Military Curfew, Race-Based Internment, and Mr. Justice Rutledge

Abstract

Military Curfew, Race-Based Internment, and Mr. Justice Rutledge JOHN M. FERREN The story is well known. A few months after Pearl Harbor, a curfew was imposed on West Coast residents of Japanese ancestry, including American citizens. Then they were confined at internment camps around the country. This tragic episode continues to generate scrutiny, including three new books last year.1 But there is at least one story, as yet untold, that will be of particular interest to students of the Supreme Court. Why did Justice Wiley Rutledge, the Court’s newest member, who was known for his unyielding allegiance to civil liberties,join the majority in allowing internment? First, the curfew case, then a little about Rutledge, and finally the internment story. In June 1943, in Hirabayashi v. United States,2 the Court resolved criminal charges against Gordon Hirabayashi, an American citizen and university student born to Japanese immi­ grants in Seattle. He had been convicted ofvio­ latingtwo orders issuedinthe spring of 1942 by LieutenantGeneral John L. DeWitt, the Pacific Coast military commander, in furtherance of a presidential Executive Order approved by Congress. One DeWitt order imposed a curfew on everyperson ofJapanese ancestrywho lived within large coastal sections of California, Oregon, and Washington that the general des­ ignated as “military areas.” A second series of orders, called “exclusion orders,” required all such persons to leave their homes and report to an assembly center as a “preliminary step” to relocation and internmentby the government.3 Hirabayashi contended that Congress un­ constitutionally had delegated to the mili­ tary commander its legislative authority to impose the curfew, and that in any event the Fifth Amendment prohibited discrimina­ tion “between citizens of Japanese descent and those of other ancestry.”4 In rejecting the first argument, Chief Justice Harlan Fiske Stone wrote for a unanimous Court that Congress itselfhad “contemplated and autho­ rized” DeWitt’s curfew order as a means for enforcing the President’s Executive Order, and MILITARY CURFEW, RACE-BASED INTERNMENT 253 Less than four months after the surprise Japanese attack on Pearl Harbor (pictured), a curfew was imposed on West Coast residents of Japanese ancestry, including American citizens. The curfew was followed by an order to confine them to internment camps. thus that “no unlawful delegation of legislative power” had occurred.5 As to the discrimination issue, Stone again spoke for all the Justices. Congress and the President, he wrote, had a “wide scope” for ex­ ercising their “judgment and discretion” over the “choice of means” for implementing the war power. Thus, “at a time of threatened air raids and invasion by the Japanese forces,” the Court should evaluate Hirabayashi’s Fifth Amendment rights under a highly deferential test, namely: whether in the light ofall the facts and circumstances there was any substan­ tial basis for the conclusion... that the curfew as applied was a pro­ tective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reason­ ably be expected to aid a threatened enemy invasion.6 Even though the Fifth Amendment con­ tained no equal protection clause, Stone con­ ceded, legislative discrimination based on race alone might be serious enough to violate due process. But given the “facts and circum­ stances” in this “particular war setting,” he concluded, “[we] cannot close our eyes to the fact, demonstrated by experience, that in time ofwar residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ances­ try.” Stone wrote that espionage by persons 254 JOURNAL OF SUPREME COURT HISTORY Soldiers posted the Cur­ few Order in Bainbridge Island, Washington on March 24, 1942. sympathetic to the Japanese government had been “particularly effective in the surprise at­ tack on Pearl Harbor,” that of the “126,000 persons of Japanese descent in the United States,” approximately 112,000 were concen­ trated around Seattle, Portland, and Los An­ geles, and that “social, economic and political conditions”—code words for legalized racial discrimination of various sorts—had “inten­ sified their solidarity” and “in large measure prevented their assimilation.” This solidarity, observed Stone, was evidenced by the atten­ dance of many children of Japanese parents at...