I thought looking at the Hirabayashi v. United States case might serve as a strong reminder of the questionable decisions the United States has historically made during times of war. The Hirabayshi case, which you can learn about below, was overturned in 1987. This excerpt was found using Oxford Reference Online and originally appeared in The Oxford Guide to United States Supreme Court Decisions.
Hirabayashi v. United States, 320 U.S. 81 (1943), argued 10 and 11 May 1943, decided 21 June 1943 by vote of 9 to 0; Stone for the Court, Douglas and Murphy concurring in separate opinions with the result; Rutledge concurring in a separate opinion with the Court’s opinion.
At the beginning of World War II officials expressed concern about the presence of approximately 112,000 Japanese-Americans on the West Coast. At the urging of General John L. DeWitt of the Western Defense Command and numerous state and national officials, President Franklin D. Roosevelt on 19 February 1942 signed Executive Order no. 9066, empowering the secretary of war to create “military areas” from which civilians might be excluded. On 18 March Roosevelt established the War Relocation Authority for the purpose of interning all West Coast Japanese-Americans. Congress unanimously passed legislation implementing these executive orders.
General DeWitt subsequently imposed an 8:00 P.M. to 6:00 A.M. curfew for West Coast Japanese-Americans, prohibited Japanese-Americans from moving out of his defense command, and then prohibited Japanese-Americans from remaining within his command. They could neither leave their homes nor stay in them; instead they had to report to civilian control, or assembly, centers. From these centers the Japanese-Americans were evacuated to “relocation camps,” where most remained until 1945.
Gordon Hirabayashi, an American-born citizen of Japanese ancestry and a senior at the University of Washington, intentionally violated the curfew and the order to report to a civilian control center. Hirabayashi believed if he obeyed the curfew and exclusion orders “he would be waiving his rights as an American citizen”(p. 81). Convicted on both counts, the court sentenced him to concurrent three-month sentences. On appeal the Supreme Court upheld the conviction for the curfew violation, and because of the concurrent sentences, refused to consider the constitutionality of the order to report to the assembly center.
Speaking for the Court, Chief Justice Harlan F. Stone argued that Congress and the president could constitutionally impose a curfew under the “power to wage war successfully”(p. 93). The big question, however, was whether Japanese-Americans, as a group, could be singled out for the curfew.
Stone noted that Japanese immigrants were ineligible for United States citizenship, that under Japanese law American-born children of Japanese immigrants were considered to be citizens of Japan and that “social, economic and political conditions” in the nation had “in large measure prevented their assimilation as an integral part of the white population”(p. 96). He pointed out that large numbers of Japanese-American children had been “sent to Japanese language schools” and that some of these schools were “generally believed to be sources of Japanese nationalistic propaganda …”(p. 97). There had, Stone observed “been relatively little social intercourse between them and the white population”(p. 98).
Stone felt “Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions” and that “those charged with … the national defense” could “take into account” these factors in “determining the nature and extent of the danger of espionage and sabotage, in the event of an invasion or air raid attack”(pp. 98–99). The Court could not “reject as unfounded” the military and congressional judgment “that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained”(p. 99).
Stone agreed that “racial discriminations are in most circumstances irrelevant” but argued that “in dealing with the perils of war, Congress and the Executive” could take “into account those facts which are relevant to measures for our national defense … which may in fact place citizens of one ancestry in a different category from others”(p. 100). In upholding the curfew, Stone specifically declared that the Court was not considering whether more drastic measures would be permissible.
Although a unanimous decision, Justices William O. Douglas, Wiley Rutledge, and Frank Murphy qualified their support and sought to narrow the scope of the decision. Murphy’s concurrence reads more like a dissent. He noted that this was “the first time” the court had ever “sustained a substantial restriction of the personal liberty of citizens of the United States based on the accident of race or ancestry.”Murphy believed the internment bore “a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe” and went “to the very brink of constitutional power” (p. 111).