S. HRG. 98-485









S. 1520


JULY 27, 1983

Serial No. J-98-57

Printed for the use of the Committee on the Judiciary

25-942 O


STROM THURMOND, South Carolina, Chairman
JOSEPH R. BIDEN, JR., Delaware
EDWARD M. KENNEDY, Massachusetts
ROBERT C. BYRD, West Virginia
JOHN P. EAST, North Carolina


ARLEN SPECTER, Pennsylvania

VINTON DeVANE LIDE, Chief Counsel and Staff Director
DEBORAH K. OWEN, General Counsel
MARK H. GITENSTEIN, Minority Chief Counsel

ARLEN SPECTER, Pennsylvania
JOHN MAXWELL, Chief Counsel and Staff Director
LISA HOVELSON, Legislative Assistant

NOTE: [Bracketed] text in original. This excerpt starts from page 351 of the record.

Senator GRASSLEY. Our next witness is Dr. Ken Masugi, who is currently a resident fellow at Claremont Institute for the study of statesmanship and political philosophy in California. Dr. Masugi has a personal interest in this issue, as his parents were among those evacuated and relocated. Although not completed, the doctor is in the process of preparing a study of the Commission's report and recommendations. We will be interested in that report once you have finished it, Doctor. For now, I am pleased that you have also agreed to travel from the far coast to be with us today to present your testimony.

I am going to have you go through your testimony, and then I think I will break at that point, to vote. There will be approximately a 15-minute break at that point, and then I will come back and ask you questions and go on to the last witness.


Dr. MASUGI. Thank you, Senator. It is with some sadness that I find myself testifying against the Commission, its recommendations, and S. 1520. As the son of parents who were relocated, I have felt that their experience deserves thoughtful reflection by a larger public. My written remarks suggest the principles for such a thoughtful inquiry.

In reviewing the Commission's report and recommendations, one encounters three leading characteristics: intellectual dishonesty, moral posturing, and political opportunism. Moreover, any legislation stemming from the report and recommendations will be far more likely to promote racism and bigotry than to dampen those evils. Hence, it is the moral duty of this subcommittee, insofar as it upholds thoughtful political inquiry and the colorblind Constitution, to politely decline to accept the report as the basis for legislation, and emphatically reject its recommendations as fatally flawed in their assumptions, approach, and conclusions.

The report's first great flaw is that it does not attempt to take the perspective of the responsible persons at that time, World War II. It does not understand those responsible officials as they understood themselves. What should, above all else, inform inquiry into the relocation is the massive fact of world war with fanatical, tyrannical powers, including one that had just attacked American soil. Winning the war was the great task of politics then, and all other policies had to be subordinated to that overreaching goal. To make any other approach to the history of those times cannot but produce intellectually dishonest conclusions.

The second great flaw, moral posturing, is closely related to this first one. In 1983, we live in an America somewhat closer to its ideals concerning race and ethnicity than we did in the 1940's. All of us supporters of a colorblind Constitution look back with indignation at that vile badge of slavery, segregation, and its manifestations, ranging from all-white baseball teams to exclusion from political life, but to use our current enlightened beliefs to develop policy concerning events which took place in less enlightened times would require ceaseless revision of our laws in order to make up for past generations' shortcomings. No government can function on such a principle, and it is preposterous to think that the ethnic Japanese exclusion has been the greatest stain on American political life. Denying that we can legislate now on events and a mindset of 40 years past does not, however, mean that we cannot condemn evils in our history. On the contrary, if we as a nation were required to correct every evil or imperfection we recognize, we would simply cease to acknowledge any evils at all, past or present. Such nihilism is the consequence of the ethical responsibility the Commission implicitly endorses.

The third great flaw, chiefly in the recommendations, is political opportunism. At this point, the $20,000 symbol of apology is almost secondary. As Commissioner William Marutani put it back in 1979, "I find it personally insulting as an American that * * * my liberty, my dignity, can be 'bought.'"

However, by far the most dangerous Commission recommendation is its proposal to establish an educational foundation that would teach Americans the truth about the evacuation and similar events. Of course, such a foundation, captured and manned by the constituency that created it, would damn America for its past in the most irresponsible way imaginable. The "public educational activity" of this foundation would be little more than ideological fulmination masquerading as scholarship.

The proposals of S. 1520 are almost as appalling. Why should Government make special grants of scholarships, cultural services, health care, and housing to Japanese Americans? Any benefits received through a process that pleads violations of rights but is in fact based on political manipulation will taint recipients. This legislation will stigmatize Japanese Americans. Supporters of a colorblind Constitution must not permit such Government encouragement of discrimination.

Despite the variety of ways in which this country treated ethnic Japanese as second-class citizens, it must be kept in mind that it permitted them to fight for America, which they did with distinction in both Europe and the Pacific during World War II. Had they been denied this honor, our status in this country would be a low one.

As always in such matters, Abraham Lincoln's comments are instructive. Here he writes to James Conkling:
You say you will not fight to free negroes. Some of them seem willing to fight for you, but no matter * * * Negroes, like other people, act upon motives. Why should they do anything for us if we will do nothing for them? If they stake their lives for us, they must be prompted by the strongest motive, even the promise of freedom and, the promise being made, must be kept. And when peace comes there will be some black men who can remember that with a silent tongue and clenched teeth, and steady eye, and well-poised bayonet, they have helped mankind on to this great consummation; while I fear there will be some white ones, unable to to forget that, with malignant heart and deceitful speech, they have strove to hinder it.
The Japanese American experience during World War II is far more appropriately memorialized through a monument, one, really, for all Americans of racial and ethnic groups which, though legally relegated to second-class and inferior status, fought for their country and gave "the last full measure of devotion," hopeful that future generations would know a more enlightened America. Such a monument could inspire far more thoughtful reflection on the nature of America and the place of Japanese Americans in it than the Commission's brazen insistence on a national apology.

Senator GRASSLEY. Thank you. I am going to take a couple of minutes now, to use up every minute we have, to start the questioning, so if you will just wait for a moment, and then I will leave when the second set of bells rings.

I want to repeat an earlier question that I asked. The Commission maintains that its study has uncovered documents which show not only that no military necessity existed for evacuation, but that the leaders during the period were fully aware that Japanese-Americans posed no security threat. Has your review of the Commission documents, along with other information, led you to a different conclusion?

Dr. MASUGI. Well, I think the Commission takes a highly biased reading of these documents, because, again, I don't think they had them with Pearl Harbor in the background, in the immediate background, and thus they take the view that, perhaps Roosevelt, or whoever else was reading these documents, might have concluded that evacuation was not justified.

But what officials did, and I think did quite reasonably at this time, was to take the worst-case possibility, and in that regard neither Munson's nor Hoover's comments, nor so far I can tell, any other thing that I have seen completely exonerates all Japanese Americans.

Senator GRASSLEY. The Commission in its report maintains that military necessity was not the reason for exclusion, because sabotage or espionage could be carried out just as effectively in the interior. What is your response to this rationale?

Dr. MASUGI. Well, the history of America is a history, to a great extent, of ethnic groups becoming recognized by, and then coming to believe in America's fundamental ideal of equality. But it is also the fact that these various different ethnic groups have stronger attachments to the lands of their forefathers, or fathers, than do other people. As one example, Irish-Americans have often been opposed to American foreign policy, which has often aligned itself with the British.

It was only reasonable to assume that Japanese Americans would be more sympathetic than other Americans to Japanese foreign policy at the time. This does not in any way imply that many would have been actively disloyal, but it was a reasonable assumption to think that there would have been that sympathy.

The Commission makes this argument to stress the arbitrariness of the relocation policy. But one could just as easily interpret this action as an indication that this Nation could allow ethnic Japanese to be free in inland areas but that their presence on the coast was simply too much a risk to undertake in time of war, with threat of invasion. If the Japanese had invaded the west coast, one could imagine harsher treatment for those who were relocated. In other words, this apparent arbitrariness really indicates significant liberality.

Senator GRASSLEY. The committee will stand at ease until I get back, which I think will only be 10 minutes until I cast my vote.

[Recess to vote.]

[The prepared statement of Mr. Masugi follows:]




We hold this annual celebration (the Fourth of July) to remind ourselves of all the good done in this process of time of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves -- we feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations. But after we have done all this we have not yet reached the whole. There is something else connected with it. We have besides these men -- descended by blood from our ancestors -- among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe -- German, Irish, French and Scandinavian -- men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that "We hold these truths to be self-evident, that all men are created equal," and they they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, ...and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world. (Abraham Lincoln, July 10, 1858)
We henceforth strictly forbid the holding of any correspondence or communication with France or Spain or their subjects. But because there are remaining in our Kingdom many of the subjects of France and Spain, We do declare our Royal intention to be, that all the subjects of France and Spain, who shall demean themselves dutifully towards us, shall be safe in their persons and estates.
This passage will jar the modern mind. We see how strong was the structure of Christendom in these and with what restraint even warring nations acted. Of course, nowadays, with the many improvements that have been made in international morals and behavior, all enemy subjects, even those whose countries were only technically involved, even those who had lived all their lives in England, and the English women who had married them, would, as in every other state based on an educated democracy, be treated within twenty-four hours as malignant foes, flung into internment camps, and their private property stolen to assist the expenses of the war. In the twentieth century mankind has shaken itself free from all those illogical, old-world prejudices, and achieved the highest efficiency of brutal, ruthless war. (Winston S. Churchill, Marlborough, vol. 2, 1934, pp. 555-56)

(The curfew and relocation cases) involved an exercise of the war power, a great leveler of other rights. Our Navy was sunk at Pearl Harbor and no one knew where the Japanese fleet was. We were advised on oral argument that if the Japanese landed troops on our west coast nothing could stop them west of the Rockies. The military judgment was that, to aid the prospective defense of the west coast, the enclaves of Americans of Japanese ancestry should be moved inland, lest the invaders donning civilian clothes would wreak even more serious havoc on our western ports. The decisions were extreme and went to the verge of wartime power; and they have been severely criticized. It is, however, easy in retrospect to denounce what was done, as there actually was no attempted Japanese invasion of our country. While our Joint Chiefs of Staff were worrying about Japanese soldiers landing on the west coast, they actually were landing in Burma and at Kota Bharu in Malaya. But those making plans for defense of the Nation had no such knowledge and were planning for the worst. (Justice William O. Douglas, DeFunis v. Odegaard, 1974, 416 U.S., at 339.)


When I first heard of redress and the movement to inform a greater public of the relocation and internment of Japanese-Americans, I was supportive, for I felt then -- and continue to feel today -- that this episode was -- and remains -- misunderstood. My parents' recollections of their life in "camp" persuaded me that something terribly wrong had happened to them and that their story deserved a wider audience. Innocent people suffered on account of their nationality. I should add that one uncle of mine served in the 100th Infantry Battalion, another was a no-no boy.2 The impression my elders made upon me caused me to reflect on questions of justice and injustice, which in turn attracted me to the study of law and political philosophy, which still -- many years later -- continue to preoccupy me as a scholar and writer. (As irrelevant to the quality of my testimony as I believe this fact to be, perhaps I ought to state that if the Commission's financial redress recommendations were accepted, my parents would receive $40,000.)

However, the more I studied the redress movement and its premises the more suspicious I became. Thoughtless, arbitrary action characterized much of the relocation policy, as I understand it, but unfortunately the Commission on Wartime Relocation and Internment of Civilians has itself produced a history that overlooks the circumstances of the time and a set of recommendations which will only serve to increase racism. Moreover, any legislation which accepts the Commission's Report as its starting-point is doomed to repeat these errors. And error in this matter is not simply an abstract intellectual miscalculation but rather a decision which may ruin the lives of generations of Americans, through the encouragement of racism and the propagation of bad history, particularly concerning the responsibilities of national leaders in times of crises. And thus will it be with any legislation which takes it bearings by the Commission Reports.

What then would have been the proper way of looking at the sad, almost tragic episode? I write as a student of law and American political philosophy who desires to understand events that shaped his being as an American. What matters to me is the truth about these things, because I am persuaded, for the reasons that I will shortly present, that they bring out the truth about America.

What is it about the Report and Recommendations that I find so objectionable? Let me begin with the broadest objections and then go to particular ones.

My Commission

If I were charged with responsibility for establishing a commission to reconsider the fate of the ethnic Japanese in this country, I would proceed the following way: First, I would reflect on whether a commission is necessary. There are, after all, numerous histories of the relocation. Would a commission, established now, be able to surpass these previous efforts? What would prevent another history of that episode from being a mere summary of earlier studies? In other words, what steps would this commission take to insure that it would not simply paraphrase what other historians had previously written? Since the more well-known previous histories (such as those by Bill Hosokawa, Roger Daniels, and Michi Weglyn) had all attacked the relocation, one bound and determined to secure a fresh look might want to resort to other scholars, who might be under less constraint to re-defend their past writings.

Assuming I was obliged to form a commission (Congress forced the money on me, and I simply had to spend it) I would take care that it represented diverse viewpoints. Although government commissions are bipartisan, they can of course be stacked in other ways, and I would make sure that such a charge could not be made against my commission. The sorts of people I would want to see on my commission would include, for example, American foreign policy experts, scholars of American ethnic problems, students of American political philosophy, and former defenders of racial segregation who have seen the error of their ways. All of these viewpoints could make invaluable contributions to an understanding of a complex problem in American political, ethnic, and military history.

I would make sure that my commission -- formed some forty years after the incidents it was to investigate -- kept in the forefront of their minds the mores and political situation of the times -- certainly not to reaffirm all that was true of America in the forties, but simply to insure that the actions of those being studied are properly understood, that the participants in those actions are understood as they understood themselves.

Given the changes -- in most cases, improvements --in American life since the forties, it behooves the investigator of life then to keep in mind that racial segregation was the rule of the day, not only in the South but much of the rest of America: All-white army units, all-white baseball teams, anti-miscegenation laws. It would be extraordinary arrogance to use the standards and the legal obligations of the 1980s to evaluate what happened in time of war in the 1940s. My commission would strain to make sure it was not indulging in such a tempting practice, which would inevitably produce inaccurate history. Indeed, a commission formed on any other principle but this would not require at all history in the sense of a search for facts about the past -- who needs any such facts if we, in contrast to benighted, reactionary past generations are resolutely assured of what proper moral and political judgment requires on each and every occasion? Armed with such a moral-political view, all we need is a passing glance at the actions of another age to condemn it -- and why stop with the evacuation of Japanese-Americans? Why should the unfairness they endured make them peculiarly eligible for latter-day sympathy? My commission would have been most sensitive to avoid an absurd moral logic that would thoroughly condemn all previous American history. Such haughtiness makes the follies and shortsightedness of the current generation the standard for all time. What we seek, after all, is the truth about matters, and arrogance is never an aid in such a difficult task.

Finally, I would make sure that my commission's staff was one of unimpeachable integrity, that my commission could use it, having absolute confidence that it would fearlessly seek the truth, even -- especially -- when it would turn out to be unpleasant.

I have described some of the leading traits my commission would have had, if I were obliged to have one at all.

This Commission

So why, then, did this Commission come to be in the way that it did, forty years after the episodes it investigated? In fact, ignorance about the relocation prevailed -- both as to its having taken place and as to what happened. If people were not ignorant of the evacuation, they often possessed distorted views that turned an unfair act into an utterly diabolical one. For example, Paul Conrad, editorial cartoonist for the Los Angeles Times, once portrayed former Senator Hayakawa (whose anti-redress rhetoric leaves much to be desired) at a piano, with Hitler admonishing him "Play it again, Sam." An episode of the television series Lou Grant made the primary motive for the relocation economic exploitation -- cunning white war profiteers taking the personal property and lands of hard-working ethnic Japanese. Of course the relocation centers were not Hitler's death camps, and the reasons for relocation cannot be reduced to the vulgar Marxist one. But images such as these prevailed among the people who thought they knew something about the relocation. Moreover, media coverage of it, both before and after the Commission's Reports, failed to mention that evacuees in the relocation centers could leave if they had employment or a place in college, and overlooked mentioning the Evacuation Claims Act of 1948 that allowed some compensation for private property losses caused by the relocation. Add to this lack of information or prevalence of misinformation the image of Japanese-Americans as "quiet Americans," a "model minority," prosperous, resourceful, hard-working, and well-educated, and suddenly emerged a worthy object of compassion.

But this combination of factors would not have sufficed to produce a drive for a Commission that would yield the results it did were it not for Japanese-Americans who were activists in the sixties and then became lawyers and community organizers. Possessed of a twisted romanticism, these children of those who were relocated supplied the impetus for this drive, and for them the Commission was a means of achieving one of the goals of the sixties protest movements: To show that America is a racist society, and that even in the case of World War II, America's noblest foreign war, America was corrupt, having its own "concentration camps." If nothing else comes of the Commission and its Reports, they will make fine material for a case study of how a small but intense group can achieve its goals.

Let me now turn to Personal Justice Denied, the Report of the Commission on Wartime Relocation and Internment of Civilians. The titles of both the book and the Commission are revealing for the assumptions they make. What does "personal" add to "justice"? Is not justice by itself sufficient? But does not justice have to take account of circumstances? Does not the exercise of the war power, as Justice Douglas states in the quotation above, permit weakening of individual rights? By pleading in terms of personal justice, is not the Commission asking for a higher, more refined and exacting standard than would normally prevail? What would justify such a special claim? Also, one might question whether the term "internment" is appropriate given that the relocated ethnic Japanese were not legally required to stay in the guarded, barbed-wire surrounded relocations centers, if they could manage other arrangements, work or college outside the exclusion area. In fact, most ethnic Japanese had no real choice in the matter, so the effect of establishing the relocation centers was to make them internment camps for most. I myself have used the term "internment" in my own writing on this subject, and I should add that it must be used with care. Finally, the "civilians" in question included both resident aliens and U.S. citizens, whose ancestors, if not themselves, were from Japan, which had attacked Pearl Harbor and brought the U.S. into World War II.

Misunderstanding the Past

I intend to write a more thorough investigation of the Commission's Report, and for now I will make the following observations concerning some inaccuracies. The major problem, as I suggested in my questions concerning the composition of my Commission on this subject, is that of the arrogance of hindsight. The Commission tended to label as "war hysteria" what reasonable men saw at the time as natural responses to dramatic, disturbing events. (And certainly much hysteria prevailed, and not only concerning ethnic Japanese.) This in turn led to the notion that the military had virtually nothing to contribute to the Commission's investigations, other than to be mocked as preposterous Colonel Blimps ("a Jap is a Jap" DeWitt). What else could explain the Commission's failure to include in its deliberations 1941 Japanese diplomatic cables indicating espionage activities by ethnic Japanese? This omission is doubly disturbing: First, the Addendum to the Report is astonishing for its flippancy in denying that this "new" information published in 1977 should cause any re-evaluation (see p. 6 of the Addendum) and confirms one's suspicions that the Commission was simply out to use whatever materials it could in order to reach the result it wanted to affirm -- an unfortunate trend in the law today that undermines the quest for justice by making it the product of will or whim. Second, an objective observer is compelled to ask what else the Commission excluded from its history. Is there other information it overlooked and excluded?

One notes this arrogance of hindsight in the Commission's ahistorical reading of documents. The Pearl Harbor attack discredited American intelligence and gave Imperial Japan an aura of invincibility. In such a climate officials would read any intelligence reports -- whether by Munson, Hoover, or others -- with the worst case in mind, and it was absolutely reasonable to do so. The Commission, on the other hand, tends to read the documents so they will deny the necessity of sweeping measures such as evacuation.

Closely related to this tendentiousness is the failure to reflect more thoroughly on the place of ethnicity in American political life. In this regard one must make a significant differentiation: Ethnic Japanese suffered from racial discrimination but the evacuation was a case of ethnic distinction, directly related to the Pearl Harbor attack. Much has been made of the failure to intern Germans and Italians, but only Japan directly attacked American soil. It may well have been that Americans learned something from the anti-German excesses that followed World War I. And one should not forget as well that the bonds of trust among citizens are created in part through sharing of a common religious heritage, and most ethnic Japanese did not share in the western faiths. (Recall that Japan had at that time a civil theology; it would not be far-fetched to compare the Emperor then with the Ayatollah Khomeini today. Incidentally, it would be useful to compare the contemporary reaction to the Iranian hostage crisis with the evacuation order then, while keeping in mind that some 60,000 American citizens were involved in the relocation. The Carter administration applied pressure to Iranian visa holders, and the courts upheld it. Consider that such a respected gentleman and public servant as George Kennan supported internment of Iranians in retaliation for the hostage seizure.)

Ethnic heritage has traditionally affected the foreign policy views of Americans. Hence it is that the Irish Americans, for example, have often found themselves in opposition to American foreign policy, when it has supported England, as it usually has. It is not only the case that the ethnic Japanese are no different from other ethnic groups in this regard -- they were even more distinct than other immigrant groups.

But if ethnic Japanese were relocated on the mainland, why were relatively few interned in Hawaii? If ethnic Japanese were a threat, surely they were most a threat there, where they were concentrated. But this overlooks the fact that Hawaii -- then not a state of course -- was governed like a military camp for all its inhabitants. For example, military commissions had jurisdiction over criminal offenses.

The Report is also remarkably simplistic in the manner it understands the legacy of the Japanese-American cases, Hirabayashi, Korematsu, and Endo. "Korematsu is a curiosity, not a precedent on questions of racial discrimination" (p. 239). This it says about the case that first expressed the doctrine of "strict scrutiny" -- "...all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" (Black, 323 U.S., at 2216) -- which was the basis by which the Court declared unconstitutional innumerable racist laws. And consider as well Korematsu's role in the argument for affirmative action (see Justice Brennan's opinion in Bakke, 438 U.S., at 356). While I do not necessarily defend the reasoning in these opinions, the Supreme Court is the highest court in the land, and its judgment must surely be given a measure of deference.

It would also have been more honest of the Commission to compare the U.S. actions with those of other nations faced with somewhat similar problems. Consider that Canada did not release its ethnic Japanese from their camps until 1947 and did not permit them to return to the west coast until 1949. England exercised an internment policy for Germans and Italians that included, for a while, Jews. Judged by the standards of western civilization, America did not grossly misbehave, as the ironic Churchill quotation indicates.

Finally, the social science gibberish of some of the Report's passages should not go unremarked. For example, the Japanese-Americans desire to obtain a good education is interpreted as one of many "scars of wartime relocation" (p. 300). Such grasping at straws -- crude psychologizing -- betrays a desperate cause lacking coherent, rational argument.

Given these criticisms, what would I want my Commission to say? Frankly, what I would want is that it discover the truth about the matter. And regarding that great goal this Commission has proven a most unreliable witness. No good can be done the cause not only of Japanese-Americans but of all Americans by a fatally flawed Report on the evacuation. This is material that bigotry, feeding on half-truths, grows fat on. As an American of Japanese ancestry I can honestly say that I feel more secure in my political well-being with no Report at all -- even given the prevailing ignorance -- than with one as unpersuasive as that of the Commission.

The Commission's Recommendations

Let me now turn to the Commission's Recommendations -- which are extraordinarily bold, not to say audacious. If the historical portion betrayed some traces of moderation -- at least as window dressing to make its extreme arguments seem less problematic -- the Recommendations lack all restraint whatsoever. Most of the media attention has focused on the individual monetary compensation feature, but the other provisos are even more problematic. I will begin my remarks with observations about these.

The Commission calls for an "act of national apology" (Part 2, p. 8). Now, had responsible officials of an earlier generation felt obliged to apologize, the gesture might have had some propriety. But, as all who are familiar with the relocation admit, the vast majority of Americans are ignorant that it took place. How can these people apologize for an action of which they are ignorant? The sincerity of such an apology is most dubious. Indeed, the demand for an apology comes across more as bullying than as a request for an apology. Again, only a knowing subject can apologize, and, even assuming an apology is due, the American public remains ignorant of the evacuation.

Should Japanese-Americans who broke laws relating to relocation be pardoned? Again, it must be recalled that we deal with a matter of Fifth Amendment due process but also one of the scope of the military power in time of war. Lincoln's remarks on this subject are relevant:
If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or invasion, the public safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public safety does not require them -- in other words, that the constitution is not in its application in all respects the same, in cases of rebellion or invasion, involving the public safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. (Letter to Erastus Corning, June 12, 1863)
To be regarded with the greatest trepidation is the Commission's recommendation for an educational foundation that would teach Americans the injustice of the relocation and "this and similar events" (Part 2, p. 9). Of course, such a foundation would be immediately captured and manned by the constituency that created it. Such a foundation would damn America for its past, in the most irresponsible way imaginable. (Of course, this foundation would know no checks on its actions, investigations, or publications.) The "public educational activity" of this foundation would be little more than ideological fustian masquerading as scholarship. To the extent that government should be involved in the subsidization of scholarship at all, it should encourage scholarship in these areas through such institutions as the National Endowment for the Humanities, and not through self-serving, self-aggrandizing bureaucracies as the proposed foundation. Indeed, this recommendation has far more capacity to assail and distort the American democratic tradition than any other part, and thus this part, more than any of the other Recommendations, must be rejected. Congress must not establish such a Commission as part of a "compromise" that would reject individual monetary compensation.

Finally, we come to the question of monetary compensation. Not the least appalling portion of this Recommendation is that the monetary fund from which payments are drawn "should be administered by a Board, the majority of whose members are Americans of Japanese descent..." (p. 10). Again we have the specter of a commission investigating racism promoting racial classifications, a practice which will only further the evil to be corrected. Our politics should be informed, as the first Justice Harlan put it long enough ago, by the "color-blind Constitution" brought about through the Civil War Amendments. Thus, any racial or ethnic categorization in our laws should be viewed with loathing. The demand for a Board composed of members of a certain ethnic group (regardless of whether they were interned or the descendants of internees) reveals the redress drive for what it is -- an instance of grasping for spoils disguised as a plea for basic rights. This is an area into which Americans of whatever ethnic group, especially with those of histories of invidious discrimination, should tread carefully. Going for spoils, the perquisites of office and power, is a time-honored part of our democratic politics. What member of Congress does not promise more for his constituents? But to use the precious language of rights and duties in order to grab a bigger piece of pie undermines the American heritage that makes democratic politics possible, and denigrates those fundamental truths of our political tradition that are our ultimate resource in both normal times and crises. All Americans should take care that such abuses of our political language be identified for what they are.

Of course, this logic applies to the Commission's proposal for financial payments of $20,000 to all who were relocated -- regardless of age, how long they spent in relocation centers, whether they were citizen or non-citizen. But the case against such payments has been made by numerous Japanese-Americans. Consider the following statements:
...I must differ with those who so assiduously, albeit with sincerity, seek individual reimbursement of $25,000 per person, or any sum for individuals. I find it personally insulting as an American that my freedom, my liberty, my dignity can be "bought." And such a paltry sum at that...

But I suggest to you that payment alone, individually or otherwise, will accomplish nothing. We would continue to have abysmal ignorance prevailing among our fellow citizens as to what happened...
This was William Marutani, writing in the July 6 and November 9, 1979 issues of the Pacific Citizen, the weekly newspaper of the Japanese-American Citizens League. I know not what caused Commissioner Marutani to change his mind, but I do know his earlier logic is impeccable. Incidentally, other powerful arguments against monetary redress have appeared in the op-ed page of this newspaper over the past few years. These voices have urged that the educational impact of such a movement would be blunted by the quest for money. And they show as well that the Japanese-American community is deeply split on the propriety of receiving such payments.

Consider some of the likely consequences of such legislation. First, a $20,000 windfall would encourage some segments of the population to overt acts of violence against Japanese-Americans. Many more fellow Americans would be motivated to assail the character of Japanese-Americans, for accepting a good that they had not earned. And even more, perhaps a majority, would regard themselves as being victimized by another whining interest group that sought to "cash in" on its exaggerated miseries. Even assuming that people accepted the guilt of a past generation, why should they allow that the labor of their own present (guiltless) generation pay for their fathers' sins? Why should this obligation be passed on down through generations? Above all, why should scholarships, cultural services, health care, and housing (as the Cranston bill designates) be allotted to this particular group? Would this not intensify any stigmatization that particular group may continue to suffer? If one wished to encourage balkanization of America, with government having the role of emphasizing the differences among its ethnic groups, the Commission's Recommendations and the bills based upon them would be excellent means of promoting this end. Those of us, however, who believe deeply in the notion of a color-blind Constitution would have our reservations.

Commissioner Bernstein described the $20,000 payment as a symbol. "[T]his is sufficiently high to avoid its being considered trivial and yet does not in any way fully compensate those victims" (McNeil-Lehrer Report, June 16, 1983). Why not $20,000,000? Why not a national monument? It would take the skill of a Tom Wolfe to do justice to the temerity of these proposals.3

A disturbing undertone to the Recommendations is that an allegedly injured group in society is made whole again through becoming a claimant -- asserting one's rights in such a way that one receives certain entitlements, including a part of the bureaucracy which deals out money and prestige. Of course, it is never the group as a whole that controls the bureaucratic fiefdoms; it is a faction of that group. But we would once again find affirmed the dubious notion that an American's status and well-being are fundamentally determined by what society owes him: Become a good American by suing someone. In this view, not individual merit but social recognition confers dignity. This is a reflection of a political philosophy quite alien to the American political tradition of recognizing humanness through the capacity to exercise individual excelleces.


Thus, I must conclude with some sadness that it is in the best interest of America as a whole -- especially its Americans of Japanese ancestry -- that though the Commission Report may be an useful summary of literature on the evacuation, it should be rejected as a basis for legislation; its blindness is too readily evident. Moreover, the Commission's Recommendations, while doubtless well-intentioned, are far more liable to encourage racial and ethnic antagonism and bigotry than to diminish those evils. These are not a Report and set of Recommendations that live up to the founding spirit of this nation, which "gives to bigotry no sanction, to persecution no assistance..." (George Washington, Letter to the Touro Synagogue).

The Commission erred primarily because it failed to understand this nation the way its greatest statesman, Abraham Lincoln, comprehended it. Lincoln saw that American political life is based on both the recognition of human equality and the securing of the consent of the governed. And Lincoln took despotic actions in the war that would end slavery. This is no compromise of political principle whatsoever; it is a realization that the ancient virtue of prudence must ever mediate between our two principles of equality and consent. And so Franklin D. Roosevelt mediated between these principles in the war against the world-tyrannies.

Do Japanese-Americans remain second-class citizens because this Commission's Report and Recommendations are rejected? This is hardly the case. The World War II combat records of the all-Japanese-American units, the 442nd Division and the 100th Battalion, have won honor both for themselves and their fellow Japanese-Americans. These units, plus others who fought in the Pacific theater, had distinguished records, because, as a veteran told me recently, "We had something to prove." The willingness to risk one's life for the sake of others, "the last full measure of devotion," is the ultimate political loyalty test. It may not be fair that some Americans should be asked to sacrifice so much, and in the circumstances that faced the Japanese-Americans, their volunteering was a truly noble deed. Therefore, I would like to recommend as a symbol of the nation's gratitude and as a standard for ethnic assimilation, a monument to these Japanese-American units; though segregated by ethnicity, they contributed to a cause opposed to racism. But this moment must be such that it recognizes not only the all-Japanese-American units of World War II, but the all-black units of the past, and the Native American communications specialists -- all second-class citizens who believed in America, and sensed that its ideals would triumph. The injustices they suffered would not necessarily have to be felt by others: Color ought to be politically irrelevant. The only appropriate recognition of ethnicity in and through the laws of this nation, at least for us believers in a color-blind Constitution, is one that seizes on a particular fact about a group and points to a universal truth about human nature. The contributions of these ethnically segregated units are thus to be seen primarily as contributions of American citizens. In one sense becoming American is easy; one merely needs to be born here. But becoming American in the sense of being accepted as American and feeling oneself at ease within America is, as Hunger of Memory author Richard Rodriguez reminds us, a continuous process for all Americans. In the 1940s, most Americans did not appreciate the extent to which the Japanese-Americans had truly become American. Thus it is that then, today, and throughout our history, we Americans are constantly trying to live up to our founding principle, the ideal of equality as understood by Abraham Lincoln:
Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal -- equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. (June 6, 1857)4

1 Born 6/13/47. Currently Resident Fellow and Director, Bicentennial of the Constitution Project, The Claremont Institute for the Study of Statesmanship and Political Philosophy, Claremont, California. Editor, Claremont Review of Books. B.A., M.A., Ph.D. Richard Weaver, Fulbright, and Herbert Lehman Fellow. Published in American Political Science Review and Western Political Quarterly. Delivered numerous papers on political philosophy at political science conferences. Taught political science (emphasis on constitutional law and political philosophy) at St. Martin's College (Olympia, Washington), California State Polytechnic University, Pomona, and the University of California, Irvine. Now preparing an essay, "Ethnicity and American Constitutionalism: From Korematsu to Fullilove." Also preparing an essay on the Commission's Report and Recommendations. His views are his own and not necessarily those of his employer, The Claremont Institute.

I wish to acknowledge the insightful scholarship of Henry Sokolski, who is completing a manuscript on the Japanese American cases.

2 The late John Okada's No-No Boy (1957) is a fine example of the "ethnic novel," precisely because it brings to light more than the story of a particular ethnic group.

3 See Wolfe's "Mau-Mauing the Flak Catchers" in Radical Chic & Mau-Mauing the Flak Catchers (1970).

4 For an elaboration of Lincoln's political philosophy, with vital relevance for not only the Japanese-American situation but the question of American democracy generally, see Harry V. Jaffa, Crisis of the House Divided, 1959, new edition, 1982.

I should elaborate on the proposed monument to veterans of racial and ethnic groups who fought for their country, in many cases giving the "last full measure of devotion," despite the second-class and inferior treatment they received. I will allow those skilled in the plastic arts to determine its appropriate form and size. Crucial is its teaching: That citizenship, with all its rights and privileges, presupposes duties, and above all, the supreme duty of willingness to sacrifice one's life for one's nation. Thus, all Americans could learn better citizenship from such a monument; it would be less a reminder of a blemished past than an object lesson for all. While acknowledging the fact of color, it would be a truly color-blind recognition of citizen duty.

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