How the Supreme Court Rewrote Part VII of the Constitution: Concentration Camps and the End

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This essay is the seventh and last in a series. This first appearance February 4, 2022 Period time.

This is the final installment in a series on the nadir, or low point, of the United States Supreme Court. This was the period from 1937 to 1944, when the court ceased to protect the limits of the Constitution on the federal government. Our Constitution never fully recovered.

the first, second, third, Fourth, fifthand sixth episodes chronicled how the judges initially attempted to balance the demands of President Franklin D. Roosevelt’s New Deal with the rules of the Constitution. In 1937, however, Roosevelt began replacing sitting judges with New Deal supporters who had no previous judicial credentials. The reshaped bench successively rejected limits on federal spending, federal ownership and federal economic regulation. In at least one case, he abandoned habeas corpus and jury trial.

This final episode tackles the court’s role in what was, aside from slavery, the most flagrant violation of civil rights in American history. He adds some observations on how the Court’s abysmal record from 1937 to 1944 continues to affect us today.

1942-1944: The Attack on Japanese Americans

In 1942, the military authorities imposed a curfew on the populations of Western states. Curfews are understandable in times of war. This one, however, only applied to one ethnic group: people of Japanese ancestry, including US citizens. People of German and Italian ancestry have never faced curfews, although the episode of the German saboteur mentioned in the previous episode showed that the East Coast was vulnerable to attack. The evidence was strong that racism contributed to the distinction.

Two additional military orders required all people of Japanese ancestry in these western states to (1) stay home and (2) leave the affected states. These two orders were obviously contradictory.

Another decree required all people of Japanese ancestry to report to a “civilian checkpoint.” Civilian checkpoints were centers of deportation to concentration camps. There, people of Japanese descent—again, including U.S. citizens—were detained indefinitely. There were no charges to answer and no selection procedure to separate the loyal from the disloyal. (The British, on the other hand, used a screening procedure to test the loyalty of British residents of German and Austrian ancestry. Over 97% of those screened were released.)

All of these orders were approved by Roosevelt and, indirectly, by Congress.

Gordon Kiyoshi Hirabayashi was a young American citizen born of unquestioned loyalty. He broke curfew, but continued to live in his home. He thus complied with the restraining order but breached the (inconsistent) dismissal order.

Hirabayashi was found guilty of violating curfew and restraining orders and was sentenced to prison for each. The sentences were concurrent, meaning they had to be served at the same time. He appealed both convictions and the case ended up in the Supreme Court.

Hirabayashi v. United States (pdf) was decided June 21, 1943. Chief Justice Harlan Fiske Stone wrote for a unanimous court. He first upheld the conviction for violating the curfew. He would then be expected to assess the conviction for violation of the removal order. This was important for two reasons. First, the order of removal was far more intrusive than the curfew. Second, the only way to comply with both restraining and stay orders was to show up at a civilian checkpoint and be incarcerated.

But Stone never addressed the conviction for violating the removal order. On the pretext that Hirabayashi was going to prison anyway, he left the young man with an unreviewed – and probably indefensible – criminal conviction on his record. A federal appeals court eventually overturned that conviction in 1987.

Rutledge joins the bench

In October 1942, Judge James Byrnes resigned to lead FDR’s Office of Economic Stabilization. His replacement, Wiley Rutledge, took office in February 1943. (The essay continues below the painting.)

When he was a law professor, Rutledge had been a strong supporter of the New Deal and the judicial packing plan. FDR rewarded him with a judgeship on a federal appeals court. Rutledge served there for four years before the president sent him to the Supreme Court. Rutledge was the only one of Roosevelt’s many SCOTUS picks with significant judicial experience.

From FDR’s point of view, Rutledge was a good choice. First, Rutledge agreed with Stone’s decision in the case. Hirabayashi Case. Second, and more importantly, he supported the president in such an outrageous abuse of power that even other FDR appointees rebelled.

1944: The Japanese Concentration Camp Affair

Constitutional scholars of all political stripes agree that Korematsu v. United States (pdf) was one of the worst Supreme Court decisions ever. Fred Toyosaburo Korematsu, another young American citizen of unquestioned loyalty, had been convicted of disobeying the restraining order. On December 18, 1944, the judges upheld the conviction.

The court opinion was composed by Hugo Black. This opinion, like so many pronouncements by the Supreme Court at that time, was fraught with evasions, doublespeak and sheer dishonesty.

Initially, Black claimed to grant Korematsu the highest level of protection, what we now call “rigorous scrutiny.” The racial restrictions, Black wrote, were “immediately suspect” and “under… the most rigorous scrutiny”. But then Black then abandoned the young man because “we cannot say that…the government had no reason to believe” that the withdrawal was militarily desirable. Of course, a standard like “We can’t say that…the government had no reason to believe” isn’t “the most rigid test.”

Black claimed that the order violated by Korematsu was only for removal. However, Korematsu proved that the only authorized way to follow the dismissal order was to report to a civilian checkpoint. There he would be detained and sent to a concentration camp with no hope of release. Towards the end of the notice, Black insisted: “[W]We find it unjustifiable to call them concentration camps. Another lie.

A federal court overturned Korematsu’s conviction in 1983. Yet the Supreme Court never overturned the “reasoning” of the case. Korematsu Case. It endures today as the first application of “rigorous scrutiny” to laws infringing on certain constitutional rights.

It also lives on as the first case in which the court eluded rigorous scrutiny – something he has done too often when testing constitutionally suspect measures favored by the political left. For example, government racial discrimination is supposedly subjected to rigorous scrutiny. But as recently as 2016, judges rigged that standard to allow state universities to discriminate against Caucasians and Asian Americans (pdf).

Conclusion: The Nadir of the Supreme Court

The years 1937 to 1944 represent the low point — the nadir — in the long history of the Supreme Court. The court had made bad decisions before, some of which were egregious. But he had never ignored his fundamental responsibility to defend the Constitution so deliberately and for so long.

At the time of Korematsu case, there were signs that the nadir was passing. The decision was not unanimous. Frank Murphy and Robert Jackson, both FDR appointees, dissented. Murphy’s opinion gathered strong evidence that the military orders were motivated by racial bias. Owen Roberts was also a dissenter. After a career of dithering, his powerful impeachment of government actions may well have been his finest hour.

Moreover, the same day as the Korematsu decision, the court announced the result in Ex Parte Endo (pdf). The judges granted the request of a loyal American citizen to leave her concentration camp, after two and a half years of detention.

The steel seizure cases of 1952 (pdf) were the clearest sign that the era of judicial toadyism was over. The court strongly rejected the unilateral nationalization of the American steel industry by President Harry Truman. Hugo Black and Robert Jackson took the lead: Black wrote the opinion for the court. Jackson penned a memorable and highly quoted deal. The president, Jackson pointed out, was the commander-in-chief of army and navy. He was not the commander-in-chief of the country.

All of this was welcome. But the Constitution had suffered enormous damage, from which it never fully recovered. The current state of the federal government is proof of that.

During the third century, the Roman Empire was beset by dynastic chaos, civil war, plague, and multiple invasions. He almost collapsed. From around 270, however, very capable and hardworking emperors managed to recover. Their efforts preserved the Roman state intact for another century and a half.

However, this recovery was only partial. This latter empire was a darker place than its former self: less prosperous, less extensive, less stable, and less free.

As well as the United States. The Constitution that made American greatness possible has been seriously compromised. Whether we fix it entirely is our decision to make. We don’t have emperors to do the work for us.

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