18 Aug Eric Muller on the Lie Behind Hirabayashi
I’ve missed Eric Muller’s blogging at Is That Legal? — but he has obviously put his free time to good use, because his new article on the Supreme Court’s decision in Hirabayashi v. United States is sensational. Here is the abstract:
This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in 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. While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time the Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.
The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the “Oriental” as an invading horde may have overpowered the lawyers’ evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision – which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures – deserves to be installed in the Supreme Court’s Hall of Shame, alongside Korematsu, Dred Scott, and the Court’s other biggest mistakes.
If you read the article — and I hope you will — I think you’ll agree with Eric’s conclusion. The article is available on SSRN here.