The Strength of a Story
Originally Published in the Kansas Bar Journal, December 2016
I was fortunate to have a history teacher who presented the past through rich storytelling that too often is lacking in the classroom. Max Girres, who will always be Mr. Girres to me, not only introduced me to American history, but he also taught my parents and their siblings. To this day, any reference to the War of 1812 prompts the memory of Mr. Girres wheeling a record player into our classroom to introduce us to Johnny Horton and “The Battle of New Orleans,” as he bopped along to the music with enthusiasm and panache. Needless to say, he earned the celebrity that comes with being a beloved teacher in a small town.
I thought about Mr. Girres recently as I was listening to a lecture on Korematsu v. United States, the landmark case addressing Japanese internment camps during World War II.[1] He came to mind due to a project he assigned that has stayed with me for the past 20 years. My friends and I created a report and a display on the internment camps in Iowa, one of which was just a 20-minute drive from my hometown.[2] We focused on the rope-making efforts by the POWs, and I suspect my youthfulness at the time caused me a degree of insensitivity when considering the Americans who were uprooted and imprisoned after the bombing of Pearl Harbor.
But it was not possible to remain insensitive when listening to Professor Kermit Hall’s analysis of the Supreme Court’s approach toward the constitutional authority for internment camps. In Korematsu, the plaintiff found himself caught in one of the tensest periods of American history: the response to Japan’s bombing of Pearl Harbor. Consider the setting in Topeka hours after the bombing, as described by a reporter to Time Magazine:
War came to Topeka at 1:30 PM on a quiet, warm, 56 degrees, sunshiny Sunday. Most Topekans had finished big Sunday dinners and were napping on their sofas. First flash over Columbia’s WIBW came at the end of the Spirit of ’41 program. I got it over NBC Blue network while listening to the Great Plays series. I was in the bath tub. The second bulletin in re the attack on Manila made me sick. My parents, brother and sister are in Manila. My wife turned pale and said, ‘There it is.’ My telephone rang a few seconds later. I was called to help issue an extra and write [a] ‘What it’s like over there’ story. Daily Capital switchboards were jammed immediately. One man, with distinct rural midwestern accent, asked: ‘What the Hell’s going on out there? Has Uncle Sam declared war yet? Why in Hell hasn’t he? How old do you have to be to get in the Army and Navy?’ Others wanted to know if it was true.[3]
By December 8, President Roosevelt asked Congress to declare war on Japan with the famous commentary, “Yesterday, December 7, 1941—a date which will live in infamy— the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.”[4] Roosevelt continued to describe how the Japanese Government deliberately deceived the United States, and “[w]ith confidence in our armed forces—with the unbounding determination of our people—we will gain the inevitable triumph—so help us God.[5]
In the following weeks, war became the country’s focus. As Dr. John Tierney Jr., Professor of International Relations, described it, Pearl Harbor wiped out the remaining calls for isolationism and brought unity across the country: “unity embraced all walks of domestic life, media and theatrical, unions, management, both political parties, all interest groups, women, men, the literati, Christians, Jews, and denominations of all stripes. From 1942 on, there was no commercial construction, from cars to dishwashers; all food was rationed and travel restricted.”[6]
This milieu shaped FDR’s decision to issue Executive Order 9066, which authorized the Secretary of War to prescribe military areas and exclude people from those areas.[7] In May of 1942, the Western Defense Command in San Francisco issued Civilian Exclusion Order No. 34, which evacuated “all persons of Japanese ancestry, both alien and non-alien.”[8]
From this action, Fred Korematsu, the son of Japanese immigrants, found himself under order to report for detainment. He was a 23-year-old welder at Bay Area shipyards. Korematsu’s parents left their home and reported to a racetrack south of San Francisco, but he stayed behind in Oakland with his Italian-American girlfriend.[9] He later left, even having plastic surgery on his eyes to avoid recognition, but the authorities eventually arrested him, and the newspapers branded him a spy.[10]
Eventually, Korematsu’s case made it to the United States Supreme Court, which issued a decision that today’s justices criticize as shameful.[11] The Court explained that “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures …”[12]
Those in dissent offered a critique that continues today. Justice Robert Jackson noted that by rationalizing the Constitution to show that it sanctioned such a military order, the Court, “for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” This fear of unchecked power is one that resonates in a time of tumult and fear. It is also a concern that should resonate with the legal community.
Our nation of laws is complex, and we have a responsibility to speak well on matters that warrant consideration and discussion. If we fail to offer thoughtful analysis and reason in times when it so often seems lacking, then we risk the washing away of procedures and protections that this country affords us. We must engage within the community to serve as a voice on the principles this country has historically valued.
Martin Niemöller was the oft-quoted German pastor who expressed poetic regret for failing to speak out when Nazi officials came for others who were in his community.[13] He observed that while others may have been part of his physical community, their differences prevented actualization of community. There was no empathy—only fear.
We must each work to understand the issues and choose to speak, so others can better understand the purpose of our profession and, more importantly, our justice system. You need not add a Johnny Horton soundtrack to the history behind the law, but a good story and explanation can go far toward increasing understanding and bringing meaningful value to our community.
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[1] Hall, K. (Author/Speaker). (2004). The Law of the Land: A History of the Supreme Court [Lecture]. Modern Scholar (citing Korematsu v. United States, 323 U.S. 214 (1944)).
[2] Horton, L. (2005). World War II Prisoners of War in Iowa. Retrieved from www.iptv.org/iowapathways/mypath.cfm?ounid=ob_000334.
[3] Rothman, L (2015). How 200 People Covered the Pearl Harbor Attacks for TIME (quoting James Bell’s wire to David Hulburd). Retrieved from www.time.com/4129649/pearl-harbor-news-gathering/.
[4] Roosevelt, F.D. (1944, December 8). Request for a Declaration of War with Japan. Retrieved from www.docs.fdrlibrary.marist.edu/tmirhdee.html.
[5] Id.
[6] J. Tierney, Jr. (2015). The Impact of Pearl Harbor on America. Retrieved from www.iwp.edu/news_publications/detail/the-impact-of-pearl-harbor-on-america.
[7] Exec. Order No. 9066 (1942). Retrieved from www.presidency.ucsb.edu/ws/index.php?pid=61698.
[8] Civilian Exclusion Order No. 34 (1942). Retrieved from www.nps.gov/nr/twhp/wwwlps/lessons/89manzanar/89facts2a.htm.
[9] Bai, M. (2005). He Said No to Internment. New York Times Magazine. Retrieved from www.nytimes.com/2005/12/25/magazine/he-said-no-to-internment.html.
[10] Id.
[11] Liptak, A. (2014). A Discredited Supreme Court Ruling That Still, Technically, Stands. New York Times. Retrieved from www.nytimes.com/2014/01/28/us/time-for-supreme-court-to-overrule-korematsu-verdict.html?_r=0.
[12] Korematsu v. United States, 323 U.S. 214, 223 (1945).
[13] Niemöller, M. First They Came for the Socialists…. Holocaust Encyclopedia. Retrieved from www.ushmm.org/wlc/en/article.php?ModuleId=10007392.
