese Americans from the West Coast. On January 16, 1942, Los Angeles congressman Leland Ford urged that “all Japanese, whether citizens or not, be placed in inland concentration camps.” Two weeks later the Los Angeles Times reversed its editorial stance and argued that “the rigors of war demand proper detention of Japanese and their immediate removal from the most acute danger spots” along the coast. Walter Lippmann, the nation’s most respected columnist, deplored “the unwillingness of Washington to adopt a policy of mass evacuation and mass internment” of Japanese Americans. “Nobody’s constitutional rights include the right to reside and do business on a battlefield,” he wrote like a judge. Westbrook Pegler issued another ruling in his widely read column: “The Japanese in California should be under armed guard to the last man and woman right now—and to hell with habeas corpus until the danger is over.”

  The growing force of demands like these hit Washington like a tidal wave. Officials in the War and Justice Departments ended their squabbling over legal niceties and sent a two-page document to the White House. On February 19, 1942, President Franklin Roosevelt signed Executive Order 9066, authorizing Secretary of War Henry L. Stimson and his subordinates to designate military zones “from which any or all persons may be excluded.” General John L. DeWitt the West Coast army commander, first imposed a nighttime curfew on “all persons of Japanese, ancestry” and then issued “exclusion orders” that were backed by Congress with criminal penalties. By the end of 1942, all but a handful of the Japanese Americans who lived between Seattle and San Diego had been herded into ten “relocation centers,” the government’s euphemism for America’s wartime concentration camps. Scattered from the California desert to Arkansas swamps, these camps imprisoned more than 110,000 people—most of them native-born American citizens—who were never charged with crimes or given a hearing.

  Behind the initial appeals for tolerance after Pearl Harbor lay decades of intolerance toward Orientals of any nationality. The arrival of Chinese laborers in the 1850s to lay railroad track and pick vegetables produced resentment among Caucasian workers, many of them also recent immigrants. With congressional passage in 1882 of the Chinese Exclusion Act, nativist groups turned their demogaguery against the Japanese, who numbered only two thousand in 1890, almost all in California. But the flow increased until Congress shut off all further Japanese immigration in 1924, by which time more than 100,000 lived on the West Coast. Japanese natives were excluded from citizenship and barred in California from owning or leasing land.

  Despite these legal barriers, Japanese Americans worked hard and prospered. Many found ways around the Alien Land Law and operated farms owned by friendly whites, or bought land in the names of their native-born children, granted citizenship at birth by the Fourteenth Amendment. By 1940, Japanese farmers produced close to half of California’s vegetables. Leaders of the Grower-Shipper Vegetable Association, a powerful lobby of white farmers, took advantage of “Pearl Harbor panic” to cut down their competitors. “We’re charged with wanting to get rid of the Japs for selfish reasons,” the group’s manager said. “We might as well be honest. We do.”

  Another group was less honest in its campaign to rid the coast of Japanese Americans. Military officials made claims of widespread “sabotage and espionage” in arguing for mass internment. But they had no evidence that any Japanese American had committed such crimes. They were not deterred by this fact. In the “Final Recommendation” he sent to Secretary Stimson, urging mass internment, General DeWitt blamed this lack of evidence against Japanese Americans on their sneaky nature: “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken,” he claimed. DeWitt’s support for internment was really based on unvarnished racism. “The Japanese race is an enemy race,” he stated, “and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,’ the racial strains are undiluted.” DeWitt used blunter language before a congressional panel: “A Jap’s a Jap,” he said; “it makes no difference whether he is an American citizen or not. I have no confidence in their loyalty whatsoever.”

  General Dewitt was hardly alone in basing his wartime decisions about Japanese Americans on racial stereotypes. DeWitt had no legal training, but many military and civilian officials who attended prestigious law schools showed little respect for the Constitution they had sworn to uphold as lawyers. One of the first and most influential advocates of mass internment was Colonel Karl Bendetsen, a Stanford Law School graduate who drafted General DeWitt’s “Final Recommendation” for the evacuation of Japanese Americans. Admitting in February 1942 the army’s inability to justify “the sheer military necessity for such action,” Bendetsen nonetheless argued that “a substantial majority” of Japanese Americans “bear allegiance to Japan, are well controlled and disciplined by the enemy, and at the proper time will engage in organized sabotage” to aid the Japanese cause. He presented no evidence for this claim, simply asserting that the “racial affinities” of Japanese Americans predisposed them to disloyalty.

  Even those officials with qualms about the constitutional basis for mass internment fell prey to racial stereotypes. During the internal debate that preceded President Roosevelt’s executive order, even General DeWitt acknowledged the legal barriers to the military orders he later signed. “An American citizen, after all, is an American citizen,” he reminded the army’s chief lawyer. At the War Department’s very top, Secretary Henry Stimson—a Harvard lawyer—knew the Constitution stood in Dewitt’s way. “We cannot discriminate against our citizens on the ground of racial origin,” he admitted before DeWitt’s “Final Recommendation” reached his desk. But after reading its racist claims, Stimson agreed that “their racial characteristics are such that we cannot understand or trust even the citizen Japanese.” He backed mass internment even though “it will make a tremendous hole in our constitutional system.” Perhaps the most revealing—and cynical—remark came from John J. McCloy, another Harvard lawyer who served as Stimson’s chief deputy. “To a Wall Street lawyer,” he told an army official, “the Constitution is just a piece of paper.”

  Many civilian officials shared the racial views of their military counterparts. Attorney General Francis Biddle asked three young government lawyers to advise him on the internment question. All three—Benjamin Cohen, Oscar Cox, and Joseph Rauh—were trained at Harvard Law School. None had any training in anthropology, but this did not deter them. “Since the Occidental eye cannot readily distinguish one Japanese resident from another,” they told Biddle, “effective surveillance of the movement of particular Japanese residents suspected of disloyalty is extremely difficult if not impossible.” As Caucasians, Biddle’s legal advisers considered it unnecessary “to bar the millions of persons of Ger
man or Italian stock from either seacoast area,” since “the normal Caucasian countenances of such persons enable the average American to recognize particular individuals by distinguishing minor facial characteristics.” None of these lawyers had ever met Gordon Hirabayashi, Min Yasui, or Fred Korematsu, whose faces were easily distinguishable to anyone with normal vision. Biddle’s legal adviser recommended setting aside “special reservations” where Japanese Americans could “live under special restrictions.”

  Perhaps the most extreme version of the “racial characteristics” argument was presented in a brief submitted to a federal district judge by Charles Burdell, a special assistant to Attorney General Biddle. Urging the judge to dismiss a constitutional challenge to the army’s internment orders, Burdell wrote that “Jap citizens are inevitably bound, by intangible ties, to the people of the Empire of Japan. They are alike, physically and psychologically.” Burdell elaborated his genetic theory of loyalty. “Even now, though we have been separated from the English people for over 100 years, we still take pride in the exploits of the RAF over Berlin, and the courageous fighting of the Aussies in Northern Africa. Why? Because they are people like us. They are Anglo-Saxons.” Burdell’s theory equally fit the Japanese Americans. “Who can doubt that these Japs in this country, citizens as well as aliens, feel a sense of pride in the feats of the Jap Army—this feeling of pride is strong in some, weak in others, but the germ of it must be present in the mind of every one of them.”

  What feelings did go through the minds of the three young men whose challenges to General DeWitt’s military orders reached the Supreme Court ? Much like Dred Scott and Homer Plessy before them, these young Americans were viewed by the Supreme Court solely on the basis of their shared race and ancestry. But their stories, even briefly told, show us how members of the same group—supposedly identical in their physical and psychological characteristics—can differ in many ways.

  Gordon Hirabayashi was born in 1918 in Auburn, a rural town near Seattle, where his father ran a roadside fruit market. His parents belonged to a Japanese pacifist sect, similar to the Society of Friends, better known as Quakers; both groups worshiped without ministers and rejected military service. During high school, Gordon became an Eagle Scout and served as president of the Auburn Christian Fellowship. When he entered the University of Washington in Seattle in 1937, he joined the University Quaker Meeting and registered with his local draft board as a conscientious objector. When General DeWitt imposed a nighttime curfew order on all Japanese Americans in March 1942, Gordon was living in the campus YMCA dormitory. He obeyed the curfew for more than a month, often running back to his dorm to beat the clock. He later recalled thinking, “Why the hell am I running back? Am I an American or not ? Why am I running back and nobody else is?”

  On the night of May 4, Gordon stopped running and stayed out past the curfew hour. He recorded his feeling in his diary: “Peculiar, but I received a lift—perhaps it is a release—when I consciously break the silly old curfew.” The army’s evacuation orders gave Japanese Americans one week to dispose of their property and report to “assembly centers” at racetracks and fairgrounds. Before the orders reached Seattle, Gordon worked with the Quakers in helping families store, their household goods and move with suitcases to the Puyallup Fairgrounds near Seattle. “Gosh!—something seems wrong there; helping people to go behind barbed wires and flimsy shacks,” he wrote. “What a mixed-up life this is—the American way.”

  When the evacuation orders reached Seattle on May 16, Gordon became a conscientious objector to internment. He went to the downtown FBI office and told Special Agent Francis Manion that he would not report to Puyallup. Manion recorded Gordon’s statement that “it was the principle of the Society of Friends that each person should follow the will of God according to his own convictions and that he could not reconcile the will of God, a part of which was expressed in the Bill of Rights and the United States Constitution, with the order discriminating against Japanese aliens and American citizens of Japanese ancestry.” Agent Manion arrested Gordon for violating both the curfew and evacuation orders and placed him in the country jail to await trial.

  Minoru Yasui, did not share Gordon Hirabavashi’s pacifism. Born in 1916 in the apple-growing region of Hood River, Oregon, he entered the University of Oregon in 1933 and volunteered for the army’s reserve officer training program. After receiving a second lieutenant’s commission in 1937, Min attended the university’s law school, graduating in 1939. His law dean later wrote that he held a “relatively high opinion” of Yasui as a student, “but on many occasions I detected a streak of blind stubbornness in him.” Unable to find legal work in Oregon, Min landed a job with the Japanese consulate in Chicago. His work was mostly clerical, but he also gave speeches defending Japanese policies in Asia before Rotary Clubs and similar groups. As an American citizen, he duly registered with the State Department as a foreign agent.

  The day after Pearl Harbor, Min received a telegram from his father: “Now that this country is at war and needs you, and since you are trained as an officer, I as your father urge you to enlist immediately.” Responding to this patriotic appeal, he resigned his consular post and returned to Oregon. Min then received an army order to report for duty at Fort Vancouver, near Portland. But when he arrived in uniform, army officers told him he was unacceptable for service and ordered him off the base. This rebuff on racial grounds triggered a stubborn reaction; Min returned eight times to Fort Vancouver and was turned away each time.

  Even before the evacuation orders reached Portland, Min decided to challenge the curfew, imposed by General DeWitt through Military Order Number 3 of the army’s Western Defense Command. Min had no quarrel with a curfew applied to aliens. “But Military Order Number 3 applied to all persons of Japanese ancestry,” he later said. “I said, ‘There the general is wrong, because it makes distinctions between citizens on the basis of ancestry.’ That order in fringed my right as a citizen.” The night of March 28, 1942, Min approached a policeman in downtown Portland. ”I pulled out this order that said all persons of Japanese ancestry must be in their place of abode, and I pulled out my birth certificate and said, ‘Look, I’m a person of Japanese ancestry, arrest me.’ And the policeman said, ‘Run along home, you’ll get in trouble.’ ” Min stubbornly persisted, finally convincing a sergeant at police headquarters to arrest him for curfew violation. He spent nine months in solitary confinement before his trial.

  Fred Korematsu did not challenge the internment from religious conviction or legal training. Unlike Gordon Hirabayashi and Min Yasui, he did not court arrest. In fact, Fred tried to evade the evacuation orders by changing his name, altering his draft card, and undergoing plastic surgery on his eyelids and nose. But his effort to escape detection as a Japanese American failed. On the afternoon of May 30, 1942, police officers in San Leandro, California, got a tip and picked up a young man walking down the street with his girlfriend. The suspect claimed to be Clyde Sarah, of Spanish-Hawaiian origin. But his story quickly fell apart; he spoke no Spanish, and his draft card had been crudely altered with ink eradicator. The officers took him to police headquarters. “One of the girls who worked in the office seemed to recognize me,” Fred recalled, “and so I finally said who I was.”

  Born in 1919 in Oakland, California, Korematsu finished high school in 1938 and dropped out of college after one month for financial reasons. He then attended welding school in Oakland and worked as a shipyard welder following this training. The navy turned him away in June 1941 because of gastric ulcers, and his union expelled its Japanese American members after Pearl Harbor. Fred took piano lessons from an Italian woman and fell in love with her daughter. After his arrest, he told an FBI agent what he did after his family reported to the Tanforan Racetrack for evacuation: “I stayed in Oakland to earn enough money to take my girl with me to the Middle West. Her name is Miss Ida Boitano. She is a different nationality—Italian. The operation was for the purpose of changing m
y appearance so that I would not be subjected to ostracism when my girl and I went East.” Fred never saw Ida again; FBI agents reported that she answered Fred’s letters from jail by “telling him not to write her anymore.”

  Fred Korematsu did not volunteer to challenge the evacuation orders, but he eagerly accepted legal help from Ernest Besig, the ACLU director in San Francisco. The city’s newspapers had reported Fred’s arrest, and Besig visited him in jail. He was pleased to find a willing client for a test case. Behind his personal reasons for evading the evacuation, Fred shared with Gordon Hirabayashi and Min Yasui an awareness of his constitutional rights. During a jailhouse visit, he gave Ernest Besig a handwritten statement arguing that Japanese Americans “should have been given a fair trial in order that they may defend their loyalty at court in a democratic way but they were placed in imprisonment without a fair trial!” He posed this quesiton to the government: “Is this a racial issue?” And he suggested a way to find the answer: “Fred Korematsu’s Test Case may help.”

  Despite the differing motivations of the “test case” defendants, their criminal trials in federal district courts were uniformly brief and perfunctory, Judge Lloyd Black, who presided at Gordon Hirabayashi’s trial in Seattle, rejected his lawyers’ claims that General DeWitt’s curfew and evacuation orders violated the Due Process Clause of the Fifth Amendment by singling out a racial group for “special restrictions” not imposed on others. Noting the proximity of aircraft plants and naval bases to Seattle, Black pointed to “the fact that the parachutists and saboteurs, as well as the soldiers, of Japan make diabolically clever use of infiltration tactics. They are shrewd masters of tricky concealment among any who resemble them. With the aid of any artifice or treachery they seek such human camouflage and with uncanny skill discover and take advantage of any disloyalty among their kind.” Judge Black directed the jurors to convict Gordon, which they did after just ten minutes of deliberation.