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The Biggest Lie of the Greatest Generation

By Eric Muller

I haven't been blogging, but I've been writing. To wit: a new article I'm posting to SSRN today entitled "Hirabayashi: The Biggest Lie of the Greatest Generation." The article presents important new archival findings about Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. The Court concluded that because of the enormous security threat facing the United States -- a threatened invasion of the West Coast by Japan in the months after the Pearl Harbor attack -- the ordinary constitutional prohibition on "discrimination based on race alone" was not controlling. The Court emphasized the threat of an invasion because that is what the government's lawyers told the Court the West Coast was facing. "Invasion" was the constant drumbeat not only of the government's brief but also the Solicitor General's oral presentation to the Court. It turns out that all this talk of invasion was a lie. At the time that military officials planned and implemented the racial curfew, there was no danger of a Japanese invasion of the West Coast. The army and navy viewed any sort of Japanese invasion of California, Oregon, or Washington as impracticable. They were neither anticipating nor preparing for any such event. Indeed, during the key time period of early 1942, the Army was more concerned with scaling back the defense of the West Coast from land attack than with bolstering it. What's more, the lawyers who signed the government's brief in Hirabayashi knew this. By the time they filed the brief in May of 1943, they had known for months that the military foresaw no Japanese invasion of the coast in the months after Pearl Harbor, and that the curfew was not part of a plan to resist an invasion. Yet this knowledge did not stop them from representing to the Court in Hirabayashi that the "principal danger" that military officials had "apprehended" was "a Japanese invasion" which "might have threatened the very integrity of our nation." My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception. Perhaps I'll blog more about that soon. In the meantime, though, you can download the article here.

Full post as published by Is That Legal on August 18, 2008 (boomark / email).