Transcendental Nonsense and the Functional Approach: What the Law Did to Japanese-Americans During WWII

-- By AliceHenderson - 16 Feb 2012

A Personal History

On February 19, 1942, President Roosevelt signed Executive Order 9066, sending over 100,000 Japanese-American U.S. citizens to internment camps to wait out the end of World War II. This is a historical fact with which any law student is familiar, but “all concepts that cannot be defined in terms of the elements of actual experience are meaningless.” Felix S. Cohen, “Transcendental Nonsense and the Functional Approach”, 35 Columbia L. Rev. 37 (1935). Here is an element of actual experience: when that legal decision was made, my grandmother was 18 years old, just a few months shy of her high school graduation. The daughter of immigrants but born and raised in Los Angeles, she was escorted with her family by American troops to a camp in Arkansas. They spent the next three years in army barracks, sleeping on mattresses stuffed with hay, and surrounded by armed guards and barbed wire. Allowed only what belongings they could fit into one suitcase, they lost their home and material possessions. What they lost of their dignity took much longer to recover.

Legal Definitions, Social Definitions

If, according to Cohen, the meaning of a legal decision is what it does in context, at the intersection of social forces, what is the real meaning of Executive Order 9066, and of Korematsu v. United States 323 U.S. 214 (1944), the challenge to internment that made it to the Supreme Court? The Supreme Court held that the exclusion and confinement of a racial group was subject to strict scrutiny, that “nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either” and that the U.S. government had met that high threshold. The military had acted “in accordance with Congressional authority.” Korematsu, 323 U.S. at 218. The Court said, “not my job to question their judgment during a war” and put the constitution in the back of a drawer until safer times. The terms of the reasoning- strict scrutiny, apprehension, gravest imminent danger- are artificial. The decision was circular and political; the law was just a pawn of social forces.

Actually, to be precise, Korematsu upheld the exclusion order that brought about the removal of Isei and Nisei citizens from the Pacific Coast. In the companion case, Ex parte Mitsuye Endo, the Court held that citizens whose loyalty was conceded or unchallenged by the Government were not detainable, and were entitled to release. Despite the apparent constitutional importance of this ruling, however, most detainees didn't seek release because, having lost their property and livelihoods as a result of General Witt's exclusion order, they had nowhere to go.

Aside from the slight misstatement of law, this paragraph seems unnecessary clotted to me. You don't need to involve yourself with the interpretation of Felix Cohen's article here. Your point is simple realism: the Court's cases from Hirabayashi to Korematsu represented complete deference in fact, but not in theory, to the militarily-sanctioned removal of Japanese-Americans from the Pacific Coast, which when done by the other side was to be treated in later law as a crime against humanity.

Function, Or What The Law Has Done

The consequences of the legal actions taken by the U.S. government related to Japanese-American internment during World War II are not limited to the protection of the American people against war-time espionage. The consequences are, of course, infinite, but over the span of three generations, one of those consequences is clear. I am here at Columbia Law School because the president put his signature on a piece of paper on that day in 1942. I’m here because the psychological ruin of my grandmother caused by the internment contributed to my mother leaving home, moving to New York, marrying a non-Japanese political activist, and instilling in her daughter an intense sense of civic duty. The privilege I have experienced in my life can be credited to the social safety net that I was born on the right side of- the laws that allowed me to safely go to school, leave the country to study abroad, work in a field of my choosing, interact with people of different backgrounds, and any number of things that serve as stepping stones to the next rung in life. I am grateful, but I don’t take for granted that I will always be a beneficiary of the law. Knowing that my grandmother experienced one of the many times in which, even with honorable intentions, the law was used to strip a people of their rights, I feel compelled to attempt, at least, to make it my responsibility to uphold and protect the laws that protect me.

Infinity

In 1988, President Reagan awarded redress payments to Japanese-Americans who had been interned during World War II. It was a nominal sum, but last year, my grandmother gave it to me to put toward law school tuition. She didn’t articulate her intention, and she didn’t need to. She endowed me not with a gift, but with a reminder of her trauma to carry with me in my studies and in my work. In doing so, that government check is more than just the inadequate reparation for a time when this country fell short of its founding ideals of justice and equality; it is an investment in the struggle toward those ideals– in my struggle. I came to Columbia with the belief that the opportunity to study law here would be the opportunity to accrue the experiences and knowledge to prevent current and future miscarriages of justice evident in my grandmother’s story, but I wonder if my affect will be a drop in the ocean. Korematsu was never overturned; it sits on the books along with many other laws constructed of transcendental nonsense. My little arrow on the continued evaluation of consequences could take any number of directions to bring Korematsu to a positive result.

It might be worth a little consideration that the principle of strict scrutiny that Korematsu announced has taken root at the center of equal protection jurisprudence as a form of review "strict in theory and fatal in fact," which has done much work on the side of racial and social justice in the subsequent seventy years. It might also be worth considering that this happened largely under the judicial supervision of a Chief Justice whose sterling record of public service was severely blotted by his political alliances with white supremacy in California, including his support, as California's wartime governor, of the forced relocation of Japanese-Americans. "Consequences" come in many forms.

This is a very strong draft. The revisions I think must be made are at least indicated in my comments. Beyond those, I do not think that there are fundamental problems to address. But with more concise presentation, room could be made to consider further the social consequences of this disastrous surrender to racism, including developments in the US after 2001.