The Japanese American Cases - a Bigger Disaster than We Realized
71 Pages Posted: 6 Feb 2006
Sixty-one years ago, Eugene V. Rostow published the first major academic article on the Japanese American internment of World War II. The article's title left little doubt about Rostow's view of the Supreme Court's decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944): The Japanese American Cases - A Disaster. Rostow's claim was that these two cases were a substantive disaster of constitutional doctrine - a fundamentally mistaken endorsement of a repressive military program.
Rostow's conceptualization of the disaster of the Japanese American cases continues to define - and, in a sense, to confine - our view of the legal history of this wartime period. There are, in fact, many more wartime Japanese American cases to remember than Korematsu and Hirabayashi. These two cases were really just one small part of a much broader program of litigation in which the government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives.
This Article broadens Rostow's assessment of the Japanese American cases as a disaster by recasting both of those terms. It widens the focus of the term Japanese American cases to include stories of the many wartime Japanese American cases that the literature has slighted or forgotten. This broader view reveals that the Japanese American cases of World War II were a disaster of a different sort: a litigative debacle, in which an astonishing number of cases ended in acquittals, dismissals, stern judicial rebukes, and other repudiations of the government's legal and factual positions. The Article concludes that the overall litigative project was a misadventure in using the law - especially the criminal law - to tar a racial group with the badges of disloyalty during wartime.
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