Will Miller, University of Arkansas, Fayetteville
Old Main 438
Fayetteville, AR 72701
WMILLER@COMP.UARK.EDU
This article is an analysis of the construction of race in the narrative of the Hirabayashi decision. Whereas most analyses of the Hirabayshi case are conducted within the privileged discourse of legal scholarship, which sets strict parameters on the form and method of analysis, in this article the legal findings of the Court are discussed as "text." A critical/reader response method is suggested for the analysis of Hirabayashi as well as other race-based policy texts.
Critical/reader response analysis utilizes literary techniques that incorporate both a critical epistemology and a reader response interpretive approach. Critical epistemology is based on an understanding, common to Habermas, Edelman and others, that social reality is constructed by "interpretive communities." The reader response interpretive technique explores the role text plays in an institution's attempt to legitimize preferred policy options. In addition, this article contributes to the discussion about how race is constructed and reconstructed in the policy process. The critical/reader response approach to analysis represents the convergence of two parallel but distinct sources of thought. First, critical/reader response methodology draws from the critical school represented by Critical Legal Scholarship, Habermas and the Frankfurt School. Critical and interpretative research is especially useful in analyzing cultural bias in the policy process. Of all types of policy research, such research is "probably least familiar and most neglected" (Gordon, Miller, and Rollock, 1990, 18). Critical interpretation involves "the critical use of analytic, synthetic, and synergistic capacities of the human brain as the generative research tool.." (Gordon, Miller, and Rollock, 1990, 18).
The second source that informs critical/reader response methodology has been called "reader response interpretation" in literary criticism, "reception analysis" in media studies or simply "reader effect" analysis in other areas. These approaches concentrate on visual, rhetorical or textual analysis and the effects of each of these mediums on the reader. Both Stanley Fish (1980), in his writing on the authority of the interpretive community, and Edelman (1988), in his works on the symbolic nature of politics, are representative of this approach.
Critical scholarship and reader effect scholarship share the assumption that our understanding of our world is socially constructed. Sonia Livingstone notes this convergence of thought. As part of her description of "reception theory" she writes,
Recently, the critical school has also abandoned the possibility of identifying unitary and correct meaning of texts.... Reception theory argues not just that audiences "do" unexpected and diverse things with texts but, more important for an analysis of content, that texts are structured precisely so as to invite or prevent this. Consequently, there can be no analysis of content independent of a consideration of the reader. Ideal or model readers are built into the texts, as are multiple interpretive paths inviting divergence, for texts comprise indeterminate or incomplete meanings awaiting their readers (Livingstone, 1989, 188).
The researcher needs to immerse themselves in the text. Details of structure, word count, form and the cultural context of the text's authors are integrated into what the researcher comes to understand from the reading and rereading of the text. In the case of race-based policy this leads to such questions as: How is race used in every occurrence within the text? What are the synonyms for race within the text? What is the conceptual framework for the construction of race in the text? How, using these historical concepts, are races defined? Who does what to whom in the text? Who is regarded as authoritative in the text and what is the source of their authority?
Critical/Reader response analysis is an effort to bring together the humanities' emphasis on the laborious interpretive task with the social scientist's understanding of the process of politics and the social construction of meaning. Such work involves the researcher in questions of epistemology, interpretation and policy process. The researcher him/herself becomes the primary instrument for interpretive analysis. This may be facilitated, perhaps oddly enough, with the use of sophisticated text-based data management tools. These tools are not primarily statistical programs, but programs that treat the text itself as the source of data and aid in the interpretive task to move the raw textual data to the level of meaningful information.
Most critical scholars have been persuaded that race is socially constructed. Race is built upon multiple value-based assumptions about genetics, socio-biology, functionalism and even a Platonic philosophical position concerning the ability to know the central nature of who groups of people are. Those who see race as a central and real characteristic of a group Banton describes as "essentialists" (Banton, 1987, 3). Those who have an essentialist orientation tend to feel that they are getting at some central and defining element concerning humanity when they "discover" the characteristics of race. This might be an innocent academic endeavor if it were not for its effect on culture, economics and politics. Stanfield notes this link when he writes that,
...the use of 'empirical data' to explain the causes and consequences of racial differences in income, educational attainment, intelligence, mobility patterns, family structures, and residence perpetuates the myth that race is relevant in defining human differences and therefore confirms the stratified racial order (Stanfield, 1985, p. 18).
Jeffrey Prager (1982, 100) would seem to be in agreement when he writes, "The problem with racial explanation, as I see it, is a profound one because, in the American context, racial ideology has served not to illuminate reality, but to obscure it." Critical and textual research can help to uncover the culturally based and culturally-biased development of the race paradigm in Western thought and can also perhaps de-construct and delegitimate the concept of race itself. Such criticism, however, is not simply an attempt tear down bad science. It is the beginning of work to build up more complex and less oppressive paradigms for inter-group relations. As Stephen Gould (1981, 322) observes, "Scientists do not debunk only to cleanse and purge. They refute other ideas in the light of a different view about the nature of things."
Anything that is written down as text, whether it is the Code of Hammurabi or the menu at the corner bar, becomes an artifact of the culture that has generated it. As an artifact, the text can be analyzed as to its structure, intent and origin. Just as important, as Fish and the "reader response" school of literary criticism will tell us, it can be analyzed for its effect on its various reader communities. Reader response has to do with more than just the character or pre-disposition of the individual. The reader is part of his/her culture. The reader is strongly influenced by interpretive communities that provide the perspectives through which the reader responds to the text. For our purposes, it does not matter whether the text is a research report from a policy analyst or the result of an official policy process (such as a legal finding); it is still text and can be analyzed not only from the perspective of the intent of the writers, but also for its culturally-mediated effect on the reader.
The question, then, as Fish (1980) notes, is, "What does this text do?" This
is, of course, a complicated question. It is complicated by:
Only a limited aspect of the reader's experience can be illuminated in any significant way by any single interpretive endeavor. For this reason, the nature of the text and the reader response must be argued as part of a continuing discussion. Yet in spite of all of these complexities, and despite a limited understanding of the reader's experience, it is essential that there is interpretation and discussion of the persistent use of race in policy legitimation. Though "speech-acts" (in this case the production of legal text) may be interpreted in a variety of ways, and from a variety of perspectives, speech-acts nonetheless have actual policy consequences. Policies continue to be developed which are based on racially-defined speech. Too often the racial ideology legitimating particular policy options has been left unexplored by policy analysts.
The legal community is an important source of definition and legitimacy for the concept of race. Within legal discourse, race-based research is often utilized to produce race-based legal findings. Timothy J. O'Neill (1981) speaks of the legal process as one of metaphor and analogy. In the making of policy the courts define and redefine legal metaphors by comparing them to similar uses of the metaphor in previous court findings and in the constitution. Race in law can be described as a metaphor or a legal "fiction" in law. O'Neil (1981, 631) writes,
..the dangers of law language are obvious: the map is offered as a substitute for the territory, the chemical formula for the taste, the diagram for the dance. These dangers are tolerable only so long as the basic nature of law language is remembered by its users.
It is the risk involved in confusing the model with reality that makes the use of the concept of race so hazardous. O'Neil continues, "The language in which we conceive of legal 'things' is decisive in molding our attitudes and behaviors toward those 'things.'(631)" Thus textual research which explores the use of race must be concerned not simply with the structure, use and origin of race language, but with how such language influences the reader's behavior toward groups thus defined. Increased media coverage of the court has made reader response analysis even more crucial. As one report noted (Aspen Institute 1975, 7), "In a democratic society possessing mass media, there is a need for examination and delineation of the role of metaphors in governmental and business discourse and their role in both reflecting and directing thought."
In legal findings, the metaphor of race is constructed and reconstructed based on the needs of the judicial system and the environment in which it exists. Since race is a concept with no physical or biological meaning, then it can be filled with the cultural meanings that the legal community needs. It is, in this sense, like a social "Rorschach test." The courts provide guides concerning what characteristics to look for in a race and how we are to respond.
Both traditional legal and classical scientific reasoning are children of the Enlightenment. The formalist description of the process of law-making is paralleled in the positivist view of the methodology of scientific research. Both are supposed to be objective. Results of both research and judicial activities are described as "findings." In legal text, findings are presented as "arguments" for or against other court findings or for or against a given policy option. Research, too, engages in a similar sort of "next stepping" process that transforms "past papers into resources or reasons for undertaking this 'next' paper (Gephart 1988, p. 58)." In both legal and research findings, the process is ritualized in a way so as to present the conclusions as if they were somehow "out there" and have been discovered through the application of proper technique and an objective perspective. With regard to our discussion of race, findings in both the legal and research arenas are given their legitimacy in the general culture by the formalist/positivist claim to a lack of personal subjective interest. From the reader's perspective, if race is found in the text of the law and found in the text of the policy research community, then races certainly must exist and must explain an important part of who people are.
This treatment of the text of Hirabayashi, which considers the entire finding as a single literary unit, differs markedly from traditional legal scholarship. It also differs in significant ways from Critical Legal Scholarship as it is usually practiced. The theoretical reasons for such a departure might now be profitably discussed. Traditional legal methodologies and the majority of Critical Legal scholarship fit within what Munger and Seron describe as "liberal legal scholarship." Concerning liberal legal scholarship, they write (1974, P. 273), "The function of liberal legal scholarship ultimately is to legitimate a system for authority in capitalist society. Hence, liberal legal scholarship is not self-critical, or 'reflexive' (Gouldner, 1970) because the fundamental function of legal scholarship cannot be questioned within liberal legal ideology."
To move beyond traditional legal ideology, Munger and Seron (1974, P. 276) argue, is to move towards "...the study of the formation and transformation of relations between and within social groups." Such critical methodology is marked by an avoidance of an "exegesis" of the text which often treats the text as a sort of holy cannon of law. In this view, only legal scholars using normative legal interpretation techniques may know the real meaning of the text. Much as Stanley Fish (1980) advocates the normalization of literary text, Munger and Seron urge the normalization or de-sacralize legal text. This is the approach being used here to understand the Hirabayashi decision. Considered as one piece, the finding constitutes an institution's written communication to those whom the institution wishes to persuade. The Court wants its publics to be reassured of both the institutional legitimacy of the process and the legitimacy of the policy the Court is sanctioning. In unpacking the legitimization techniques, critical/reader response methodology assumes a more political or "realistic" conception of legal processes.
The starting point for the present analysis is the text of the Supreme Court finding in the case of Hirabayashi v. United States. The case was initially heard within months of the bombing of Pearl Harbor. It was decided in 1943. A text-critical analysis highlights the U.S. Supreme Court's construction of race and possible reader responses to the text. Finally, there will be a brief look at how race was constructed, reconstructed and utilized in other decisions of the Supreme Court that might have informed the Hirabayashi Court or which used Hirabayashi as precedent.
There are two basic legal questions that the Hirabayashi case brought to the Court. First, does the government have the constitutional right to delegate authority to a military officer who will use such power to declare curfews and otherwise effect civilian populations? This question does not directly relate to our present discussion and will not be considered. The second question is whether that same government can take actions that disproportionately effect a single group or class that is defined by ancestry or "race." Again, the strictly legal question is not the subject of this analysis. The question does, however, force the Court to define who it is that the government will be acting upon. In essence, a primary question for this study is, "Who is it that is being given 'special treatment' and how are these people to be identified?" The data to at least partially answer this question might be gathered from locating, within the text, all of the places in which the group is defined or named and by organizing these labels by number and location within the argument.
Finding and recording of group labels within the text was the first step in exploring the construction of race. The labels and categories become data for interpretive analysis. Such exploration should be as close to Geertz's "thick interpretation" as the data will allow. Thick interpretation should happen prior to the development of conclusions or an attempt to impose an organization on the text. The researcher immerses him/herself in the data and allows the text to speak for itself as much as is possible. Geertz's methodology is "interpretive" and is appropriate for the present task (Gregory 1983). This process moves beyond word counts. The analysis must consider the context, the location within the larger text, the associations between words, who "spoke" the words and who acted or was acted upon.
A first step then, was a slow and careful reading of the entire text. During this reading, the questions that were constantly asked of the reading were, "How are the Japanese defined in this text? What types of categories were used? What does an historical understanding of race tell the reader about what meaning words or categories may have?"
Following this careful reading, a complete electronic text of the Hirabayashi finding was loaded into a text-based data base. Text-based data bases are designed to be used to search for words and phrases, to count occurrences of such units and to organize the text in a non-linear hypertext fashion. The text-based data base was used to search for and to locate words or phrases that were noted from the preliminary reading and which might be used to label Japanese-Americans in Hirabayashi v. United States. Almost one hundred and ninety such instances of group labeling were identified. These occurrences ranged from the word "race" to the exploration of how "they" was used by the text's authors.
The selection of which words are considered labels is a matter of informed interpretive judgment. Another reader could easily make a case for excluding many words that were chosen or including other words or phrases that were not chosen. For instance, this study did not count "persons" as a grouping word. The use of "persons" in the text may be relevant, but it did not appear to this reader to be significantly relevant for the present discussions. This illustrates the need that the interpretative critique be part of a process of continuing dialogue.
Once words or phrases were identified in the text-based data base they were added to a more traditional quantitative data base for ease of data entry. Each incidence of labeling was coded as to location in the text, location in the structure of the judicial finding, conceptual models into which the textual labels seemed to best fit and other possible identifying characteristics. Location was determined by sequentially numbering the text into paragraphs. The more traditional breaks and headings of the text, added after the original authorship, were not used. This would have added yet another level of interpretation which confounds the primary authors' intent with later organizational schemes. After all of the labels were gathered, they were printed out and groupings were attempted. The words or phrases were categorized as belonging to racial, nationality, population, ancestry and other categories.
As the labels or words that constituted the data were grouped into these categories some new categories emerged when the text did not fit the original categories. After first categorizing some words in one way, later readings of similar words would send the interpreter back to recategorize earlier efforts in order to match what seemed to be emerging patterns. The interpretive task calls us to remember that the ambiguities of meaning are part of the text and to categorize too firmly is to rewrite the text with a unified conceptual framework it very well may not have had. This ambiguity will become most apparent in the discussion of the word "race" in the Hirabayashi text.
A summary of the Hirabayashi text may be useful before examining the text and the issues that the text's use of race raises. Using the language of the text as much as possible, a summary reads as follows:
An appellant of Japanese ancestry was convicted of violating a Proclamation of the military governing authorities. There are two constitutional questions that this case raises. First, is the military exercising powers that lay outside of its proper jurisdiction? More precisely, can civilian elected officials delegate authority to the military who can then exercise this authority over civilian populations? Is such delegation an unconstitutional delegation of powers? Secondly, since this military power is exercised in such a way that it specifically affects people of Japanese ancestry, is such action unconstitutionally discriminatory? On the first point, "Like every military control of the population of a dangerous zone in war time, it necessarily involves some infringement of individual liberty, just as does the policy establishment of fire lines during a fire.... And "...the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. (Paragraph 45)" Thus the Court found that the delegation of power to the military was constitutional. On the second point, the Court found "facts and circumstances with respect to the American citizens of Japanese ancestry residing on the Pacific Coast which support the judgment of the warwaging branches of the Government that some restrictive measure was urgent. (Paragraph 46)" These exceptional circumstances constituted a "narrow ground" (paragraph 57) on which the Court found discrimination was necessary.
If policy makers wish to convince others that a particular classification or grouping of persons is relevant to policy-making, a preliminary step is to set out decision-making rules for the grouping so that policy implementers may discriminate in the desired manner. Certain questions must be answered. What are the boundaries of the groupings? How are we to know who is in and who is out of a group? What concepts supply the decision rules that make sense of the categories? The policy text must tell those who will enforce policy who is in which group, why they are in or out, and what relevance their group status has to policy. Further, the categories, classes or groups must be legitimated and integrated with other aspects of the dominant ideology. To begin the research analysis it is useful to examine the words "class" and "group" and their derivatives as used in the text.
The word "class" and its derivatives are used a total of ten times in the Hirabayashi text. First, the military Proclamation that ordered a curfew on Japanese refers to "classes of persons" (paragraph 15 and 16). Paragraph 46, referring to legal documents outside of the finding's text, speaks of "legislative classification or discrimination based on race alone" which has been held to be a denial of equal protection. Paragraph 63 perhaps shows the relationship between class and group. The paragraph concerns the wish of Hirabayashi to be placed in a different class. As an "individual member of a group" (Japanese Ancestry) he wishes to be "reclassified." There is no doubt that if one uses the text's group definition of Japanese ancestry, Hirabayashi could not be re-grouped as any other ancestry. What Hirabayashi hoped was that the question of his loyalty as a U.S. citizen would be the primary focus. He could then be re-classified as "loyal citizen" and be safely allowed to remain on the coast. His group status would remain "Japanese ancestry," but his newly accepted class would be "loyal citizen."
This understanding of group and class in the text seems reasonable for most of the other uses in the text. Where the text speaks in its own voice, movement is allowed in and out of class while group is more often fixed. Paragraph 70 is either an exception or perhaps more correctly adds complexity to the use of class and group. Justice Murphy bemoans the close resemblance of the treatment of the Japanese and the treatment of the Jews in Europe. He writes, "In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purposes of a critical and perilous hour." Further, he writes, "We have consistently held that attempts to apply regulatory action to particular groups solely on the basis of racial distinction or classification is not in accordance with due process of law." In spite of precedence, Murphy believed the times made acceptable what would not be permitted on more secure occasions. He later continues, "It is also true that even the guaranty of equal protection of the laws allows a measure of reasonable classification." Murphy struggled with the conflict between an aversion of permanent classes and the exigencies of war. He wrote, "Modern war does not always wait for the observance of procedural requirements that are considered essential and appropriate under normal conditions." (paragraph 72) Murphy's words might indicate that a "group" could be "reclassified" with a "procedural" technique, but that this (the early days of the war) is not time to use such a potentially risky procedure. Group will determine class until a safer time in which to sort it all out.
This class/group distinction is not always apparent. If one interprets Murphy's use of "racial distinction or classification" in another portion of the Hirabayashi text to mean that a racial grouping may actually be a class, then the group/class distinction and relationship does not hold. Race, which the text seems to understands as fixed characteristic, can not be a class if class allows movement between various classes. However, given the context of the rest of the document, a more accurate understanding of this text may be that group, which is defined by race, may become the basis for the creation of a class that is defined by those who are of suspicious loyalty. Such an understanding is consistent with Murphy's justification.
If a group is a relatively fixed phenomenon, how is membership in this group to be defined? Who is in and who is out? What are the implications of membership? Since the larger question being addressed here concerns the use of race in policy-making one might now logically look for the use of the word "race" and its derivatives in the text in order to examine how groups are constituted. It is striking that the word "race" is so infrequently a part of the text. Since the listings are so few and so important to our discussion, they must be extensively quoted and described with important contextual information. The instances are listed in order of their appearance.
1.) In paragraph 35 the Court is arguing that there are important differences between Japanese and other groups in this country. The Court wants to convince the reader that these differences make special treatment of the Japanese reasonable. Paragraph 35 is actually a footnote. In this case the textual/rhetorical technique of footnoting is used to support the assertion in the body of the text. The flow of the text is not interrupted, but readers may look to the footnote if the reader wants data to support the assertion. First, the assertion reads,
There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population.[FN4] (paragraph 34)
The supporting footnote reads,
FN4 Federal legislation has denied to the Japanese citizenship by naturalization (R.S. s 2169; 8 U.S.C. s 703, 8 U.S.C.A. s 703; see Ozawa v. United States, 260 U.S. 178, 43 S.Ct. 65, 67 L.Ed. 199), and the Immigration Act of 1924 excluded them from admission into the United States. 43 Stat. 161, 8 U.S.C. s 213, 8 U.S.C.A. s 213. State legislation has denied to alien Japanese the privilege of owning land. 1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp. Laws Ann. (1940), s 102; 11 Washington Rev.Stat.Ann. (Remington, 1933), ss 10581, 10582. It has also sought to prohibit intermarriage of persons of Japanese race with Caucasians. Montana Rev.Codes 1935, s 5702. Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this character have not been available. Mears, Resident Orientals on the American Pacific Coast (1927), pp. 188, 198-209, 402, 403; H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 101-138. (paragraph 35)
This first use of "race" is in the discussion of reasons why the Court can allege that Japanese-Americans might not consider themselves a full part of the larger society. The Court notes that, among other laws that have kept the Japanese from becoming integrated into society, state laws have prohibited intermarriage between "persons of the Japanese race" and "Caucasians." The discussion of the state prohibition of intermarriage necessitates the Court's use of the word race in the body f the text and anchors the race concept in biology. The Supreme Court does not indicate if it agrees or disagrees with this and the other laws by which the state has grouped citizens and discriminated against them. The Court simply notes that such laws exist and might be a reason why Japanese Americans would feel alienated. These laws and practices are presented in a neutral manner as "conditions" that explain possible disloyalty and which legitimate the military's decision, with the Court's approval, to discriminate against Japanese Americans by continuing a policy of selective restrictions. White (and the anthropological term "Caucasian") is the culture into which the Japanese-Americans have not assimilated. White and Caucasian are the race labels that are held in opposition to what is referred to as the "Japanese race" within the text.
2.) Paragraph 46 contains the second mention of race in the text. As in the section above, rather than being comfortable with the use of race in this text, the Court only uses race when some outside source pushes the Court to refer directly to race. In paragraph 46 the Court is pushed in that direction because the "appellant insists" on framing the discussion as discrimination. The text reads,
But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337, 338, 63 S.Ct. 297, 301, 87 L.Ed. ---, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 58 L.Ed. 1288. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. 'We must never forget, that it is a constitution we are expounding', 'a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs'. McCulloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579. The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. Cf. State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115, and cases cited. (paragraph 45)
By refusing to see the Hirabayashi case as a question of due process, the Court avoids a fifth amendment claim. Still, the Court is not unsympathetic to the charge of bias in governmental policy. Deep in the American tradition, the Court argues, is a "doctrine of equality." Americans, the Court observes, find racial discrimination "odious." In this particular instance, however, a "doctrine of equality" seems more flexible than constitutional mandates. The Court writes that sometimes racial distinctions are "relevant" and can be the basis for government action. The inner struggle within the Court, which is made explicit in this text, is worth some discussion. It will grow more divisive as the war continues and, some months later in the Korematsu case, will divide the Court.
There are two ideologies in conflict here. One is the ideology of race. The other the Court calls the "doctrine of equality" but may be also be called an ideology of equality. The Court, to maintain its legitimacy, wants to be viewed as neutral, objective and unprejudiced. This is difficult to do when the Court is legitimating a policy that is biased, subjective and prejudiced. Richard F. Wolfson, writing in a 1944 article the Kentucky Law Review, put the matter clearly. In the period after the Hirabayashi decision and before the Korematsu decision he wrote,
If the Supreme Court sustains the Japanese evacuation without introducing some doctrinal explanation that is a new myth, then the legend that republican government does not permit public discriminations based upon race or nationality will already twice have been found untrue and therefore weakened.
3.) Justice Douglas, in a footnote which elaborates on both the nearness of defense targets to ethnic Japanese and the "danger" of their taking action against these targets, quotes Judge Fee as follows, "The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent, presented a problem requiring for solution ability and devotion of the highest order." (paragraph 59) This is a fascinating footnote. "Alien" here does not refer to nationality, but might have synonyms in the words "strange," "different," "foreign" or even "hostile." Fee does not speak of "alien nationalities," but of an "alien race." German nationals may be alien nationals, but they are not an alien race. Therefore German-Americans do not have to be relocated. It is the conception of Japanese Americans as another and alien kind of biological and cultural being which permits their separate definition and finally permits a policy designed just for them.
4.) Justice Douglas, in what may be described as an "apologia," writes,
It is true that we might now say that there was ample time to handle the problem on the individual rather than the group basis. But military decisions must be made without the benefit of hindsight. The orders must be judged as of the date when the decision to issue them was made. To say that the military in such cases should take the time to weed out the loyal from the others would be to assume that the nation could afford to have them take the time to do it. But as the opinion of the Court makes clear, speed and dispatch may be of the essence. Certainly we cannot say that those charged with the defense of the nation should have procrastinated until investigations and hearings were completed. At that time further delay might indeed have seemed to be wholly incompatible with military responsibilities. Since we cannot override the military judgment which lay behind these orders, it seems to me necessary to concede that the army had the power to deal temporarily with these people on a group basis. Petitioner therefore was not justified in disobeying the orders.(paragraph 61)
But I think it important to emphasize that we are dealing here with a problem of loyalty not assimilation. Loyalty is a matter of mind and of heart not of race. That indeed is the history of America. Moreover, guilt is personal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another.(paragraph 62)
Douglas wants to make clear that a group's decision not to assimilate into the dominant culture should not result in the punishment of the group. The ideology of equality, Douglas seems to be saying, allows any group to continue their own ethnic or cultural lives with no penalty. Also under the parameters of the ideology of equality, Douglas states that race does not determine national loyalty. Loyalty then, is not a group characteristic. The state of an individual's heart and mind determine loyalty. In this particular case, however, race-based policies have led to lack of assimilation. Lack of assimilation creates suspicion of a condition (disloyalty) that does merit a government's punitive action. The logic of this argument protects the ideology of equality from the threat to it by racial ideology. The Court is arguing that race is really not the issue. Loyalty is the issue and race is simply a quick way of organizing the search for those who are disloyal. This is much like police today who may stop a black man in a white neighborhood because he "fits the profile" of a "suspect." The government in 1942 detained the Japanese because they "fit the profile" of a possible saboteur. In both instances the government would deny prejudice and claim that objective statistics support their policy.
The government did not detain the Japanese because of their race, it is argued, but because of the increased likelihood that Japanese may be disloyal. Today they do not detain blacks in white neighborhoods because of their race, but because of the increased likelihood that blacks in a white neighborhood fit the "profile" of those who are most likely to be engaged in criminal activity. Both practices are seen as reasonable and practical expediencies for protecting "us" from disloyalty or unlawfulness. The prejudice of the ideology of race is denied and the objectivity of the ideology of equality is affirmed.
5.) In the section that is titled "Murphy concurring" the text is again concerned with both the problems of a race-based policy and the necessity of just such a policy. After affirming the necessity of the curfew policy and the good faith in which it was implemented, Murphy observes that,
It does not follow, however, that the broad guarantees of the Bill of Rights and other provisions of the Constitution protecting essential liberties are suspended by the mere existence of a state of war. It has been frequently stated and recognized by this Court that the war power, like the other great substantive powers of government, is subject to the limitations of the Constitution. See Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. We give great deference to the judgment of the Congress and of the military authorities as to what is necessary in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. It would not be supposed, for instance, that public elections could be suspended or that the prerogatives of the courts could be set aside, or that persons not charged with offenses against the law of war (see Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. ---) could be deprived of due process of law and the benefits of trial by jury, in the absence of a valid declaration of martial law. Cf. Ex parte Milligan, supra. Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. We cannot close our eyes to the fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of anguish because of inequality of treatment for different groups. There was one law for one and a different law for another. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural reasons. (paragraph 69)
Only several paragraphs earlier in his writing, as quoted here previously, Murphy had listed reasons why the Japanese were not assimilated and race-based policy was necessary. A group that cannot assimilate and continues attachment to the "land of their forefathers" is to be seen as a failure of the great American experiment. Though he views this case as a justified and necessary use of racial discrimination, he also sees it as a challenge to the ideology of equality that he just described.
In its use of the multiple voices of the justices, the Court can both affirm a race-based policy and, at the same time, preserve a viable space for the ideology of equality. Murphy's "apologia" communicates the Courts clear concern for what legal scholar Adelaide Villmoare (1982) describes as "the legitimacy of the liberal state." Villmoare writes that "the court system has a unique central role in maintaining symbolically and concretely the principles of constitutionalism." The constitutional symbols of individual rights and the impartiality of the state are threatened by Hirabayashi's treatment and Murphy does not want to lose sight of the Court's role as the symbolic nexus for the preservation of fair treatment. Mentioning race several times, he publicly agonizes over this in the previously quoted citation concerning classes and groups. As a footnote in support of his contention that race-based policy will remain suspect in spite of the Hirabayashi decision, he wrote,
For instance, if persons of an accused's race were systematically excluded from a jury in a federal court, any conviction undoubtedly would be considered a violation of the requirement of due process of law, even though the ground commonly stated for setting aside convictions so obtained in state courts is denial of equal protection of the laws.(paragraph 71)
In the texts final use of race, Murphy further qualifies the extent of the race-based policy he is approving. In support of his understanding that this is a temporary and regrettable necessity, he says,
Nor do I mean to intimate that citizens of a particular racial group whose freedom may be curtailed within an area threatened with attack should be generally prevented from leaving the area and going at large in other areas that are not in danger of attack and where special precautions are not needed.(Paragraph 73)
These instances constitute every use of the word "race" and its derivatives in the finding. As will be seen, this infrequent use of "race" does not imply that the rest of the text of the finding has nothing to say about defining a racial concept or legitimating a race-based policy. The infrequent use of "race" is, though a negative finding of sorts, perhaps one of the most instructive bits of evidence concerning the way the word "race" is used. While forced to use race to class the Japanese in this country, the Court wants to avoid the use of a word that might link the government with racist policy.
A primary function of a text, especially a legal one, is to set up relationships between either individuals or what the text defines as groups or classes. In Hirabayashi "Race as National Origin" is combined with race as defined by physical anthropology in order to separate the Japanese from the Germans and Italians. In the Court's construction of race, one has to be both a member of a group who descended from the people of Japan and part of a group defined as Asian or Mongolian to be a definable race. There are also elements of cultural anthropology in the idea of the tenacity of the Japanese to maintain their culture. In addition, there is a feeling that race for the Japanese has an element of race as spiritual bond. Such a blending of conceptual frameworks does not represent sloppiness on the part of the Court. Rather it is an excellent example of the blending of what might be described as "academic" divisions with folk ideology in order to serve the purpose of the policy legitimation. That there is a difference between whites (including Germans and Italians) and the perceived Japanese "race" is both an assumption and an argument of the finding. The precise nature of this difference is much more ambiguous.
The concept of race in the text is an amalgam of formal conceptual frameworks and common sense understandings. Ancestry, especially when grouped with the associated labels of parentage and descent, is the most common label used in the finding. This appears to be the preferred label that authors wish to present to the readers. Hirabayashi, the defendant in the case, is originally introduced as an "American citizen of Japanese ancestry" in the first sentence of the body of the finding. The use of "Japanese ancestry" in the text includes as its referents both "citizens and alien Japanese alike" (paragraph 24). In other words, all Japanese in this country are "of Japanese ancestry." No other group is identified by the word "ancestry." Germans and Italians, again, are only identified as German and Italian aliens (alien nationals). Each time the text compares the Japanese to other groups using ancestry, the text simply identifies the non-Japanese as "other" or "different." The reader of the text becomes very aware that the Japanese are different from all others and that the difference is one of ancestry.
This conclusion is further supported by looking again at a portion of paragraph 70 of the finding. Note the equation of concepts of race and ancestry.
Under the curfew order here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purposes of a critical and perilous hour--to sanction discrimination between groups of United States citizens on the basis of ancestry.(paragraph 70)
To put the constructed racial definition into a simple sentence one could say that, for the Japanese as well as Jews, "race" is something that is clearly biologically inherited from one's ancestors. Indeed, the "melancholy resemblance" noted above is more evident than the text can admit. That the Jews are not a race, but a cultural and religious group, is not self-evident to the Court. Both the German government and the Court define race for their own prejudicial purposes. Certainly the consequences were not the same, but the use of a legally defined racial grouping for policy justification is common to both.
Are there other hints in the text as to the relationship of the concept of ancestry to that of race? In the footnote by Douglas identifying the "conditions" that have kept the Japanese separate, the text reads, "It [state legislation] has also sought to prohibit intermarriage of persons of Japanese race with Caucasians. Montana Rev. Codes 1935, s 5702. Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent.." The latter "condition" of professional exclusion is brought to the attention of the Court in a book they cite as Mears' "Resident Orientals on the American Pacific Coast (1927). The casual reader who is not focusing on conceptual frameworks hardly notices that the authors move from race to descent to the anthropological classification of Orientals just within these two or three sentences. It is almost as if the categories are synonymous.
Race is a harsh term with political and emotional baggage that the Court does not wish to carry. A nicer and more polite term is ancestry. Subjectively, ancestry almost has a warm and endearing feeling. Race, on the other hand, seems cold, hard, animalistic and almost hostile. Thus the conceptual ambiguity in the use of race and ancestry may not be an accident or the result of sloppy logic. The ambiguity of definition and logic reflects the complexity of the message that the authors wish to convey and the nature of the multi-faceted social situation in which they live and which they seek to address.
Three general statements have thus far been made about ancestry. First, ancestry is the term most used for the grouping of Japanese in America. Secondly, the ancestry category used in the text has only two sub-groupings. These are "the Japanese" and the "others." Thirdly, though having a different subjective flavor, there are indications that ancestry is a term that can be roughly equated with the word "race." Ancestry would seem to be the preferred term and race primarily makes its entrance in the latter portions of the document in disclaimers as to the extraordinary context that forces the Court to affirm a race-based policy.
The Japanese are five times identified as being born of Japanese parents or being of Japanese parentage. It does not matter whether they are first, second or third generation in America. Hirabayashi argued that "he was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there."(paragraph 11) There was no evidence presented or considered that would have impugned his loyalty. The overwhelming reason to suspect him was simply that he was "born of Japanese parents" and therefore was a member of an "alien race" and could not be effectively evaluated as to loyalty.
Supportive of the racial understanding of "alien" suggested earlier is the difference in the relationship between the government and the Japanese Americans and the relationship the text sets up between the government and those of Italian or German ethnicity. The authors do not refer to German or Italian nationals as "races" anywhere within the text. Never are these groups conceived by the Court as parts of an "alien race." Though there are many mentions of Japanese-American citizens in the text, Italian or German American citizens are not mentioned anywhere in the finding. Though the German invasion of several European countries is mentioned (paragraph 31), only Italian aliens (not citizens) and German aliens (not citizens) are moved from the coast (paragraph 19). German or Italian ethnic Americans are allowed to stay in their homes on both the East and West coasts. In the European case it is not race that defines the policy actions, but nationality and perceived national loyalty. Said another way, the text moves the reader to see Italian and German aliens as of different national origin, but of the same "white" race as is now perceived to be indigenous to this country. At the same time the text defines those of Japanese ethnicity, no matter what their nationality, as an "alien race." Some confirmation of this is to be found in a practice of the government contemporary to this decision. It was common to allow even Italians and Germans who were citizens of Italy and Germany (aliens as to their nationality) to return to their residences on the coast while the Japanese (citizen and non-citizen) were interred inland.
Why is race so important here and how are we (the others) to view the 'Japanese race'? Race is important because the argument must build on the assumption that there is something about inheriting racial characteristics that make the discrimination against all Japanese not only possible, but reasonable. The text repeatedly blurs the distinctions between Japanese nationals in Japan, Japanese aliens in the U.S. and Japanese-American citizens. At a time when such distinctions remain clear for Germans and Italians, because the Japanese are constructed as another race their race group membership overrides all other classes or status.
While establishing distinctions, the Court also established relationships. The question now becomes, "What verbs, clauses, phrases or actions show how each group appears to the other?" Specifically, in this text a more precise question is, "Why is race so important here and how are we (the others) to view the Japanese race?" The answer to these questions will further construct the document's view of race and race relations. Words describing the relationship in the text include: convicted, suspected, disseminated.. propaganda, attacked, sank, occupied, gained.. superiority, threatened, grave concern, excluded, held dual citizenship, restricted, disloyal, danger of espionage and sabotage and menace. Normally the effect of these words on the reader would be very subtle. They are dispersed among the whole text and have a cumulative effect on the reader.
..an American Citizen of Japanese Ancestry.. was convicted.. of violating the act of Congress.. (paragraph 8).
..Japanese American.. was.. convicted.. (paragraph 8)
De Witt.. suspected widespread fifth-column activity.. among Japanese.. (paragraph 24)
Japan.. deemed dual citizenship applicable.. to American-born Japanese.. (paragraph 24)
Persons in sympathy with the Japanese government.. found to be effective in the surprise attack..on Pearl Harbor..(paragraph 31)
our inhabitants [Japanese] attachments.. was.. of grave concern (paragraph 31)
they [Japanese Americans'].. were concentrated near.. three of the large cities..(paragraph 31)
their [Japanese Americans] economic conditions.. intensified.. solidarity.. (paragraph 34.2)
economic and political conditions.. prevented.. their [Japanese in America) assimilation.. (paragraph 34)
Children of Japanese parents.. are sent.. to Japanese language school.. (paragraph 34)
American-born children of Japanese parents.. have been sent.. to Japan.. (paragraph 34)
[conditions meant that].. have been unable to secure employment except with others of that descent.. Japanese (paragraph 35)
military commander.. attribute special significance to dual citizenship.. persons of Japanese descent.. (paragraph 38)
large numbers of resident alien Japanese.. occupy.. positions of influence.. (paragraph 40)
influential Japanese residents with Japanese Consulates.. deemed ready means for the dissemination of.. propaganda (paragraph 41)
propaganda.. for the maintenance of the influence of the Japanese Government with.. Japanese population in this country, (paragraph 41)
there has been little social intercourse.. between them (Japanese in America).. and the white population (paragraph 43)
restrictions.. have been sources of irritations.. increased isolation.. to persons of Japanese extraction..(paragraph 43)
restrictions.. tended to increase.. their attachments to Japan and its institutions.. (paragraph 43)
Congress and the Executive.. could reasonably have concluded.. their continued attachment to Japan and Japanese institutions..(paragraph 44)
judgement military authorities and of Congress.. there are disloyal members.. of that population.. (paragraph 44)
war-making branches.. could not readily (isolate).. such persons (disloyal members of that population).. (paragraph 44)
danger of espionage and sabotage.. calls upon the military.. loyalty of populations in the danger zones.. (paragraph 46)
facts and circumstances.. indicate.. a group of one national extraction may menace.. safety.. (paragraph 46)
facts and circumstances.. support restrictive measure.. (pertaining to) American citizens of Japanese ancestry..(paragraph 47)
We cannot say that these facts and circumstances.. afford no ground.. for differentiating citizens of Japanese ancestry.. (paragraph 47)
threatened attack by Japan.. set.. these citizens apart.. (paragraph 47)
residents having ethnic affiliations.. may be.. a greater source of danger..(paragraph 48)
presence of many thousands of aliens and citizens of Japanese ancestry.. aroused special concern.. in those charged with the defense of the country..(paragraph 58)
They.. believed.. among aliens.. citizens of Japanese ancestry.. those who would give aid.. act as fifth column.. to the Japanese invader.. (paragraph 58)
alien race.. citizens.. disloyal with opportunities of sabotage and espionage..(paragraph 59)
military arm.. confronted with enemy attack.. made an allowable judgement..(paragraph 72)
The form here resembles a liturgical phenomenon that has been identified by scholars of both ancient texts and contemporary treaties. In one ancient example it is a central part of a genre called "suzerainty treaties." The historical recitation of the wrongs against the god or monarch is a precursor to the laying out of new conditions for the relationship. All of the quotations are to some extent this litany of wrongs or intended wrongs.
The subjective feelings conveyed about the Japanese is that they are "unknowable" by white minds. They are clannish and devious. They have been restricted from marriage to whites, slowed in their immigration to this country and restricted in property rights and employment.. perhaps with good reason. They may be citizens, but first and foremost they are Japanese.. part of an alien race.
Race has been constructed. The concepts out of which it has been built are biological (inheritance), national (loyalty and the "normal attachment of certain groups to the land of their forefathers"), anthropological, circumstantial and "common sense." The hostile relation between the "races" has been established. The classification of the Japanese for special treatment must now be made to seem not only right but "reasonable" (paragraph 70). There are two elements in the claim to "reason" within text of the finding. The first element of the claim is the assertion that the "facts and circumstances" give validity and legitimacy to the need to discriminate. In the discussion of the government's ability to issue a discriminative order the Court says, "For reasons presently to be stated, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order." (paragraph 25) The decision to affirm such governmental power is made to seem external to the text and the Court. The authors are only recognizing what the constitution allows. After affirming this governmental legitimacy to make such a decision, the text turns to the specific decision concerning the Japanese. Now, rather than the constitution, it is social facts that legitimate the present decision. The text reads,
Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions.... We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. (paragraph 44)
It is "data" which produces conclusions and "grounds" which lead to "measures." Again, in paragraph 46, it is the "recognition of facts and circumstances that indicate that a group of one national extraction may menace that safety more than others" even though, "in other and in most circumstances racial distinctions are irrelevant." (paragraph 46) Or again in paragraph 48, "In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made." The text argues that here and in this case, race discrimination is reasonably based on the facts and not a subjective nor malicious act, even if with others in the present time (as noted elsewhere in the text.. the Germans and the Jews) is irrational and based on prejudice.
The second claim to reason is based on the "reasonableness" of the decision-makers. The data is purportedly used by "reasonably prudent men" who had "ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation." (Paragraph 27) Such men acted on the basis of legislation that was made by other prudent decision makers who acted, "in the light of all the relevant circumstances preceding and attending their promulgation." (paragraph 48) Certainly, as the text does argue, such measures are regrettable. In the last paragraphs, as part of what is almost an apology for the racial nature of the decision, the text admits that "few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men." (paragraph 72) Even this admission conveys that the authors of this text are "reasonable men" who have the common good in their hearts. Such an admission does not weaken, but strengthens the seeming rationality of the text. The reader must feel that there are those on the Court who are advocates of the ideology of equality. Normally they would support the rights of all people. It is only in this particular crisis situation that these wise leaders know that the ideology of equality must be compromised.
In the midst of World War II the Japanese are found to be a race by common definition. They are, to use the Hirabayashi v. U.S. text, an "alien race" which is difficult or impossible to assimilate. The Supreme Court and the military become symbols of a Constitutional power that will protect and defend "us" against the "others" and the Court and the military are enhanced in their stature in almost direct proportion to the perceived threat of the Japanese. Frank M. Sorrentino, in his discussion of "ideological warfare" writes of the FBI and its "path to power," but he could as well be describing the military, the Court and the American relationship to its Japanese citizens during wartime. He observes that,
..the world is confusing and threatening to the average citizen. It can neither be understood nor influenced, and as a result, attachment to reassuring abstract symbols rather than to one's actions, become chronic. What symbol can be more reassuring than the incumbent of a high position who knows what to do and is willing to act, especially when others are bewildered and alone. (P. 33)
Much more could be said about this finding. The use of social science in the decision-making process would constitute a study in itself. Not only was social science used in the legal text to argue the existence and the nature of race, but social science has often set the context in which discussion happens. Obviously, the Hirabayashi decision did not complete the process of the construction of race. Race was de-constructed and then re-constructed for a variety of uses. The changes are evident even in the 1944 Korematsu v. U.S. decision. Though the results of that decision are essentially the same, the rhetoric has changed significantly. Most uses in Hirabayashi were confined to the apologia by Murphy and to comments on state legislation. The word "race" and its derivatives are used 25 times throughout the Korematsu text as opposed to 15 times in Hirabayashi. No Justice dissented in Hirabayashi. Three Justices dissent in Korematsu. Still, these dissents continue to reify the concept of race by questioning the legitimacy of the application of race rather than the legitimacy of the category itself.
Probably one of the most significant new words to enter the Korematsu text is "racism." The "conditions" that were almost self-evident in the Hirabayashi decision are now viewed with open suspicion. Justice Murphy now writes in dissent,
This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism. (paragraph 60)
Increasingly the text reflects the rhetoric of those who are being backed into a corner. The racism of the Nazi regime is all too clear and public. They do not wish to abandon the ideology of equality, but still they fear the danger which is symbolized by the Japanese in "our" country more than they fear loss of legitimacy. They fall back on the claim that the Constitution has a law that is above all other laws or amendments. That law is self-preservation. "We" must be protected from "them."
Along with support for the curfew and the internment of the Japanese, a new policy of "strict judicial review" is created in Korematsu. Post-Korematsu, the concept of race itself begins to shift and the focal group soon moves from Japanese to the construction of African-Americans as a race. Yet the debate still centers on whether race or citizenship should determine the policy of the government toward those who are defined as the "other" race.
There are other techniques or methods by which the Court constructs race and legitimates race-based policy. This discussion is not an attempt to say all there is to say on Hirabayashi. It is, rather, trying to encourage the use of a critical/reader response methodology to explore how racialist ideology is created and then used in the development of race-based policy.
It is no coincidence that positivist science, formalist legal ideology and racialist ideology all emerge at the same point in human history. The modern construction of race depends heavily on the assumptions of positivist science and legal formalism to give racialist ideology its legitimacy. It is not possible to explore racialist ideology without also addressing the assumptions of scientific positivism and legal formalism through which racialist ideology is legitimated. These evolving ideologies and their assumptions form the "nomos," the normative world, of the culture that produces the text, which then legitmizes a policy reality. As Edelman writes,
The most incisive twentieth-century students of language converge from different premises on the conclusion that language is the key creator of the social worlds people experience, not a tool for describing an objective reality. The "linguistic turn" in philosophy, social psychology, and literary theory has called attention to language games that construct alternative realities, grammars that transform the perceptible into nonobvious meanings, and language as a form of action. (P. 103)
It is these language games, as they construct race, that critical/reader response methodology explores.
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