Although it is hardly surprising that national emergencies frequently cause countries and political actors to react in extreme ways, this does not necessarily make these extreme reactions legally legitimate or ethically justifiable. Contemporary American reactions to the threat of terrorism, contrary to suggestions that this is a unique socio-legal phenomenon, are in fact the result of well-established legal precedents and social practices that attended the internment of Japanese Americans during World War Two.
Some legal scholars, for instance, have traced contemporary anti-terrorism laws to the ethical and legal issues dating back to the United States Supreme Court’s decisions in Hirabayashi v. United States in 1943 and Korematsu v. United States in 1944.
In order to understand how the Japanese-American internment cases represent a typical American reaction to national emergencies, it is necessary to understand the precise legal issues involved in the Supreme Court cases dealing with the Japanese-American internment, how these legal issues were resolved, and why these types of extreme reactions and legal reasoning do more social harm than good within the context of America’s constitutional framework and ostensibly moral values.
As an initial matter, it is necessary to acknowledge the fact that national emergencies create an atmosphere of fear in which radical policies and programs may be implemented in ways that would never occur absent the national emergency. A leading legal scholar of the Japanese-American internment cases has argued, for instance, that “The judicial role in reviewing governmental actions taken in response to national emergencies is descriptively complex and normatively controversial” and further that “National emergencies require courts to balance two competing interests: civil liberties and national security. In response to America’s military conflict with Japan during World War Two, the national emergency in this case, a decision was made to intern thousands of Japanese-Americans regardless of their national allegiance and irrespective of their actual ties to Japan. This gave rise to two major legal challenges in which two of the interned Japanese-Americans, Hirabayashi and Korematsu, basically argued that the decision to intern them was an unconstitutional violation of the 5th Amendment to the United States Supreme Court.
More specifically, they both argued, on behalf of themselves as individuals and on behalf of tens of thousands of similarly situated Japanese-Americans, that the internment was unconstitutional because the Fifth Amendment provided that “No person shall be… deprived of life, liberty, or property, without due process of law. ” Their cases, and those of other Japanese-Americans, therefore depended on how the United States Supreme Court would apply and interpret the 5th Amendment within the context of the national emergency known as World War Two.
In the Hirabayashi case, the question presented was whether the national emergency represented by World War Two was a sufficient basis to allow the American government to effectively suspend with respect to Japanese-Americans their constitutional rights. The Supreme Court rules, in a unanimous decision, that such a suspension was legally permitted. The president had issued an executive order creating a curfew, registration procedures, and ultimate relocation to special areas to intern the Japanese Americans.
The Supreme Court rejected Hirabayashi’s 5th Amendment challenge on the grounds that both President Roosevelt and Congress has properly employed the war powers set forth in the United States Constitution and that these war powers effectively trumped the 5th Amendment. Significantly, the Chief Justice acknowledged that discrimination on the basis of race was very bad, but considered such racial discrimination to be necessary and constitutionally justifiable given the necessity “to protect national security in time of war. The legal precedent therefore established was that the war powers could be exercised in order to discriminate and to confine a group of people based on their racial background or their ancestry absent any showing whatsoever of disloyalty. In the Korematsu case, the issue presented was whether the evacuation order under which Korematsu was arrested for failing to obey by the FBI constituted a deprivation of Due Process under the 5th Amendment of the United States Constitution. Significantly, in contrast to the Hirabayashi case, the Supreme Court issued a 6-3 split decision rather than a unanimous decision.
The majority once again acknowledged the hardships faced by the Japanese-Americans, but also once again ruled that the exclusion orders had been properly created and implemented pursuant to the war powers provisions of the constitution. Despite the majority’s reliance on the war powers rationale, however, there were some different features of the Korematsu case. First, unlike the majority decision in Hirabayashi, the Korematsu majority backtracked slightly and argued that the internment-related orders were motivated by military security and therefore were not primarily aimed at race or ancestry.
The facts, to be sure, belie this shaky logic. Second, “The majority ruling really did not say whether the relocation of Japanese Americans was constitutional. Rather, the Court sidestepped that touchy issue, emphasizing instead the national crisis caused by the war. ” What emerges from a careful examination of the majority reasoning in these cases is a sort of military exception or war powers exception to the Due Process Clause of the Amendment in particular and, perhaps by extrapolation, a military or war powers exception to the American Constitution more generally.
In the final analysis, the reasoning employed in these cases is especially troubling for several reasons and it perhaps explains contemporary thought regarding the War on Terror and while ominously foreshadowing the sanctity of constitutional protections in the United States of America. These cases, in effect, effectively and unequivocally abrogated the “no person” language from the 5th Amendment of the United States Constitution and now stand for the proposition that, in certain circumstances, some people can and may be deprived of life, liberty and property.
This is a fundamental assault upon social equality and the ostensible values under which America was created. Second, and the more troubling issue, is how are national emergencies to be defined. The War on Terror, to be sure, falls well short in scale and scope of the emergency encountered in the form of World War Two and yet the executive orders and Congressional legislation such as the Patriot Act are being articulated and implemented under similar rationales.
Perhaps, in the naming of preserving the legitimacy of the American Constitution, it is time for Congress to define national emergencies in extraordinarily narrow terms that exclude open-ended emergencies such as the war on terror and to pursue constitutional amendments which make orders and laws issued pursuant to the war powers inapplicable if predicated on race or ancestry.