Academic journal article Law and Contemporary Problems

The Japanese American Cases, 1942-2004: A Social History

Academic journal article Law and Contemporary Problems

The Japanese American Cases, 1942-2004: A Social History

Article excerpt

This essay addresses--and attempts to explain--the changing reactions (or, in some cases, the lack of reaction) by the government and by the public to the incarceration of the Japanese Americans of the West Coast during World War II and in the six decades since then. The legal literature about the cases is vast and will not be recapitulated at any length here.

I

THE LAW'S DELAY

The Japanese American cases arose from actions taken by the federal government stemming from President Franklin D. Roosevelt's Executive Order 9066, issued on February 19, 1942. (1) Even before the process of incarcerating Japanese American citizens began in March 1942, government attorneys in both the War Department and the Department of Justice feared that federal judges would consider the process unconstitutional. (2) These fears, alas, were largely chimerical. As had been the case in many previous national crises--and has been the case since--the judiciary was more solicitous about what it conceived to be the safety of the state than about the civil liberties of its citizens. Although the presidential Commission on the Wartime Relocation and Internment of Civilians (CWRIC) focused primarily on the actions of the executive and legislative branches, its 1982 conclusion that the broad historical causes shaping the decisions about Japanese Americans--"race prejudice, war hysteria and a failure of ... leadership"--may confidently be applied to the judiciary as well. (3)

The Japanese American cases, so-named by Eugene V. Rostow in 1945, were brought by four young Nisei who did not know one another. Three of them--Minoru Yasui, Gordon K. Hirabayashi, and Mitsuye Endo--deliberately challenged the federal government's plot to deprive them of their liberty. The fourth, Fred T. Korematsu, initially went into hiding and agreed to be the focus of a test case only after his apprehension by the FBI. A number of other Japanese Americans had taken similar evasive action with similar results. The government, anxious to avoid court challenges, merely filed complaints against such persons and usually hustled them off to "Assembly Centers" or "Relocation Centers." Attorney Ernst Besig, trolling in Bay Area jails for a candidate for a test case, found three. Two turned him down; but he found his man in Fred Korematsu. (4)

Even in the first legal skirmishes, few federal judges looked askance at the government's treating Japanese American citizens as if they were aliens. In the case of Minoru Yasui, which involved only curfew regulations promulgated by Gen. John L. DeWitt, Oregon Federal District Judge James Alger Fee (1888-1959) held that the general's order was "void as respects citizens." Judge Fee nevertheless ruled that Yasui, who was at the time of Pearl Harbor employed by the Japanese consulate in Chicago, had by virtue of that employment chosen "allegiance to the Emperor of Japan," despite Yasui's birth in Oregon, his membership in the bars of that state and Illinois, and his commission as a lieutenant in the U.S. Army Reserve. (5) This decision was affirmed by the Supreme Court on June 21, 1943, (6) and his case was remanded to Fee, who expunged his earlier remarks about citizenship from his revised opinion in obedience to the court's decision in Hirabayashi v. United States. (7)

More typical was the performance of Northern California Federal District Court Judge Michael J. Roche (1878-1964), who received a habeas corpus petition from Mitsuye Endo's attorney, James Purcell, on July 12, 1943, asking that his client, by then incarcerated by the War Relocation Authority in the camp at Tule Lake, be released. Roche heard argument on the petition eight days later, but held the petition for 356 days before denying it on July 3, 1943, without giving any reasons for either his delay or his action. (8) This occurred just 13 days after the Supreme Court had decided the case of Gordon Hirabayashi.

By June 1943, not only had the tide of battle clearly turned against Japan in the Pacific, but five months previously, President Roosevelt, supporting the formation of an all-Japanese American military unit, had written, "No loyal citizen of the United States should be denied the democratic right to exercise the rights of citizenship. …

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