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July 11, 2006

A Further Reply to Kim Roosevelt

K
im has responded to one of my earlier comments – the one expressing doubt that government misrepresentations were what led the Korematsu Court to uphold mass exclusion – but not to the other comment, which asked why he is comfortable positing judicial deference to military decision-making as a relevant (let alone a legitimizing) principle in a case involving the racial deportation of U.S. citizens on U.S. soil. Few people would contend, of course, that a court should enjoin an allegedly illegal bombing run in a theater of operations overseas. (Or lots of other kinds of military operations.) But the claim that the military deserves anything like that degree of judicial deference in orders directed against U.S. citizens on American soil strikes me as pretty deeply controversial – something controversial enough to need defending. Surely it is too controversial a proposition to wield the legitimizing force that Kim gives it in his analysis of Korematsu.

As for Kim's response to my other comment, I think we all have to confess that we are engaging in classic counterfactual speculation. Kim believes that the Supreme Court would have struck down rather than upheld the exclusion of Japanese Americans if two things had been different from how they actually were: (1) if the government had not included an inaccurate reference to alleged shore-to-ship signaling by Japanese Americans in its Korematsu brief, and (2) if the government had accurately reported that General DeWitt's reason for not sifting the loyal from the disloyal before evacuation was that he thought such a sifting was impossible.

Jerry Kang deals ably with the first of these; I refer readers to his work for a full account of why this government misrepresentation probably did not lead the Justices in the majority to defer to the military. One point, though, is worth special mention: the same justices unanimously upheld the racially selective curfew against Japanese Americans in the Hirabayashi case in 1943, long before the government filed its misleading Korematsu brief. Plainly the Court did not need the misrepresentations about shore-to-ship signaling in order to uphold the racially selective curfew. So why assume that this was the "fact" that led the majority vote to sustain mass exclusion a year later?

And what of the second counterfactual? Would the Supreme Court have struck down rather than upheld the government's program if the government had honestly reported that General DeWitt thought a sifting of the loyal from the disloyal was impossible because there was no way of distinguishing a loyal from a disloyal Japanese American? Kim says yes, because this admission would have revealed to the Court that DeWitt's basis for evacuation was racism ("you can't tell 'em apart") rather than military necessity ("there's no time to tell 'em apart").

This strains belief, I fear, to the breaking point. The majority was well aware – Justice Murphy made great hay of it in his dissent – that General DeWitt had opined in his official justification for his decisions that "the Japanese race was an enemy race" and that even in the second-generation Japanese born in the United States, these "racial strains" were "undiluted." The majority knew full well that General DeWitt had stated – in an official publication – that the way he knew that Japanese Americans were planning sabotage and espionage was that they hadn't yet committed any.

Justices Rutledge and Black knew these things. And yet Kim maintains that if they'd known that he thought racial loyalties made a sifting impossible, they would have voted to strike down rather than uphold Fred Korematsu's conviction for violating the evacuation order, because then they would have understood that General DeWitt's decision was infected by racism.

Deeply implausible. I'm not buying it.

Posted by Eric at July 11, 2006 10:58 PM

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