Days of Infamy

  To Nancy, Lee, Tyler, and Patton

  Contents

  Cover

  Title Page

  Dedication

  Prologue

  Chapter 1: Free and White

  Chapter 2: White, Black, … and Gold

  Chapter 3: Ah Yup

  Chapter 4: Enter the Japanese

  Chapter 5: Birthright

  Chapter 6: Exclusion

  Chapter 7: The Workers …

  Chapter 8: … and the Boss

  Chapter 9: Tremors

  Chapter 10: A Convenient Target

  Chapter 11: Mr. Schmitz Goes to Washington

  Chapter 12: Here Come the Brides

  Chapter 13: This Land Is (Not) Your Land

  Chapter 14: Fake News

  Chapter 15: Slamming the Golden Door

  Chapter 16: All in the Family

  Chapter 17: The Golden West

  Chapter 18: The Heart of an American

  Chapter 19: What Meets the Eye

  Chapter 20: Turning the Soil

  Chapter 21: Banzai and Baseball

  Chapter 22: Fear and Fiction

  Chapter 23: No Island Paradise

  Chapter 24: Infamy

  Chapter 25: Four Who Refused

  Epilogue: Shame

  Bibliography

  Source Notes

  Photograph and Illustration Credits

  Index

  Acknowledgments

  About the Author

  Also by Lawrence Goldstone

  Copyright

  ON DECEMBER 8, 1941, one day after the Japanese navy launched an attack on American air and naval bases at Pearl Harbor in Oahu, Hawaii, President Franklin Roosevelt addressed a joint session of Congress. He told American lawmakers that December 7, 1941, was “a date which will live in infamy,” and asked that a state of war be declared between the United States and Japan. While his denunciation of an unprovoked attack as the two nations were actively negotiating to resolve their differences was certainly justified, three years later, December 18, 1944, became another date that has lived in infamy, one about which President Roosevelt was silent. The reason for his lack of outrage on this occasion was perhaps because he was directly responsible for what would later be widely seen as an indelible stain on America’s honor.

  On that day, with the defeat of fascism glimmering into sight, the United States Supreme Court, by a 6–3 vote, ruled that the forced relocation of more than 100,000 Americans, two-thirds of whom were United States citizens, to what government officials themselves called “concentration camps,” was fully justified under the United States Constitution. Not one of these Americans had been accused of a crime. They had been torn from their homes, jobs, schools, and communities to be deposited in tawdry, makeshift housing behind barbed wire solely because of their race.

  President Roosevelt had authorized this action on February 19, 1942, with Executive Order 9066, which said effectively that anyone of Japanese heritage, citizen or not, was an “alien,” a potential saboteur or enemy agent, and could thus have any rights guaranteed under the Constitution annulled in the name of national security. And so, the United States joined Fascist Italy and Nazi Germany as nations who forcibly deported citizens without trial simply because of the circumstances of their birth.

  The case in which the Supreme Court upheld the same practice that America had condemned its enemies for, Korematsu v. United States, is now one of the few decisions in Supreme Court history that both liberals and conservatives list among the worst ever. In a blog on the legal website FindLaw, Korematsu was listed as the third worst decision ever, behind only Dred Scott v. Sandford and Buck v. Bell (where a Virginia teenager was sterilized against her will because she had been judged, incorrectly as it turned out, to be “feeble minded”), but ahead of such other travesties as Plessy v. Ferguson and Citizens United v. Federal Election Commission. To make the decision even more damning, the Court’s two great champions of civil liberties, Hugo Black and William O. Douglas, voted with the majority. Black was the author of the opinion.

  But as damning as Korematsu might have been, to tell the story of the stigmatizing and imprisonment of thousands of innocent Americans as an isolated incident, a temporary loss of national purpose, would be to miss the point entirely. In fact, both the Court’s decision and the events that preceded the case were simply the natural extensions of decades of blatant and unapologetic discrimination against men, women, and children whose only offense was to have Asian forebears. And the discrimination against these people did not begin because of acts of terrorism, but rather because they demonstrated a willingness to toil tirelessly for paltry recompense, absorb insult and abuse without complaint, and give up even the most meager luxury for the benefit of their children … all values that Americans claim to respect.

  Poster ordering Japanese Americans to leave their homes and businesses.

  Nor were the justices unaware of the nature of the case before them. White supremacists in the West were as open in their intent to discriminate against Asian Americans as white supremacists in the South were willing to announce their intention to discriminate against African Americans. Law after law was passed to strangle immigration and to prevent those immigrants from Japan and China who were successful in entering the United States from becoming citizens. Further legislation then prevented Asian noncitizens from owning land, entering into real estate or commercial contracts, or enjoying constitutional protections afforded to most who lived within America’s borders. Children of first-generation immigrants born in the United States, granted automatic citizenship by Section 1 of the Fourteenth Amendment, were subject to other forms of discrimination designed to keep them separate from white Americans, measures that the Supreme Court had deemed constitutional in Plessy v. Ferguson in 1896.

  Although all but a few thousand Japanese immigrants and citizens lived on the West Coast, the tensions between them and the white population had exploded into a national issue decades before the attack on Pearl Harbor. In January 1921, for example, a prestigious academic journal, The Annals of the American Academy of Political and Social Science, published in Philadelphia, devoted an entire issue to “Present-Day Immigration with Special Reference to the Japanese.” There were twenty-three articles from such diverse contributors as the openly—and proudly—racist United States senator and former mayor of San Francisco, James D. Phelan, to Baron Shimpei Goto (now Gotō Shinpei), who had been the Japanese minister for foreign affairs. The arguments on both sides were almost identical to those that would appear twenty years later.

  Baron Goto asserted that the Japanese in California “live very plainly and work very industrially and fulfill a useful and, I should say, almost unreplaceable function in the economic life of the state. Their honesty is unimpeachable, so much so that I have often heard it said that banks will advance them money on the conditions which (if proposed by Americans), will be refused. They are, of course, entirely peaceful.” Senator Phelan, on the other hand, in an article titled, “Why California Objects to the Japanese Invasion,” called for Congress to act immediately on the “Japanese problem” and that “we admire their industry and cleverness, but for that very reason, being a masterful people, they are more dangerous.” Phelan went on, “The people of Asia have a destiny of their own. We shall aid them by instruction and example, but we cannot suffer them to overwhelm the civilization which has been established by pioneers and patriots and which we are dutifully bound to preserve.” Then in words that could easily have been uttered in 2019 about other races, Phelan said, “We are willing to receive diplomats, scholars and travelers from Japan on terms of equality, but we do not want her laborers.”

  Another critic, John S. Chambers, the California state controller,
insisted, “Assimilation is impossible,” and compared the Japanese to rodents. “Watch the gopher at work. He starts to bore into a levee, and as he progresses, he is joined by more of his kind; then, in due time, the other side of the embankment is reached, and a little stream of water passes through. As the dirt crumbles, a flow increases and unless promptly checked, the bore soon becomes a wide gap with the water rushing through and overflowing the land. That is the flood that means loss, and perhaps eventual disaster. That is exactly what is happening in the state of California today through the Japanese policy of peaceful penetration.”

  During the next two decades, however, many Japanese people not only assimilated, but also showed every sign of becoming a vital and indispensable part of the economies of western states, which infuriated the anti-Japanese faction all the more. “An official report noted that by 1910, the Japanese produced about half of the entire amount of [Californian] agricultural products marketed. Their position was substantially the same as that of the Chinese except that the sector of agriculture which they occupied had grown to be very much more important than it had been at the time of the Chinese.”

  In the aftermath of Pearl Harbor, white supremacists had their opportunity. They were able to not only claim foresight for insisting the Japanese were a treacherous race, but also to finally persuade the government in Washington to take the sort of action they had been urging for decades. And so, more than 100,000 people were deported, their homes and businesses either seized or vandalized, and in many cases, their lives ruined forever.

  The story of the bigotry, prejudice, and oppression foisted on Americans of Japanese ancestry for almost half a century by individuals, government officials, and justices of the Supreme Court is one that resonates today. “White supremacy,” the banner under which these injustices were perpetrated, not only to those of Asian heritage, but to Black and brown people, and Indigenous Americans as well, has been revived, not simply as an outlook hidden in the shadows, but as one that many are willing, even proud, to proclaim publicly.

  And so, the United States government’s treatment of the Japanese is also a story of today’s America, and the lessons of that terrible period in our history are lessons the nation cannot be allowed to forget. Although to combat bigotry and discrimination is the job of every American, the Supreme Court will once again be the venue where racism is either accepted or rejected in American law.

  THE UNITED STATES CONSTITUTION makes no mention of citizenship. Excluding enslaved people and “Indians not paying taxes”—who were assumed to be not only citizens of their various nations, but also less than whole people—anyone living in the United States when the Constitution was ratified seemed to qualify as a citizen. The only distinction was that to be elected president, a person needed to be born on American soil. (There has been some speculation that this clause was inserted specifically to keep Alexander Hamilton, who was born in Nevis in the West Indies, from the presidency.) Requirements to attain citizenship were also not discussed, but Congress was empowered to “establish a uniform rule of naturalization.”

  Citizenship did not mean voting. In every state, in order to qualify to vote, a person—almost always a man—needed to be twenty-one years old and either own property or pay taxes. (In New Jersey, where a technicality allowed women with property to vote, an amendment to the state constitution soon closed that loophole.) In fact, the language of both the Constitution and its first ten amendments did not explain what would later be termed “privileges and immunities” of citizenship at all. All the rights enumerated were in terms of “people,” which made no distinction between citizens and noncitizens.

  While the First Congress made no effort to clear up this vague concept of citizenship, it did take up how those who did not live in the United States at its founding could become “naturalized” American citizens. As John Lawrence of New York observed in the debates over naturalization in February 1790, “The reason of admitting foreigners to the rights of citizenship among us is the encouragement of emigration, as we have a large tract of country to people.”

  And that “large tract,” mostly in the West, would need a significant influx for both the nation’s economic growth and self-defense. Yet there was also general agreement that the country did not want just anybody. When discussing a residency requirement, James Madison warned, “When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuses; it is no doubt very desirable, that we should hold out as many inducements as possible, for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours … I should be exceeding sorry, sir, that our rule of naturalization excluded a single person of good fame, that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but who, in fact, is a real addition to the wealth or strength of the United States.”

  In the end, Madison’s hesitation worked itself into the final bill. On March 26, 1790, President George Washington signed “an act to establish a uniform Rule of Naturalization” into law. It stipulated:

  That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof … in any one of the states wherein he shall have resided for the term of one year at least … that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the constitution of the United States.

  In addition to limiting naturalization to free whites, although just what would determine race was left unspecified, the use of “he” was not an accident. In practice, few women could become naturalized citizens, except by application with her husband, or sometimes her son. As with most matters, naturalization was left to the states to decide who qualified for United States citizenship under the law.

  Although almost every member of Congress, as well as President Washington, favored the limitation of “whites of good character,” there were dissenting voices. Senator William Maclay of Pennsylvania wrote in his diary, “The truth of the matter is that it is a Vile bill, illiberal. Void of philanthropy and needed mending much. We Pennsylvanians act as if we believed that God made of one blood all families of the Earth.”

  Senator William Maclay.

  Maclay left Congress in disgust after one term, no mending of the 1790 law to be had. In the end, the only part of the legislation that caused widespread controversy was the residency requirement, which was directly related to the understanding that over time it would become easier (for men) to vote, with the property-holding prerequisite likely to eventually disappear. Residency was raised from two years to five in 1795, and then, in 1798, with Thomas Jefferson’s populists threatening to displace John Adams’s more stodgy Federalists, to fourteen years. (It wouldn’t help Adams, who would lose to Jefferson in 1800, not because landless whites were counted for electoral votes, but because three-fifths of the slaves were.) In 1802, with Jefferson in the President’s House—it wasn’t officially called the White House until 1901—the requirement was again put at five years, where it remains today.

  Citizenship did not become a matter for the courts until the 1850s, and then only as an aside. The case began in 1836, when a United States Army major, Lawrence Taliaferro, performed a wedding ceremony. The groom was about forty, and the bride about ten years younger. Both were simply dressed. What made this ceremony unusual, however, was that the groom, Dred Scott, and the bride, Harriet Robinson, were both Black and, depending on whom one asked, either former or current slaves.

  Dred Scott and his wife, Harriet Robinson Scott.

  There was no question that both had been enslaved previously, but their owners had moved from slave states to Wisconsin, in which, according to the Missouri Compromise, slavery was outlawed. The Missouri Compromise was a law passed in 1820 that tried to maintain the balance
between slave states and free states in Congress. Maine would be admitted as a free state, Missouri as a slave state, and, except for Missouri, slavery would be prohibited north of the 36º30’ parallel.

  Northerners insisted that meant any slave traveling from a slave state to a free state would automatically be freed. Southerners disagreed. To them, slaves were property, and it would be the same as saying if a Northerner came south with cattle, the cattle would be freed. Still, Dred and Harriet’s owners must have agreed they were free, since marriages were only recognized between free people. If they were still enslaved, the ceremony would not have taken place.

  The question of the Scotts’ status gained importance when their owner returned to Missouri and hired the Scotts out as slaves for a local farmer. Dred Scott, backed by abolitionist lawyers, sued for his freedom in state court. He lost, as he did later in federal court. After many twists, turns, and long delays, in 1856, the case of Dred Scott v. Sandford finally reached the United States Supreme Court.

  The chief justice in 1856 was Roger Brooke Taney (pronounced TAW-ney), a former slaveholder from Maryland who had been appointed to the high bench by another former slaveholder, President Andrew Jackson. Jackson had chosen Taney, who had been his attorney general, to favor the rights of states over those of the federal government, which included states in which slavery was an institution.

  Roger B. Taney.

  The Supreme Court’s decision was not handed down until March 1857, with Taney writing the opinion for a 7–2 majority. During the time between when the case was argued and the decision, President James Buchanan approached some of the justices, including Taney, insisting that a definitive judgment on the legality of slavery was needed to head off the threat of war.

  Taney’s opinion was as definitive as Buchanan could have hoped for. He ruled not only that slaves could not be United States citizens, but also that “[a] free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” Since Black people—enslaved or free—could not be citizens, they had no standing to sue in federal court.