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Hirabayashi: The Biggest Lie of the Greatest Generation


Eric L. Muller


University of North Carolina (UNC) at Chapel Hill - School of Law

August, 18 2008

UNC Legal Studies Research Paper No. 1233682

Abstract:     
This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government's submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.

The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the "Oriental" as an invading horde may have overpowered the lawyers' evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court's Hall of Shame, alongside Korematsu, Dred Scott, and the Court's other biggest mistakes.

Number of Pages in PDF File: 68

Keywords: internment, Japanese Americans, Supreme Court, misconduct, equal protection, civil liberties, national security

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Date posted: August 18, 2008  

Suggested Citation

Muller, Eric L., Hirabayashi: The Biggest Lie of the Greatest Generation (August, 18 2008). UNC Legal Studies Research Paper No. 1233682. Available at SSRN: http://ssrn.com/abstract=1233682 or http://dx.doi.org/10.2139/ssrn.1233682

Contact Information

Eric L. Muller (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7067 (Phone)
919-962-1277 (Fax)

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