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June 6, 2006
Patrick Gudridge: Honoring Mitsuye Endo, Remembering Her Case
The Supreme Court decision that bears her name is invoked more often now than in the past. This is partly a matter of circumstances. The events we associate with September 11, 2001, and succeeding years – like those of December 7, 1941, and afterwards – raise questions about government security measures, about their necessity and decency (a diplomatic term). The 1944 Endo decision declared internment to be groundless – unjustifiable treatment of Mitsuye Endo and therefore thousands and thousands of other persons. We read Endo, not surprisingly, to find out what we can learn.
In the process, Endo becomes controversial. Justice Douglas, it appears, took no forthright stand in writing for the Court, evoked no clear constitutional commands, seemingly assigned responsibility for his conclusion to Congress and President Roosevelt. Irony has its place. It is certainly possible to argue, however, that the Endo opinion, even as it declares internment void, was written in a way that absolves the principal branches of government of responsibility, treating the whole system of camps and their turbulent administration as simply a bureaucratic misunderstanding. On this reading, the Court also absolved itself. Endo does not call into question the defenses of government action Chief Justice Stone and Justice Black had constructed in Hirabayashi and Korematsu. Jerry Kang presses arguments like these especially incisively and emphatically. As one result, he has substantially increased the likelihood that readers of Hirabayashi and Korematsu, passing judgment on the work of the Supreme Court in those cases, will remember Endo as well, and the costs of the minimalist tack that the Court apparently chose to take.
The Endo opinion, it should also be said, is notably complex. If Justice Douglas does not invoke constitutional commands, he does plainly summarize constitutional premises, and he treats these premises as mandatory, as inescapably organizing judicial interpretation of the statutes pertinent to the case. It is within the bounds of this constitutionally framed reading, he asserts, that the conclusion that internment is unlawful becomes evident. This approach, we know, does not turn out to be unique to Endo. Justice Harlan would proceed quite similarly in his important “Red Monday” opinion in Yates v. United States, reading the Smith Act as encoding constitutional free speech concerns, and as thus inconsistent with jury instructions in Communist Party prosecutions. Justice Douglas himself later invoked constitutional premises as just as much part of the Constitution as particular provisions of the Bill of Rights in Griswold v. Connecticut. (Chief Justice Rehnquist and his colleagues would effectively echo Douglas in elaborating their distinctive conception of constitutional federalism.) If Endo is modest – and therefore subject to criticism – it is modest at only one level. Endo also illustrates an approach to putting to use and interpreting the Constitution that attributes dramatic depth to constitutional language.
We may also remember Endo as one of several efforts by Supreme Court Justices to respond to a distinctive predicament. The collapse of earlier judicial conceptions of constitutional law that became especially evident in 1937 and in immediately following years marked many doctrinal formulas prominent in pre-war opinions as dubious resources, as arguably suspect starting points. In Hirabayashi, in the long, no longer much read latter part of his opinion, Chief Justice Stone relied heavily on the older cases to sidestep the question of whether the curfew at issue there was fatally racially discriminatory. It is perhaps one measure of how unpersuasive that effort was, even at the time, that Justice Black’s opinion in Korematsu works so hard not only to minimize its own significance, but at its outset attempts to reformulate the catch phrases summarizing the Supreme Court’s treatment of racially discriminatory government action. This reformulation, as Greg Robinson has noted, would later prove to be important – although it is also evident that the Court either did not yet fully appreciate, or was not yet willing to appreciate the implications of its new gloss in the Korematsu case itself. Justice Douglas’s opinion in Endo, in this instance much like Justice Jackson’s spectacular effort in West Virginia Board of Education v. Barnette, shifts attention away from doctrinal formulas to constitutional premises, dodges the sinkholes of not yet fully reconstructed, not yet entirely judicially manageable constitutional law.
This jurisprudential context (as it were) excuses neither Hirabayashi nor Korematsu – nor Endo’s minimalist surface. But it should suggest to us, sixty or so years later, that we ought to take stock of our own resources. Before the 1950s were over, the Supreme Court was able – largely through the efforts of Chief Justice Warren and Justices Harlan and Brennan – to develop a rich repertoire of devices for restricting (if never entirely eliminating) the “collateral damage” of Cold War national security worries. Are we now sufficiently similarly situated? If we are not sure, we may want to recall Endo once more, this time set against both Korematsu and Hirabayashi, as part of a process of charting the map of our own reconstruction.
For whatever reason we remember Endo the case, we will have occasion to remember Mitsuye Endo, and the thousands and thousands of other people who were forced to carry on their lives in the camps. We benefit, therefore, without doubt.
This is the second in a series of essays I am posting this week to commemorate the passing of Mitsuye Endo. The first, Greg Robinson's, appeared yesterday. Jerry Kang's will appear tomorrow.
Posted by Eric at June 6, 2006 9:42 AM
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