Eugene Rostow articles
Eugene Victor Rostow (August 25, 1913–November 25, 2002), a longtime professor of law at Yale Law School, achieved his first public renown for publishing a pair of influential articles in 1945 that critiqued Executive Order 9066 and the wartime treatment of Japanese Americans. His 44-page law review article "The Japanese-American Cases—A Disaster," was a closely reasoned critique of the Supreme Court's decisions in the "Japanese American cases," notably Korematsu v. United States. His extended article "Our Worst Wartime Mistake," which appeared in the September 1945 issue of the popular Harper's Magazine, focused more broadly on a critique of Executive Order 9066 and its legacy. In addition to their incisive analyses of mass removal and confinement, Rostow's twin articles introduced the greater American public to the notion of reparations for those confined in the camps.
Eugene Rostow was born in Brooklyn, New York, the son of Russian-Jewish immigrants, and grew up in the New York area and in New Haven, Connecticut. Following studies at Yale University and Cambridge University, Rostow enrolled at Yale Law School, and graduated in 1937. After completing his studies, Rostow returned to Yale Law School to teach law. During World War II, Rostow took a leave from the school and entered government service, first in the Lend-Lease Administration and then with the State Department. In 1944, he returned to Yale, where he was named a full professor of law.
It was around this time that he began studying the court cases involving Japanese Americans, and then drafting a pair of articles on the subject. Although the two seem to have been written more or less concurrently, "The Japanese-American Cases—A Disaster," was the first to appear, in the June 1945 issue of The Yale Law Journal. The overall thesis of the article was that the indefinite "internment" of West Coast Japanese Americans under prison conditions, and the severe property losses they had sustained, had represented been a grave injustice, "the worst blow our liberties have sustained in many years." Worse, by upholding the government's actions in the "Japanese American cases," the Supreme Court had converted a "wartime folly" into permanent legal doctrine.
Rostow asserted that the government had not presented any factual basis for the military's removal and confinement of Japanese Americans, and added that even if the government had attempted to do so, the actual circumstances on the West Coast in 1942 would likely not have justified such a policy, since it was clearly guided not by military considerations but by West Coast race prejudice. Instead, the Supreme Court had assumed its own facts, imputing an ethnic presumption of disloyalty onto Japanese Americans by accepting that it was impossible to determine their loyalty on an individual basis. In the process, the court gave the military a blank check, while ignoring its own precedent with the Civil War-era case Ex Parte Milligan, where the justices had held that the arrest and imprisonment of civilians cannot be considered a military necessity while civil courts were still in operation.
Rostow concluded by outlining the actions that the court and the government should take to repair the damage done to Japanese Americans:
The first is the inescapable obligation of the Federal Government to protect the civil rights of Japanese Americans against organized and unorganized hooliganism… Secondly, generous financial indemnity should be sought, for the Japanese Americans have suffered and will suffer heavy property losses as a consequence of their evacuation. Finally, the basic issues should be presented to the Supreme Court again, in an effort to obtain a reversal of these war-time cases.
Shortly thereafter, Rostow published his Harper's Magazine essay. Although he largely summarized the arguments made in his previous law review article, it targeted a wider American audience rather than the legal community. In some places, he lifts quotes from his law article, notably his list of grievances and comparison to Nazi Germany. Rostow described the fate of Japanese Americans as an example of the evils of racism. Dubbing Executive Order 9066 and the government's actions under it "Our Worst Wartime Mistake," Rostow underlined both the injustice of sentencing one hundred thousand people to indefinite detention "on a record which wouldn't support a conviction for stealing a dog," and its implications for civil rights in general. Indeed, writing in the first weeks after the end of World War II and the revelations of the genocide of European Jews, he proclaimed that even as the American people were weighing the guilt of the German people for the actions of the Gestapo and the SS, they themselves bore the guilt of allowing the Japanese Americans to be confined in what Rostow referred to bluntly as "concentration camps."
In the years following the publication of his articles, Rostow remained at Yale Law School, where he served as dean from 1955 to 1965. Although he did not frequently interact with Japanese Americans in later years, in 1965, he appeared on the CBS documentary The Nisei: The Pride and the Shame with Walter Cronkite to discuss his articles. Like his younger brother, future National Security Advisor Walt Rostow, Eugene Rostow later served in high government positions, first in the State Department as Under Secretary for Political Affairs between 1966 and 1969, and later as the Director of the Arms Control and Disarmament Agency between 1981 and 1983. He became a staunch Cold Warrior in his later years and advocated for national defense. Still, he remained proud of his articles on Japanese Americans and cited them in later writings, notably an essay on presidential limits under the War Powers Act.
Rostow's twin articles, produced while the nation was still at war, represent a courageous expression of dissent from official policy, and demonstrate his ability to speak to academics and the American public about important issues of civil liberties. Although other figures, notably Norman Thomas in his 1942 pamphlet "Democracy and the Japanese Americans," had publicly criticized Executive Order 9066 and the resulting policy, Rostow was the first to deplore the wartime Supreme Court rulings, and his status as a legal scholar writing in an elite academic journal gave his critique an authoritative basis. His twin articles set a precedent for later legal studies of the Supreme Court's "Japanese American cases," and throughout the Redress Movement, Congress and scholars like Roger Daniels and Peter Irons referred to Rostow's twin articles. They stand as founding texts of an important legal canon and remain frequently cited to this day by historians and human rights scholars.
- Eugene V. Rostow, "The Japanese American Cases—A Disaster," Yale Law Journal 54.3 (June 1945), 490.
- Rostow, "The Japanese American Cases," 531.
- Rostow, "The Japanese American Cases," 533.
- Eugene Rostow, "Our Worst Wartime Mistake," Harpers (September 1945), 199.
- Rostow, "Our Worst Wartime Mistake," 201.
- Eugene V. Rostow, "Great Cases Make Bad Law: The War Powers Act," Texas Law Review 50.5 (May 1972).