70th Anniversary of the Act of March 21, 1942: Criminalized Being a Japanese American

Gordon Hirabayashi, 1945

The forced interment of Japanese Americans during WWII is a sad, dark shadow on American History.  By Executive Order 9066, President Franklin Roosevelt authorized the Secretary of War to designate "military areas" within the US from where US citizens and residents (of Japanese ancestry) may be excluded.  The Legislative Act of March 21, 1942 (Public Law 503) ratified the the president's order and made it a criminal offense to defy that order.

The law went into effect immediately; the judicial review of the law took some time.  The first Supreme Court case to review the constitutionality of Executive Order 9066 and the Act of March 21, 1942 was Hirabayashi v. US, 320 U.S. 81 (1943).  A senior at the University of Washington, Mr. Hirabayashi was charged with two crimes: failing to remain within the designated military area after curfew and failing to report to the Civil Control Station.  Mr. Hirabayashi challenged his conviction on the grounds that the laws unconstitutionally discriminated against US citizens of Japanese descent.  Mr. Hirabayashi was born in the US and had never traveled to Japan. 

The Supreme Court acknowledged that race is, most of the time, irrelevant and that discrimination based on race is, most of the time, prohibited.  But, the Court said that when dealing "with the perils of war," race may be relevant for acts taken in the interest of national defense or the "successful prosecution of war."  In support of their conclusion, Justice Stone quoted Justice Marshall in the landmark decision of McCulloch v. Maryland.  "We must never forget, that it is a constitution we are expounding," "a constitution intended to endure for ages to come, and, consequently, to be adapted to various crises of human affairs."  The "crisis of human affairs" in McCulloch was the creation of a national bank system. The McCulloch decision firmly established the supremacy of federal law over state law, reasoning that the authority of the US Constitution derives directly from the people and not from the states.  The effect of McCulloch was to extend the authority of the US government beyond specifically enumerated powers.  The authority to create a national bank may not be expressly created by the Constitution, but that authority is granted between the lines by the "necessary and proper" clause.  The Legislature has the power to create "all laws" which are necessary and proper for executing the express powers vested by the Constitution.

It is easy to look back and criticize an opinion forged in throws of world war, but when a nation needed calm sobriety, the Judiciary failed its citizens.  In light of McCulloch, the 1942 Court should have asked "Did the people of the United States grant the federal government the power to detain its citizens based on race without due process of law?"  "Various crises of human affairs" cannot be a justification and judicial tool for abrogating citizen's freedoms.  What we learn from Justice Marshall in the McCulloch case is that an analysis of constitutional power begins with the citizens of the nation who relinquished their autonomy "to form a more perfect union, establish justice, insure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity."