Hirabayashi and the Invasion Evasion

BY Eric L. Muller

This Article presents archival evidence demonstrating that government lawyers made a crucial misrepresentation to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), the case that 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 a 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. The archival record also demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew that top military officials had denied the risk of invasion in communications to Congress. The Article seeks to understand how Justice Department lawyers came to make such a misrepresentation and demonstrates that the Hirabayashi decision deserves to be fully and resoundingly repudiated.

DOWNLOAD PDF | 88 N.C. L. Rev.1333 (2010)