Hirabayashi v. United States


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Gordon Kiyoshi Hirabayashi v. United States was one of four cases concerning aspects of the Japanese American exclusion and incarceration to be heard by the U.S. Supreme Court. Hirabayashi was found guilty of violating the curfew and exclusion orders. Because his prison sentence for the two offenses was served concurrently, the Supreme Court opted to rule only on the curfew violation, upholding the lower court ruling and the legitimacy of a measure specifically targeting American citizens of Japanese ancestry.

Gordon Hirabayashi was a student at the University of Washington who on May 4, 1942, began to disobey a curfew set for enemy aliens and American citizens of Japanese descent. Twelve days later, he reported to the FBI office in Seattle announcing his intention to violate the exclusion order guided by both his religious beliefs and his belief in the U.S. Constitution. He was arrested and jailed, charged with violations of both the curfew and exclusion order. The American Civil Liberties Union (ACLU) initially expressed interest in the case and brought in Frank L. Walters to represent Hirabayashi. However, due to internal conflicts, the ACLU had to pull back and a local committee led by Mary Farquharson was formed in Seattle to support his case.

Hirabayashi remained in King County Jail for five months until his trial on October 20, 1942, before Judge Lloyd D. Black and an all male jury. The jury returned with two guilty verdicts after ten minutes of deliberation. Judge Black sentenced Hirabayashi to two thirty day sentences to be served consecutively; Hirabayashi asked if he could serve his sentence in an outdoor road camp, expressing a willingness to take a longer sentence if necessary. Black then sentenced him to two ninety-day sentences to be served concurrently, which Hirabayashi and his lawyers accepted, not realizing the later legal implications this would have.

The case was appealed and heard before all seven members of the Ninth Circuit Court of Appeals in San Francisco, together with the appeals for the Korematsu and Yasui cases. Under the influence of Edward Ennis of the Justice Department, the appeals court invoked certification—essentially declining to rule and asking a higher court to rule on the case—to send the case directly to the Supreme Court.

The Supreme Court heard arguments on the Hirabayashi and Yasui cases on May 10 and 11, 1943. The ACLU had by then decided to support the case within the parameters set by its board and brought in Harold Evans to argue the case along with Walters. The ACLU's Osmond Fraenkel also rewrote the brief in part to conform to ACLU policy. The Northern California office of the ACLU submitted a separate amicus brief authored by Wayne Collins, while the Japanese American Citizens League deviated from its initial opposition to the test cases by also submitting an amicus brief that had been written by Morris E. Opler, an anthropologist who also the official "community analyst" at Manzanar. Because the sentences for the curfew and exclusion orders ran concurrently, the Supreme Court ended up considering just the curfew issue, presumably to avoid the exclusion issue that was the basis of the whole incarceration program.

The Supreme Court's ruling appeared on June 21, 1943. Though several of the justices came close to dissenting, in the end, Chief Justice Harlan Fiske Stone was able to produce a unanimous opinion upholding Hirabayashi's curfew conviction, which he authored. Stone's opinion argued that "some infringement on individual liberty" was allowable in time of war and that the government could adopt "measures for public safety, based upon recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others." Three concurring opinions were also published by Justices William O. Douglas, Wiley B. Rutledge, and Frank Murphy. Murphy's, initially drafted as a dissent, wrote that "[t]oday is the first time, so far as I am aware that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry." After comparing it "to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe," he wrote that "[i]n my opinion this goes to the very brink of constitutional power."

In the 1980s, the case was revisited when historical research documented that the government had hidden or knowingly falsified evidence during the original trials. Through the use of a petition for a writ of error coram nobis, both of Hirabayashi's convictions were eventually vacated.

Authored by Brian Niiya, Densho

For More Information

Hirabayashi v. United States, 320 US. 81 (1943), http://scholar.google.com/scholar_case?case=5939600273001810074&hl.

Bangarth, Stephanie. Voices Raised in Protest: Defending Citizens of Japanese Ancestry in North America, 1942–49. Vancouver: UBC Press, 2008.

Fine, Sidney. "Mr. Justice Murphy and the Hirabayashi Case." Pacific Historical Review 33.2 (May 1964): 195–209.

Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases. New York: Oxford University Press, 1983. Berkeley: University of California Press, 1993.

---. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. New York: Free Press, 1988.

Kang, Jerry. "Denying Prejudice: Internment, Redress, and Denial." UCLA Law Review 51.4 (2004): 933–1013.

Lyon, Cherstin. Prisons and Patriots: Japanese American Wartime Citizenship, Civil Disobedience, and Historical Memory. Philadelphia: Temple University Press, 2011.

A Personal Matter: Gordon Hirabayashi vs. the United States. Documentary film directed by John de Graaf. 30 min.

Yamamoto, Eric, Margaret Chon, Carol L. Izumi, Jerry Kang, and Frank H. Wu. Race, Rights, and Reparation: Law and the Japanese American Internment. Gaithersburg, Md.: Aspen Law & Business, 2001.