Righting a Historic Wrong

One of the most shameful actions of recent U.S. history was the forced internment during World War II of more than 110,000 Americans of Japanese ancestry living on the West Coast. A handful of them--Fred T. Korematsu, Minoru Yasui and Gordon K. Hirabayashi--protested the policy at the time as unconstitutional and were arrested and convicted for violating the internment orders. In 1943 and 1944, their convictions were upheld by the United States Supreme Court, which ruled that “pressing public necessity may sometimes justify” restrictions based on race.

Three years ago, Peter H. Irons, a political scientist at UC San Diego, wrote a book, “Justice at War,” that detailed serious government misconduct, including suppression of information that cast doubt on the need for or efficacy of rounding up Japanese-Americans. As a result, federal judges have now reversed the convictions of Korematsu, Yasui and Hirabayashi, the final reversal--Hirabayashi’s--coming last week in Seattle. Justice has finally been done, and those who were forced to relocate should now be paid compensation.

But it is worth considering these cases one more time to ask how such a disgraceful thing happened and why the Supreme Court stood by and let it happen. It’s easy to look back from 1986 and be shocked at what occurred. But in 1942 there was a war on. It had been started by an attack on Pearl Harbor that inflamed deep-seated anti-Asian prejudice. It created a hysteria in which people and courts were willing to trample on the very rights that this country was fighting to protect.

Wars do that to people--and to courts. The U.S. Supreme Court upheld the convictions of the Japanese for refusing to be interned just as an earlier Court, in an earlier time of hysteria, had upheld the convictions of Eugene V. Debs and others for speaking out in opposition to American involvement in World War I. Writing for a unanimous Court in 1919, Justice Oliver Wendell Holmes (yes, Oliver Wendell Holmes) found that Debs’ speech had created a clear and present danger that permitted the freedom of speech to be curtailed. Debs and the others went to prison.

These cases are graphic reminders that judges--even Supreme Court justices--are human beings who live at a certain time and accept the assumptions of that time. Decades later we know that neither Debs’ speech nor Americans of Japanese ancestry presented a danger to the country. But people didn’t know it at the time. Many right-thinking people endorsed the Japanese internment. The government officials who suppressed information undoubtedly thought they were acting in the interest of the country.

The enduring message of these cases is to be extremely cautious of curtailing individual liberties at a time of public hysteria. Of course, it never feels like hysteria when it’s happening. It feels like the appropriate response to a real danger. So courts should exercise extreme caution about curtailing rights at any time, even when the government’s justification seems persuasive.