David Inoue
This past month, many of us across the country and even around the world observed a Day of Remembrance to commemorate the 83rd anniversary of President Franklin D. Roosevelt’s signing of Executive Order 9066.
Matthew Asada, serving as the press attaché at the U.S. Embassy in Ghana, shared reflections of his family’s experience and the history of the Nisei veterans with members of the Accra community.
The signing of EO 9066 was especially monumental as it shifted the targeting from just Japanese, German and Italian nationals already being incarcerated under the authority of the Alien Enemies Act and expanded incarceration authority to any person.
While the Alien Enemies Act was used to round up and incarcerate foreign nationals from all three of the World War II Axis powers, EO 9066 would be used only against Japanese Americans. EO 9066 was broadly written to be used against “any or all persons” at the secretary’s discretion.
The president was, of course, very intentional in drafting EO 9066 in the way that it was. Had they written it to target only Japanese Americans, it would have been obviously discriminatory. Everyone knew that it would be used specifically against Japanese Americans, but they just couldn’t say that part out loud.
In case there was any doubt, Attorney General Francis Biddle later wrote to President Roosevelt that “you signed the original Executive Order permitting the exclusions so the Army could handle the Japs. It was never intended to apply to Italians and Germans.” The context and unspoken parts are what gave EO 9066 its power and devastating effect.
Laws are often written with a certain amount of vagueness and lack of clarity. It then becomes the responsibility of the courts to bring that clarity and interpret that uncertainty. Unfortunately, for the 125,000 people of Japanese descent, the Supreme Court ignored the context and ruled that it was OK for the government to enact policies such as curfews or exclusion orders for the sake of national security as it ruled in the Hirabayashi, Korematsu and Yasui cases.
Forty years later, the Commission on Wartime Relocation and Internment of Civilians gave its declaration that Japanese American incarceration was based in racism, not military necessity. Chief Justice John Roberts also declared Korematsu was incorrectly determined and no longer part of court precedent.
The problem with Roberts’ pronouncement is that he provides no details as to exactly what was wrong with the Korematsu decision. Ironically, the Muslim Ban case decision was a reaffirmation of the administration’s wide latitude to act in the name of national security, in fact a reaffirmation of the Korematsu decision.
As an “originalist,” Roberts and the other five conservative justices claim to look to the meaning of the original law as it was written, a contrast to the “contextualists.” The reality though is that law must be looked at in the context of when and how it was written.
Now, the administration is seeking to backtrack on years of civil rights laws on the basis that the laws are written with broad language that prohibit discrimination on the basis of race, sex, religion and/or national origin. The argument has been made that programs such as affirmative action or Diversity, Equity, Inclusion and Ability promoting programs are allegedly discriminatory against white men in particular.
When laws such as the 13th Amendment were written to broadly abolish slavery, they didn’t need to specify that we were creating this law to abolish slavery of any person and other people that have been subjected to slavery throughout our country’s history, it was very specifically in response to the fact that our country had institutionalized the slavery of Black men, women and children. Some things are clear without being stated explicitly in the law.
Similarly, when the Civil Rights Act of 1964 was passed, it was not passed in the context that overwhelming numbers of white men were being discriminated against, but because people of color, particularly Black people, were being targeted by Jim Crow laws that essentially replaced the oppression of slaveholding.
Today, so-called originalists are trying to make us think that these laws were all passed with race neutrality in mind. As Japanese Americans know all too well from Executive Order 9066, it is the context of the law that truly matters.
David Inoue is executive director of the JACL. He is based in the organization’s Washington, D.C., office. Click here to read past columns.
