On U.S. internment camps’ lessons — and the Supreme Court’s evolution on the law

This month is the anniversary of one of the darkest episodes in U.S. history.

On Feb. 19, 1942, President Franklin Roosevelt signed Executive Order 9066, which initiated one of the most degrading, humiliating, and harmful experiences for people living lawfully in the United States: the removal and internment of more than 120,000 Japanese Americans into detention camps spread throughout the country.

The ostensible reason was the fear that they constituted a “fifth column,” a group within a country at war that is a potential source of sabotage and a threat to U.S. national security.

Two months earlier, Japan had bombed Pearl Harbor and destroyed the U.S. military fleet stationed there. This attack pushed America into the war against Germany, Italy, and Japan.

Although the internment order also applied to Italians and Germans in the U.S., nearly all of the detainees were Japanese Americans.

Prior anti-Japanese sentiment

There was a great deal of anti-Japanese sentiment in the U.S. long before the war. The Japanese were concentrated on the West Coast. They had become economically successful, particularly as farmers, landowners, and merchants, and anti-Japanese xenophobia was widespread and virulent.

The war created an opportunity.

The executive order forced the Japanese in the U.S. to leave their homes, their shops, and their farms, which were expropriated by the government, never to be returned. They were allowed to take only what they could carry. They lost everything – not only their belongings, but their sense of belonging as well. Of the 120,000 who were incarcerated, two-thirds were American citizens.

They were transported to detention camps in remote and desolate regions where they were forced to live in stark barracks with almost no privacy, no amenities, surrounded by barbed wire, and under complete deprivation of their human rights. According to estimates, nearly 2,000 internees died from diseases that were rampant in the camps.

Jews, other minorities rounded up in Europe

While this was happening in America, Jews and other vulnerable minorities in Europe were being rounded up and deported to concentration and detention camps, uprooted from their belongings, their communities, and their rights.

Eleanor Roosevelt, who went on to participate in drafting the Universal Declaration of Human Rights six years later, wrote in her memoirs that she had hoped to change her husband’s mind about internment. When she brought up the subject, however, he told her never to mention it again.

What was the legacy?

The older generation, those who were interned or who were born shortly after the war, stayed quiet. Their children, known as the Sansei generation, grew up during the civil rights movement. They began to campaign for an apology and for some form of redress.

In 1988, a formal apology and payment

In 1988, more than 40 years after the internment camps closed, President Ronald Reagan signed the Civil Liberties Act, which offered a formal apology and paid $20,000 to each survivor.

But that isn’t the whole story.

In 1942, a 23-year-old Japanese American man, Fred Korematsu, refused to be removed. He challenged the executive order on the grounds that it violated the Constitution’s Fifth Amendment that guaranteed him due process of the law.

In the majority opinion joined by five other justices, Associate Justice Hugo Black wrote, in 1944, that the need to protect against espionage by Japan outweighed the rights of Americans of Japanese descent, including Mr. Korematsu.

Dissenting justices Frank Murphy, Robert H. Jackson, and Owen J. Roberts all criticized the exclusion as racially discriminatory. Justice Murphy wrote that the exclusion of the Japanese “falls into the ugly abyss of racism” and resembled “the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

The Korematsu case came to light again nearly 80 years later.

In 2018, the Supreme Court, in Trump v. Hawaii, considered whether Trump could lawfully ban Muslims from traveling to the United States. The Court upheld the travel ban in a 5-4 decision. Chief Justice Roberts supported the ban and wrote the majority opinion.

Justice Roberts on the Korematsu case

However, he referred to the dissenting opinions that referenced Korematsu v. United States. He said that the Korematsu case was wrongly decided. Justice Roberts stated, “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

He added, “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”

The dissent in this “travel ban” case had been heated. Justice Sonia Sotomayor, one of the dissenting voices, compared the travel ban decision to the Korematsu case, saying there are “stark parallels” in the reasoning. “As here, the exclusion order was rooted in dangerous stereotypes about a particular group’s supposed inability to assimilate and desire to harm the United States.”

Roberts was troubled with the comparison between the Korematsu case and the travel ban. He did something that no party involved in the 2018 travel ban case had expressly asked for: He announced that the Supreme Court was overruling Korematsu.

We need to think about what was done in 1942 – and what has occurred in the past four years, particularly the unlawful and inhumane separation and detention of families on the U.S. southern border who may never be reunited again.

We must be mindful of the past and its lessons for today.

***

World Without Genocide will host a webinar on Feb. 15, 7 to 9 p.m. CST, titled “U.S. Reparations for the Holocaust, Japanese Americans, American Indians, and Black Americans.” It is open to the public; registration is required by Feb. 14. $10 general public, $5 students and seniors, free to Mitchell Hamline students. $25 for 2 Elimination of Bias credits for Minnesota lawyers.

Ellen J. Kennedy, Ph.D., is the executive director of World Without Genocide at Mitchell Hamline School of Law. 

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