KAYJATTA

November 2, 2011

HIRABAYASHI V. UNITED STATES: 320 U.S. 81 (1943)

CASE FACTS:

On December 7, 1941 the Japanese Navy attacked the United States naval base in Pearl Harbor, Hawaii in two successive waves. 2,402 Americans were killed and 1,282 were wounded.

Public opinion about Japanese Americans started to deteriorate shortly afterwards because of concern about what was referred to as the “Fifth Column “activity derived from the 1936-1939 Spanish civil war and also depicted in playwright and novelist Hemmingway’s play of a similar name suggesting internal collaboration with external enemy forces. This raised questions about the loyalty of Japanese Americans to the United States despite government dismissal of potential threats from Japanese Americans. This situation appears similar to the situation of Muslims and Muslim-Americans in the U.S. following September 11, 2001.

Then on February 19, 1942 President Franklin D. Roosevelt issued an Executive Order 9066 giving permission to the head of the military to confine and exclude certain groups of people without regards to citizenship or ancestry from military installations, mainly on the West Coast because of its vulnerability to invasion and attack at the time. Some 110,000 Japanese and Japanese-Americans were imprisoned in ten (10) different camps.

The implementation of this Executive Order evolved from the initial imposition of curfew upon aliens of Japanese descent as well as Japanese Americans, to confinement of Japanese and Japanese Americans to military facilities, and later rounding up Japanese and Japanese Americans in detention centers that were interchangeably called “relocation centers”, “internment camps”, and “concentration camps”.

Gordon K. Hirabayashi, who was a student at the University of Washington, refused to register for evacuation and thereby was accused of violating the Executive curfew order and the Congressional statute that followed designating the violation of military orders. Both violations were misdemeanors. Hirabayashi argued that the indictment should be dismissed because he was an American citizen, born in Seattle in 1918 that at no time had borne allegiance to Japan and had never been to Japan.

CASE HISTORY:

The case of Hirabayashi v. United States reached the Supreme Court from the Circuit Court of Appeals for the Ninth Circuit where the defendant’s conviction from the district court was upheld. The court held that the application of curfews against members of a minority group was constitutional during a war time with a country that the group originated.

The Supreme Court also upheld the curfew order in Hirabayashi and its companion case (Korematsu v. United States). However, several years later in 1986 and 1987, Hirabayashi’s case would be overturned by the U.S. District Court in Seattle and the Federal Appeals Court.

SUPREME COURT DECISION:

The Supreme Court indicated that where the sentences of a defendant were to run concurrently, it would be necessary to consider the validity of the sentence on both charges  (counts) if the sentence on one of the charges is sustainable

Chief Justice Stone delivered the opinion of the court. The decision addressed two main issues or charges:

1.       Whether the restrictions of the Executive Order and the subsequent Congressional statute violate the rights of Japanese Americans?

2.       Whether the restrictions of the Executive Order and the subsequent Congressional statute unconstitutionally discriminated against citizens of Japanese origin?

The Supreme Court held that the Executive Order was a in the interest of public safety, a “protective measure necessary to meet the threats of sabotage and espionage” (P. 320 U.S. 95). The Court also held that the curfew order did not unconstitutionally discriminate against citizens of Japanese origin, P. 320 U.S. 101. Chief Stone also cite the landmark case of McCullough v. Maryland to support his position.

Justice Douglas, in concurrence argues that after Pearl Harbor, the threat of Japanese invasion was real and the threat of aliens and citizens of Japanese origin in military installation is a legitimate concern. He challenged the substantial evidence rule, saying that peacetime procedures do not necessarily fit wartime needs. Justice Douglas raised doubts that the court is competent to review the case, further arguing that the court is dealing with loyalty, not assimilation; but then loyalty is matter of mind and of heart, and not of race yet guilt is personal. He argued that detention for reasonable cause is one thing, and detention for ancestry is another thing all together.

Justice Murphy also concurred. A concurrent opinion is one that agrees with the majority opinion but uses different reasons or reasoning. He cited United States v. Macintosh (283 U.S. 605, 283 U.S. 622)  arguing  on the basis of the “Necessary and Proper” clause of the constitution that the executive and congress are empowered to exercise control over persons and property  even though such may not be permissible in normal times. However, Murphy lamented that the guarantees of the Bill of Rights cannot be suspended by the mere existence of war, and the executive and congressional war powers is subject to constitutional limitations. He questioned the wisdom of restricting substantially the personal liberty of citizens of United States based on the accident of ancestry (Whitney v. California, 274 U.S. 357, 274 U.S. 372).

Justice Rutledge also concurred. He raised doubts about the wide range of power vested in military commanders such General De Witt even during an emergency. While he agrees that the generals must have discretion in conducting their operations, they would not go unchecked and there would be boundaries beyond which they cannot go.

It is however interesting that one of the justices dissented in this case. The lack of a dissent goes to underscore American nationalism during a time of crisis. Notwithstanding, the large number of concurrent opinions perhaps sets this case on the path to a later reversal. Dissenting and concurrent opinions are often useful in shaping future majority opinions.