The Japanese Internment, the Constitution, and Our Present Predicament

While it was largely forgotten in the immediate aftermath of the Second World War, in recent decades the internment of Japanese-Americans during that war has become one of the most regularly discussed (or, at least, one of the most regularly taught to students) issues related to the war. It is often used by individuals of a certain temperament and character to prick the balloon of “good war” mythology which has sprung up around World War Two.

Some have gone to somewhat insane lengths to make this point, for reasons that are there own. One suggested “lesson plan” for High School teachers suggests that they have their students, “create a chart comparing Japanese-American internment and Nazi concentration camps. ” While it is certainly possible that such an exercise could be extremely useful in contrasting relatively benign American actions with horrific Nazi ones, knowing what I do about the state of present-day public schools, I very much doubt if that is the intent.

It is my belief that the internment of Japanese-Americans during the War was Constitutional in principle, but that it was often conducted in an extra-legal and extra-constitutional fashion, the excesses of which are only partially mitigated by the war situation as it existed at the time. This was also, as it happens, roughly what the Supreme Court ultimately decided.

Ruling in Ex Parte Mitsuye Endo 323 U.S. 283 (1944) the Supreme Court declared that:

A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.

I’ve cited these words before, in discussing the corrective power of American democracy noting that, “once the emergency had passed, (the system) corrected its abuses .” This, however, makes a second point, one which is of even greater importance: the court explicitly did not rule that such detentions were, in principle, unconstitutional but rather that these specific detentions had been carried out in such a manner which exceeded the powers of the War Relocation Authority. In fact, in ruling upon the case, the court explicitly declined to take up the Constitutional issues which had been raised by counsel for Mitsuye Endo, noting that, “in reaching that conclusion we do not come to the underlying constitutional issues which have been argued. ”

Naturally, some will find it to be particularly alarming that I, the descendent of people who were actually interned during the war (though, admittedly, in Canada and not the United States) would defend these actions in any way. In modern textbooks the Japanese internment is often used to indict American “racism” and to condemn the United States (or Canada) in general.

We too often look upon the past from the security of history. The Allies, after all, ultimately won the war so we are now free to regard any decision they made which, with the benefit of hindsight, as unnecessary to that victory as a horrible and condemnable excess. I, for one, am not prepared to offer that judgement from on high.

There was, in 1942, at least some reason to consider suspect the loyalty of some Japanese-Americans. This was a serious enough concern to warrant action by the Federal Government. While I disagree with the nature of that action, it would not be desirable to deny them the right to take some action in such a circumstance.

“War Measures”:
It is generally accepted that, under the Constitution, the Federal Government (especially the Executive) are endowed with certain unenumerated powers which they can use in times of war or national emergency. For example, the Constitution makes the President the Commander-in-Chief of the Armed Forces. What this means, in effect, is that the President possesses authority to do anything which is not explicitly forbidden by the Constitution. Read from a sufficiently loose point of view (or an excessively legalistic one) this logic could even be extended to conclude that the Armed Forces have no obligation to, for example, respect the First Amendment since the First Amendment merely enjoins Congress against establishing a state religion or abridging the freedom of the press. Were it necessary for the military to do so, as a war measure, it would be perfectly legal or at least acceptable.

This was the principle used by President Lincoln in formulating the Emancipation Proclamation. It would have been, in my opinion, plainly unconstitutional for the President to simply order individuals recognized as American citizens stripped of their property (whatever that property might be) during peacetime. However, in war, the President has special authority to authorize actions which might be necessary to further the war effort.

The War Powers of the Government are necessarily broad. In Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943) the Supreme Court cited former Chief Justice Charles Evans Hughes, in writing that:

The war power of the national government is 'the power to wage war successfully'... It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.

Thinking along similar lines, Alexander Hamilton argued in The Federalist No. 23 that:

(U)nless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES

There is, in other words, a fairly broad and long-standing consensus that the Federal Government possesses powers beyond those enumerated in the Constitution during wartime. The question then, of course, becomes one of words. What measures are “necessary”? What limits, if any, exist upon the powers of the government in an emergency?

The Necessity of Relocations:
Given this, the question then becomes: are relocations of this sort ever, “essential”? I contend that, at times, they are. The reason why I am so reluctant to declare internments of any sort unconstitutional, even recognizing that a great injustice was done to my own family by them, is the simple fact that I recognize that it is entirely possible that such steps will need to be take again in the future. We should not shrink from taking necessary measures simply as a result of some half-remembered “lesson” from history.

In 1941 there were good reasons to question the loyalty of Japanese-Americans. Many had maintained constant connections to their homeland, belonged to groups which supported the Emperor of Japan, and had other links which would draw their reliability as citizens into questions. Others were not even citizens of the United States, but resident aliens: it was entirely possible that spies or saboteurs dispatched by the Government of Japan where sheltered among those numbers. It would have been foolish and risky for the Federal Government to take no action.

Secondarily, there was also some degree of necessity in removing Japanese-Americans from the Pacific Coast as a measure to protect their own safety. As absurd as it sounds in retrospect, many believed in 1941-1942 that some sort of Japanese attack against the Pacific States was a very real possibility. In such a situation, it seems to me to be a virtual certainly that violence against Japanese-Americans would have occurred. This was a very real fear among the internees themselves, as may be demonstrated by their reaction to the news, delivered in 1944, that the Federal Government was now planning on sending them home.

Suppose that there were to be, tomorrow, a nuclear attack launched against the United States by al-Qaeda. Is it not inevitable that, in the aftermath of such a situation, some sort of internment of Muslims within the United States would occur? Not that I am even necessarily advocating such a step, mind you: I’m merely saying that it likely. I can think of no other way to roll up al-Qaeda cells which would be as satisfactorily fast and effective.

I realize that this is an unpleasant discussion: but it is also a necessary one. Too often today we, as Herman Kahn once put it, need to, “think the unthinkable.” What if there was a nuclear attack which destroyed New York City and killed five million Americans? How would people react? How could the network of Islamists within the United States be instantly removed? In such a situation, I am quite certain; the evacuation of Muslims from certain areas would be demanded and granted. By facing this reality, by understanding it, and planning for it we can avoid the excesses which marked the Japanese internment.

Principles for Future Evacuations:
What rules might allow a smooth forced evacuation of a group of people to take place in the future? Allow me to suggest five:

1) An evacuation will only take place when the threat posed by members of the group is imminent and constitutes a significant danger to the public safety.
2) One will occur only in the absence of an effective alternative method of rapidly separating the loyal and disloyal members of the group is available.
3) All individuals evacuated will be rapidly personally assessed and those determined to be loyal will be immediately freed: with fair compensation.
4) All property of member of the evacuated group will be protected by the Federal Government and those determined to be loyal will be fully compensated for any damages or other financial losses that they sustain.
5) Such an evacuation, undertaken as a war measure, will be conducted by military authorities and will only last so long and be undertaken in those areas where military necessary or the public safety warrants it.

Conclusion:
The Japanese internment, as it was conducted, was wrong. The most notable wrongs were the lengthy blanket detentions of individuals who had done nothing wrong and the confiscation of the property of those individuals. These are wrongs that are properly condemned.

However, we have to be careful not to confuse “immoral” with “unconstitutional.” These are entirely separate concepts. Moreover, we must accept that moral wrongs are often, to some degree, necessary in the service of a higher cause.

For example, the Constitution makes the President the Commander-in-Chief of the Armed Forces. What this means, in effect, is that the President possesses authority to do anything which is not explicitly forbidden by the Constitution.

Aside from the fact that the above statement is utterly ridiculous and reflects a complete lack of understanding of constitutional principles, denying life, liberty, or property without due process of law is indeed "explicitly forbidden" by the Constitution.

It is generally accepted that, under the Constitution, the Federal Government (especially the Executive) are endowed with certain unenumerated powers which they can use in times of war or national emergency. For example, the Constitution makes the President the Commander-in-Chief of the Armed Forces. What this means, in effect, is that the President possesses authority to do anything which is not explicitly forbidden by the Constitution.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 10th Amendment makes no exception to any branch of the United States government, nor does it make any wartime exception.

To assume unenumerated powers were intended is clearly illogical because there are numerated war powers included:

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger

So call "unenumerated executive war powers" whatever you like, but they are not constitutional. They are nothing but another "living constitution" decree in a long list of constitutional userpations.

This is an interesting article, especially given the experiences of the man who wrote it. However....

This article talks only about the Endo case. Inexplicably, it ignores the key case, which was Korematsu. In that, the Supreme Court by a vote of 6-3, ruled the Executive Order of FDR to round up and imprison Japanese-Americans to be constitutional. This case needs to be faced, not avoided.

Forty years later, Fred Korematsu himself went to federal court asking it to expunge his criminal record. It did so, ruling that the orginal Korematsu decision was, itself, unconstitutional. Then when that lower court decision came up to the Supreme Court, to its shame it let that decision stand, did not take the case, and did not explicitly overrule its own abomination.

Facing the Korematsu decision head on allows the proper distinctions between unconstitutional incarceration then, and constitutional incarceration today. The overriding difference is this: ALL of the Japanese-Americans were rounded up without individual suspictions or charges. All were looked up solely for their racial descent (at least one Japanese grandparent).

On the other hand, NONE of the current detainees are locked up solely because of their racial descent. Each one is a suspect individually, either under the criminal laws of the United States, or under the Law of War, which applies both in the US and across the world.

Trust me, I know these things. One of my books was Manzanar on the internment of the Missei during WW II. Photographs in that book were taken by Ansel Adams.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Please do it now.

So how do you account for the "Alien & Sedition Act", enacted during the term in office of one of the "framers"?

Hypocrisy.

Also note other framers were bitterly opposed it and Jefferson's first act as president was to pardon and release all those held under the A&S Act. Add to that the well documented abuse of this act to predictibly silence and imprison political opponents, and the A&S Act is shown to be the poster child against unenumerated wartime powers.

German-Americans were NOT interned during WW II. Both they and the Italian-Americans were free to come and go as they chose, unless accused and convicted of a specific crime. (Some of both were so convicted.)

Only the Japanese-Americans were locked up solely on a racial basis. That happened in every state west of the Mississippi, except Hawaii. (Long and interesting story why Hawaii was excepted from the effect of FDR's Order. It's in my book.)

If German-American families HAD been interned on the same basis as the Japanese-Americans, MY family would have been locked up. And if so, I would have died within days of my birth in January, 1943. I have researched the medical facilities in these camps, and they were not equipped to take care of babies born five weeks prematurely.

You have a flawed understanding of the civilian facts during WW II, my friend.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Please do it now.

Correct me if I'm wrong - my understanding was that after the US got involved in WW II, Japanese residents in the US were given the option of returning to Japan, and that those who did not were interred (with their often-US-citizen children.)

What we need to do before even contemplating internment for Muslims is to *not let any more in the country,* and encourage others here on visas to go back. Those found here illegally should be summarily deported. But for those from enemy countries who refuse to return, I see nothing wrong with internment.

Only the Japanese-Americans were locked up solely on a racial basis. That happened in every state west of the Mississippi, except Hawaii.

I have a friend that was living in Hawaii in 1941. He tells a tale of a Japanese family that had two sons his age that he hung out with. The Japanese boys were avid photographers and always wanted to go down to the harbor (Pearl Harbor) to take pictures of the navy ships. On December 7, 1941, my buddy was supposed to meet his Japanese friends to go fishing at the harbor--they never showed up and the family was never seen after that.

One might say the same about the Louisiana purchase, no?

True. Yes, the purchase was a good idea. But instead of following the constitutional method, pragmatism and convenience lured an otherwise constitutional Jefferson astray.

So we got a great big chunk of land without going through that inconvenient amendment process. And because we have so long wandered down that road now we have a government with no real constitutional limitations, which laughs at the notion of federalism.

"If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed...."
President George Washington's Farewell Address, 1796

If it seems like he had a window into the future when he wrote that, it is only because it is so very preidictible.

Selected individuals and families of Japanese- Americans on Hawaii were rounded up on an individual threat analysis. But the commanding general on Hawaii never carried out the wholesale internment order from the President.

The general advanced numerous reasons for not conducting the total roundup, such as lack of materials to build camps, lack of available transport to the mainland, etc. In fact, the general realized that he could not complete the wartime construction and repairs on Hawaii without the Japanese-Americans. For instance, 90% of all the carpenters on Hawaii were Japanese-Americans.

None of the Japanese-Americans on Hawaii were ever convicted of a single act of espionage or assistance to the enemy (Japan). The President made a wrong and unconstitutional decisionl. The commander on Hawaii made a practical and constitutiional decision that was good for the Japanese-Americans there, but was also good for America's conduct of the war.

John / Billybob

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.