Gordon Hirabayashi, a civil rights hero who was arrested while attending my alma mater and ended his career teaching at my native province’s flagship university, passed away at age 93. He was the last survivor of the three courageous people who refused to comply with racist internment orders during World War II, leading to negative-landmark precedents.
Hirabayashi’s case, as many of you know, made it to the Supreme Court. The civics textbook reputation of the Court notwithstanding, its record in terms of protecting unpopular minorities is not very good. So it was predictable that it unanimously upheld Hirabayashi’s conviction for violating the curfew order. “Because racial discriminations are in most circumstances irrelevant and therefore prohibited,” Justice Stone argued, “it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.” When the Supreme Court directly addressed the question of internment in the case of Fred Korematsu with similar conclusions, dissenting Justice Frank Murphy accurately summarized the constitutional error that also should have been recognized in Hirabayashi’s case:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.
And despite what Michelle Malkin and her enablers may try to tell you, the policy that led to Hirabayshi’s arrest was utterly lacking in military justification. The policy was a disgraceful stain on some otherwise admirable public careers: FDR, Earl Warren, Hugo Black, William O. Douglas. The utter indefensiblity of the internment did ultimately lead to some far-too-delayed justice for Gordon Hirabayashi:
Soon after retiring, Hirabayashi received a call that would prove consequential. Peter Irons, a political science professor from the University of California, San Diego, had uncovered documents that clearly showed evidence of government misconduct in 1942—evidence that the government knew there was no military reason for the exclusion order but withheld that information from the Supreme Court. With this new information, Hirabayashi’s case was retried and in 1987 his conviction was overturned.
“It was quite a strong victory—so strong that the other side did not appeal,” says Hirabayashi. “It was a vindication of all the effort people had put in for the rights of citizens during crisis periods.”