All that remains of the Heart Mountain concentration camp, where the United States imprisoned over 14,000 Americans of Japanese descent between 1942 and 1945, is the camp’s hospital building. Over the course of a few months in 1942, the federal government transformed hundreds of acres in remote northwest Wyoming—near Yellowstone National Park—into the state’s third most populous city. The valley plain beneath Heart Mountain became one of ten “Relocation Centers,” the Orwellian name given to the World War II era camps in which over 100,000 people were imprisoned on the basis of their Japanese heritage. Back then, Heart Mountain was a bustling camp consisting of barracks, mess halls, toilet and laundry facilities, recreation spaces, workshops, schools, the hospital, a courthouse, administration buildings, nine guard towers, and a barbed-wire perimeter fence. This October, when I scanned the horizon for some sense of place or history, all I could make out was the original hospital building and snow-covered fields.
I traveled to Wyoming with a group of law students under the auspices of the Fellowships at Auschwitz for the Study of Professional Ethics (FASPE). FASPE asks its fellows, young professionals and students from the fields of law, medicine, journalism, business, and religion, to recognize and confront their ethical responsibilities in light of the roles their historic counterparts played in enabling the Nazi regime. Typically, the program brings fellows to historic sites in Germany and Poland, including Auschwitz. Together, they draw contemporary meaning and insight from the Nazi period. My cohort’s initial trip, planned for the summer of 2020, was canceled due to the Covid-19 pandemic. With the arrival of vaccines in 2021, we re-rescheduled the travel and hoped to gather in Poland in October 2021. But as Delta fueled another global wave of infections this fall, the trip was again canceled. Shortly thereafter, FASPE announced we would travel to Heart Mountain instead.
We had been studying and preparing for an experience grounded in the Nazi Regime and the Holocaust. The pivot to the United States’ system of Japanese-American concentration camps was abrupt. It demanded a change in perspective, but not in approach. We knew there are few, if any, modern atrocities that compare to the Holocaust. It would not be enough to contemplate the gravity of evil that unfolded in Nazi Germany. Our goal was to identify its medium and method. Lawyers, doctors, journalists, religious leaders, and business leaders were all implicated. Our responsibility as young professionals, therefore, was always to resist the urge simply to look at the professional class of Nazi Germany and recoil from their exceptional evil. In a way, the last-minute switch to this country’s moral failure reduced the temptation to take comfort in historical and ethical distance. But the temptation remained.
Among law students, the imprisonment of Japanese-Americans during World War II immediately recalls Korematsu v. United States. Korematsu, decided almost exactly seventy-seven years ago, is infamous. It upheld a military order requiring the forced removal of 100,000 people of Japanese descent from the West Coast. The Supreme Court justified the order as necessary to prevent espionage and sabotage during the war with Japan. It was immaterial that no one questioned the loyalty of the petitioner, Fred Korematsu, to his country. Nor were there particular suspicions of the tens of thousands of other citizens forced from their homes. The government targeted them solely on the basis of race. In constitutional law, such racialized government action triggers the most exacting level of judicial review and scrutiny, one the government rarely survives. Korematsu is a rare exception.
As a result, the decision has become a shorthand for bad legal reasoning. Scholars place the case in the “anti-canon” of Supreme Court jurisprudence, meaning it is among those seminal decisions that instruct and guide by virtue of how clearly wrong they were. Other examples include Dred Scott, which held people of African descent could not be U.S. citizens, and Plessy v. Ferguson, which enshrined the principle of “separate but equal” in the law.
Retrospectively denouncing decisions like Dred Scott, Plessy, and Korematsu as clearly “wrong” and outside the canon of constitutional law helps protect the authority of the Court and the majesty of the law. It suggests that there were “right” answers that could and should have been reached. And it implies the Court and the law arrive at those answers more often than not. Under this logic, the law’s exceptional failures affirm its general rectitude. Yet the very notion of “right” Supreme Court decisions belies the nature of a judicial system in which nine individuals are the ultimate arbiters of what the Constitution means. Justice Robert Jackson, who wrote a powerful dissent in Korematsu, once remarked that the justices of the Supreme Court “are not final because we are infallible, but we are infallible only because we are final.” Due to this structure of judicial review, Korematsu, and for that matter Dred Scott and Plessy, were not legally wrong, even if they were morally odious.
Perhaps more troublingly, it is not even clear the Supreme Court entirely consigned those decisions to the dustbin of legal history. There is an alarmingly consistent racial logic that flows through much of the anti-canon, one the Court has appeared unwilling to confront head on. Dred Scott was overruled not by a subsequent decision but by a civil war. Plessy was implicitly rejected by Brown v. Board of Education, but that decision’s order to end segregation “with all deliberate speed” signaled a problematic lack of resolve. Korematsu, for its part, still lives.
Referring to Korematsu in Trump v. Hawaii, Chief Justice Roberts opined “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” The statement, though a welcome repudiation of a repugnant decision, did not actually overturn Korematsu. It was dicta, an incidental statement of opinion that was not essential to the Court’s holding and therefore not binding as precedent. That Korematsu’s legacy endures is also clear from the context of Chief Justice Roberts’ statement: a decision that upheld President Trump’s “facially neutral” order prohibiting citizens from majority Muslim countries from entering the United States. Numerous iterations and legal refinements had rendered the order, colloquially known as “the Muslim Ban,” sufficiently neutral for a willfully credulous majority of Supreme Court justices.
Undeniably, the Muslim ban was a lesser evil than the Japanese-American concentration camps, just as the American concentration camps were undeniably a lesser evil than the Nazi labor and death camps. But professional and moral duty do not allow us to take comfort in those facile distinctions. The danger, as Justice Jackson’s dissent in Korematsu presciently warned, was that “once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination…The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” History does not repeat itself, but it rhymes.
Yet even if the Court in Korematsu had refused to rationalize the principle of racial discrimination, it would have stood alone. Nearly every other arm of government and much of civil society had already affirmed Japanese-American imprisonment. Longstanding anti-Asian racism had marginalized the Japanese-American community for generations. The initial push for forced removal then came from Californian agricultural interests eager to eliminate competition from highly successful Japanese-American farmers. Members of California’s congressional delegation were immediately responsive to the white agricultural lobby and advocated on its behalf in Washington. President Roosevelt resisted briefly, then acquiesced. The Army zealously implemented the order, with Congress passing legislation to give it greater teeth. Neighbors of citizens being forcibly removed clamored to buy up businesses and personal property for rock bottom prices as Japanese-Americans were forced to liquidate their wealth in a matter of weeks. So, when Korematsu gave America’s concentration camps a constitutional imprimatur, it merely consummated the abandonment of freedom and justice that had already taken place at numerous levels of government and society. At that point, over 100,000 people had lost their homes and businesses. They had been marked as likely traitors and criminals. And they had already spent two years in prison. Justice was delayed and then denied.
If there is any story of redemption here, it is in the camps themselves. At Heart Mountain, imprisoned Japanese-American citizens built and ran their own courthouse. They published their own newspaper. They completed a massive and complex irrigation project to sustain the desolate fields surrounding the camp, then helped local ranchers and farmers to cultivate the land. They fielded a basketball team that played local schools and had their own boy scout troop. They also had sumo wrestling competitions and practiced traditional Japanese dance. Their lives, even in confinement, exemplified the richness of American life and identity that the U.S. government could not, or would not, accept.
When the federal government perversely reinstated the draft for Japanese-American men, hundreds went to the battlefields of Europe. Many served in the famed, segregated 442nd Regimental Combat Team. Some earned the nation’s highest military award, the Medal of Honor. Still others followed in the great American tradition of civil disobedience, refusing to fight for a country that refused to grant them their full rights.
Above all, they sustained a communal and family life in bleak and unsheltered times. In The Origins of Totalitarianism, Hannah Arendt wrote that “there remains also the truth that every end in history necessarily contains a new beginning; this beginning is the promise, the only ‘message’ which the end can ever produce. Beginning, before it becomes a historical event, is the supreme capacity of man; politically, it is identical with man’s freedom…This beginning is guaranteed by each new birth; it is indeed every man.”
Historians at the Heart Mountain Interpretive Center, a museum built to tell the stories of the people imprisoned there, estimate that there were 548 births and 183 deaths at Heart Mountain. That means, in the hospital that is now the last remaining structure from one of America’s largest concentration camps, life outpaced death. As institution after institution of American government and society failed them, imprisoned Japanese-Americans’ fidelity to freedom outlived their country’s betrayal of it.
Ian Ramsey-North is a third-year student at BC Law. Contact him at email@example.com.