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After Pearl Harbor, Franklin Roosevelt, our most liberal president, ordered Japanese-Americans on the West Coast arrested, deprived of their property, and detained in isolated barracks. Subsequently, in 1944, several years after Pearl Harbor, the Supreme Court affirmed the decisions leading to these concentration camps.
Generally regarded as the most shameful moment in twentieth-century American history, you would have supported it.
I know you would have since virtually all Americans did -- including, besides the most liberal president in our history, the most liberal members of the United States Supreme Court - Hugo Black, William Douglas, Robert Jackson, and Felix Frankfurter.+
"Of course," you could say, "Black would have supported it since, an Alabaman, he had been a member of the Ku Klux Klan."
But that doesn't wash. Black had to be a Klan member if he was to be elected to the United States Senate, where Roosevelt plucked him for the Supreme Court. But from the moment he entered the Court, Black never indicated any subservience to anti-black, Jewish, or Catholic values (the Klan's sine qua non). Rather, he was known for his influential view that individual civil liberties are guaranteed by the Constitution over any restrictions that states might try to impose.
Douglas, the longest serving Supreme Court justice ever, was called by Time "the most doctrinaire and committed civil libertarian ever to sit on the Court."
Jackson, another Roosevelt liberal, would be the chief prosecutor of Nazi war criminals at Nurenberg!
Frankfurter, appointed as an extreme civil libertarian (he spoke out on behalf of Sacco and Vanzetti, who were executed in a national frenzy of anti-radicalism, and was a founding father of the ACLU), became more conservative as time went on. But Frankfurter was the only justice not born in the U.S.; a Viennese Jew, his relatives were rounded up by the Nazis!
All of these men voted for Brown v. Board of Education, desegregating schools, more than a decade later. Yet all of them - who regularly said that legal discrimination based on race is abhorrent and that the government is prohibited from depriving citizens of individual rights, and certainly freedom, without cause - backed the internment of the Japanese. The decision, Korematsu v. United States, is generally regarded as one of the worst in Supreme Court history. Yet these justices, led by Black, explained why it was the right thing in careful legal terms. How could you -- an ordinary citizen -- have disagreed with such brilliant jurists?
Oh, and while we're at it, the internment was backed by the most liberal political columnist of the time, Walter Lippmann, and by Earl Warren, the liberal Supreme Court chief justice who engineered the Brown decision, who was attorney general of California at the time of the round-up of the Japanese.
Here are the reasons all of these men supported this racially-prejudiced decision:
- the fear and desperation aroused by the Japanese attack on Pearl Harbor (you know - like 9/11)
- decsion-making based on gut feelings and popular prejudices, and then justifying these according to some reasonable-sounding rationale
- personal loyalty to Roosevelt (who had appointed all four justices to the Supreme Court, and was soon to face re-election)
- acceptance at face value of fallacious claims (you know - like Republicans who deny global warming) - an army report asserted that Japanese spies had provided information leading up to Pearl Harbor although no Japanese-American names were provided and FBI investigations discounted this version of events
- justification of past actions - the war had already turned in the U.S.'s favor by the time Korematsu was decided - but the Court had unanimously supported a curfew specifically for West Coast Japanese-Americans previously, in the midst of the post-Pearl Harbor panic
- prejudice against Japanese-Americans (that's a scary picture of actor Tishuro Mifune), who were different - like Americans today distrust American Muslims.
And you would have been swayed by these things too - like you are all the time.
But not me.
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+ Black wrote the Court's opinion in Korematsu, joined by Douglas and Frankfurter. Jackson actually wrote a dissent, but still said the military should not release the detainees. Don't ask.
Korematsu has never been reversed -- it's just laying out there. According to that precedent, the army could round up Muslim Americans and send them to concentration camps on the theory that some might assist al-Qaeda.
Ref.: Noah Feldman, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.
