Yellow Peril

Racist stare decisis

David Weigel from the December 2008 issue

When the United States went to war against Japan in 1941, Congress passed a law commanding Japanese Americans to stay inside after dusk. Two years later, in Hirabayashi v. United States, the U.S. Supreme Court affirmed the curfew. Unlike Korematsu v. United States, the decision that justified race-based internment, Hirabayashi has never been struck down. It could still be used as precedent.

That’s cause for concern. In a new paper Eric Muller, a legal scholar at the University of North Carolina, makes the case that both decisions were based on lies probably driven by racial animus—and that legislators knew the truth while writing the law.

Muller’s paper, published in August by the Social Science Research Network, relies on publicly available memos to argue that American generals knew that Japanese forces were not about to attack the West
Coast and that there was no Japanese-American insurgency that could have backed them up. In 1942 Gen. George C. Marshall argued for moving resources from the Pacific to Europe because the Japanese threat was containable. “In view of the great distances over which these operations would have to be undertaken,” Marshall said, “it is probably not necessary to provide a strong scale of defen[s]e.”

Despite that, Justice Department lawyers told the Supreme Court extreme measures were necessary to stop the Japanese threat. The Court bought it, endorsing curfews in part because “the principal danger to be apprehended was a Japanese invasion.” Muller writes that the precedent provides a “warning about the blinding power of racial schemas in the wake of attacks by foreign enemies.” But it’s not a cold case. While most Americans have repudiated Korematsu, Miller says Hirabayashi’s reasoning is still “potent in today’s world.” Even if it’s based on a lie.