The shame of deference
Two of the three most infamous Supreme Court decisions were erased by events. The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.
Korematsu v. United States (1944), which affirmed the president's wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology. Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California, San Diego, is campaigning for a Supreme Court “repudiation” of the Korematsu decision and other Japanese internment rulings.
On Feb. 19, 1942, President Franklin Roosevelt authorized the military to “prescribe military areas ... from which any or all persons may be excluded.” So 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations. Supposedly, this was a precaution against espionage and sabotage. Actually, it rested entirely on the racial animus of Gen. John DeWitt, head of the Western Defense Command.
Using government records, Irons demonstrates that because senior officials, including Solicitor General Charles Fahy, committed “numerous and knowing acts of governmental misconduct,” the court based its decision on “records and arguments that were fabricated and fraudulent.” Officials altered and destroyed evidence that would have revealed the racist motives for the internments. And to preserve the pretext of a “military necessity” for the concentration camps, officials suppressed reports on the lack of evidence of disloyalty or espionage by Japanese-Americans.
The 1943 “Final Report” on Japanese “evacuation,” prepared under DeWitt's direction and signed by him, said a Japanese invasion was probable, that “racial characteristics” of Japanese-Americans predisposed them to assist the invasion, and that it was “impossible” to distinguish loyal from disloyal Japanese-American citizens, if there were any.
When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, but one copy escaped DeWitt's cover-up. The court, however, never saw it, remaining unaware of the racist basis of the theory of internment's “military necessity.”
Also kept from the court was a report, prepared for the chief of naval operations and made available to DeWitt, estimating potentially disloyal Japanese as just 3 percent of the Japanese-American population, and declaring that these were “already fairly well known to naval intelligence” and could be quickly apprehended, if necessary. Fahy ignored an assistant attorney general's warning that not advising the court of this report would constitute “suppression of evidence.”
The Korematsu decision reflected perennial dangers: panic and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies. It is less important that the decision be repudiated than that it be remembered.
Especially by those clamoring, since Boston, for an American citizen — arrested in America, and concerning whom there is no evidence of a connection with al-Qaida, the Taliban or other terror network — to be detained by the military as an “enemy combatant.” The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.
George F. Will is a columnist for The Washington Post and Newsweek.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Rossi: After L.A., NFL should tread carefully
- Starter Liriano strikes out 12, leads Pirates to series sweep of Mets
- Acme man’s ephemeral sculptures appear to defy laws of physics
- Oncologists wary of scaled-back guidelines in cancer screenings
- Kennywood fanatic, 82, rides Jack Rabbit 95 times in a row
- Neighbor arrested after McKeesport house fire, authorities say
- Posthumous election wins have happened in Western Pa., nation
- Unquestionable courage & sacrifice
- Early success in White House race a pleasant surprise for Carson
- Motorist killed in Armstrong County rollover crash
- Memorial Day service in National Cemetery of the Alleghenies still growing