In Democracy’s Shadow:
The State of Emergency and the Internment of Japanese Americans during the World War II
I. Introduction
As the official philosopher of Nazi Germany, Carl Schmitt argued that “the sovereign who decides outside the law,” and under the state of emergency, the sovereign could suspend the rule of law and exclude Jews.[1] When the Nazi Germany adopted Schmitt’s philosophy, Adolf Hitler suspended the Weimar Constitution and the rule of law in the name of the state of emergency, then Auschwitz became the concentration camps and Jews were the victims of the national emergency in Germany. Schmitt pointed out, “Auschwitz is precisely the place in which the state of exception coincides perfectly with the rule and the extreme situation becomes the very paradigm of daily life.”[2] Moreover, under the rule of Nazi Germany, the Germany became a totalitarian state, “the camp is the space that is opened when the state of exception begins to become the rule,” which created a kind of person who is named “der Muselmann,” literally “the Muslim:”
The so-called Muselmann, as the camp language termed the prisoner who was giving up and was given up by his comrades, no longer had room in his consciousness for the contrasts good or bad, noble or base, intellectual or unintellectual. He was a staggering corpse, a bundle of physical functions in its last convulsions. As hard as it may be for us to do so, we must exclude him from our considerations.[3]
The Muselmann, who were put into the camps, were totally treated differently from the Germans. Under the state of exception, the Muselmann were separated from the Germany.
Following Carl Schmitt, Giorgio Agamben explores his bio-politics under the “state of emergency”. He argues, in the state of exception, the sovereign can suspend the laws and a kind of people who are called as “the sacred” will be deprived of their legitimate rights and be excluded from their communities.[4] Agamben discusses the Jews who were forced to the concentration camps and became “the sacred” under the Nazi Germany, but he has not considered “the sacred” in democratic states. Did this phenomenon also exist in democratic state, especially in America? Will it still happen in America?
In fact, in America, a model of democratic states in the world, it also produced this kind of “the sacred.” When it went into wartime time and American president declared the state of emergency in the United States, a kind of “the sacred” would be created and excluded, although there were not the same sacred as the Jews or the Muselmann who were put into the concentration camps in Nazi Germany. When Japan bombed the Pearl Harbor on December 1, 1941, fearing the potential attacks from Japanese Americans in the U. S West Coast, the U.S. government announced an unprecedented wartime internal security measure in the name of wartime necessity and national emergency state. Issuing Executive Order 9066, President Franklin D. Roosevelt authorized the Secretary of War to designate military areas "from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."[5] Based on this authority, the military removed over 120,000 men, women, and children of Japanese ancestry from the West Coast and incarcerated them in detention camps in the interior.[6] For those Japanese Americans, although they were the ancestry of Japanese, they were legitimately American citizens and were loyal to American government. As a result, they were still deprived of their citizen rights, treated unequally, relocated in the concentration camps.
Concerning the studies on the Japanese Americans, many scholars have helped us to understand the history of the Japanese Americans during the World War II. In order to rethink the origins and consequences of American state structures during World War II, Jason Scott Smith examined the role of the Work Projects Administration (WPA), one of the most important New Deal agencies, played in relocating the Japanese-Americans during the World War II.[7] Focusing on Nisei women, Pamela Sugiman explores the life stories of the Japanese Canadian women from the perspective of historical memory. [8] Allan W. Austin discusses how the Japanese American students were incarcerated during the World War II.[9] Erica Harth reflects the wartime internment of the Japanese Americans from the perspective of witnesses.[10] Alice Yang Murray explores the historical memories of the Japanese Americans and examines how they struggle for redress in America.[11] In this paper, rather than discuss how terrible their living condition during the internment, I’d like to discuss how, and why were they excluded from the perspective of national emergency. In part two, I will give a short history on how Japanese immigrated to America and how they were discriminated by Americans; in part three, I will discuss how they were excluded by American government in the name of wartime necessity. Finally, I will draw my own conclusion.
Part Two: The Japanese in America before World War II
Before 1853, Japan strictly prohibited Japanese to communicate with foreigners, which greatly limited the political, cultural and economic communication between the Japanese and the westerners. But since 1853, when Commodore Matthew Perry sailed into Tokyo Bay, Japan ceased its close policy towards western countries. Then the English and French emulated the United States and arrived in Japan to establish similar diplomatic and trade relations, which gradually forced Japan into the world stage.
During the Meiji Restoration (1868-1912), Japan started its industrialization. Accompanying with this process, it enforced open policies to the westerners and indirectly encouraged its citizens to emigrate to the United States and other European countries. In Japan, there were several reasons for Japanese to leave their hometown and immigrate to other countries. Firstly, the Japan government taxed Japanese increasingly taxes, which caused a large number of Japanese peasants were in debt or lost their own lands. Secondly, Japan’s national conscription law required men to perform military service, while most Japanese disliked it. Thirdly, Japanese heard that some Chinese were attempting to seek fortune in the U.S West Coast because there was a tide of gold rush there, which also attracted Japanese to leave their hometown. Forced by the harshly domestic policies and stimulated by the gold rush, like Chinese, Japanese started to immigrate to the United States.
From the late 19th century to the early 20th century, the population of Japanese immigrated to America rapidly increased. In 1869, the Japanese set up their first settlement EI Dorado County, near Sacramento, California. In 1871-1880, the U. S. census counted only 149 Japanese emigrated to the United States, while in 1901-1910, there were 129,797 Japanese emigrated to America, which was a huge increase (see Table I).
Table I: Japanese Immigration to the United States, 1861-1950.[12]
| Year | Numbers Immigrating |
| 1861-1870 | 186 |
| 1871-1880 | 149 |
| 1881-1890 | 2,270 |
| 1891-1900 | 25,942 |
| 1901-1910 | 129,797 |
| 1911-1920 | 83,837 |
| 1921-1930 | 33,462 |
| 1931-1940 | 1,948 |
| 1941-1950 | 1,555 |
As the emigrants of Japanese grew quickly, the population of Japanese in American was also greatly increased. In 1890, there were only 2,039 Japanese in America, while ten years later, in 1900, there were 10,151 Japanese. At the eve of the World War II, especially in 1940, the total population of Japanese were 285,115, which was a great amount (see Table II). Take Hawaii as an example. The initial groups of immigrants were drawn to work on Hawaiian sugar plantations, and labor contractors recruited workers to fill this need. In the late nineteenth century, an estimated 80, 000 Japanese men and women went to Hawaii to work as contract laborers.[13] By 1900, 39.7 percent of the population in Hawaii was of Japanese descent.[14]
Table II: Japanese Population in the United States, 1880-1940.[15]
| Year | Total U. S. | Total Japanese | Hawaii |
| 1890 | 62,947,714 | 2,039 | 12,610 |
| 1900 | 76,212,168 | 85,716 | 61,111 |
| 1910 | 92,228,531 | 152,745 | 79,675 |
| 1920 | 106,021,568 | 220,596 | 109,274 |
| 1930 | 123,202,660 | 278,743 | 139,631 |
| 1940 | 132,165,129 | 285,115 | 157,905 |
Before the Japanese’s arrival, the first Asians who immigrated to Hawaii and the US West Coast were Chinese. In the middle of 19th century, the late Qing Dynasty was corrupted and in political and economic crisis, which forced many Chinese to leave their hometown to earn a better living outside. When Chinese heard the gold rush in 1849, stimulated by the curiosity about the outside world, they started to emigrant to the United States. The Chinese were very industrial and diligent, comparing with Americans, they were much more competitive in the economic competition. Unlike Chinese, the Americans who were living in Hawaii and the West Coast were reluctant to work hard. Therefore, they could not compete with Chinese. In order to improve their living standard and change their economic situation, they started to discriminate Chinese laborers.
In the U. S. West Coast, they assumed that the Chinese immigrants were inassimilable and belonging to an inferior race. They were “alien ineligible to citizenship” and they were prohibited them from becoming naturalized citizens. They were segregated, limited occupationally and socially, and hemmed in by discriminatory laws. The phrase “A Chineseman’s chance,” commonly used at the time, reflected the fact that Chinese immigrants had no chance at all in dealing with the injustices heaped on them.[16] When Japanese immigrants entered to the America in this context, they were also considered “alien ineligible to citizenship” and subjected to discriminatory laws.
In late 19th century, Anti-Asian activists had first mobilized against Chinese immigrants. Like Chinese, when Japanese arrived at the mainland of the United States, they were also discriminated according to the same “yellow peril.” They portrayed Japanese immigrant men as spies or sex fiends and immigrant women as “mindless-immoral-fecund laborers.”[17] Japanese immigrant women were accused of “breeding like rats” and producing more “inassimilable” Japanese children.[18] In 1882, Chinese Exclusion Act was passed, which directly prohibited immigration from China. It was enforced between 1882 and 1892 and brought about labor shortages in the West, which offered a good opportunity for Japanese laborer.
Although Chinese and Japanese were discriminated in the West Coast, the Japanese did not experience immigration restriction until the so called “Gentlemen’s Agreement” of 1907-1908. During Theodore Roosevelt’s presidency, he negotiated this agreement in response to anti-Japanese groups who wanted to halt emigration from Japan. At the request of the U. S. government, Japan stopped issuing passports to laborers. In return, Congress never passed any formal exclusion law directed toward the Japanese. The immigration agreement was a diplomatic relations side step between the two countries. The U. S. government recognized Japan’s increasing military power in Asia, and saved Japan from any social and diplomatic embarrassment by not having an exclusion law passed toward its citizens. The Gentlemen’s Agreement curtailed the number of laborers to immigrate to the United States, but it did not prevent the immigration of Japanese women.
Finally the American government made an agreement with the Japanese government on the laborer issue, however, the U. S still strictly restricted the legal rights of the Japanese. In 1913, California passes the Alien Land Law, which denies “all aliens ineligible for citizenship” the right to own land in the state. Like California, similar alien land laws are soon passed in Washington, Oregon, Idaho, Montana, Arizona, New Mexico, Texas, Kansas, Louisiana, Missouri, and Minnesota also passed the similar alien land laws in order to prevent the Japanese to have lands in these states. Moreover, in 1920, a second Alien Land Law adopted in California forbids the leasing of lands to aliens “ineligible for citizenship.” Under pressure from the United States, Japan stops issuing passports to “picture bride” Japanese women, effectively halting their immigration from Japan.
In the 1920s, the American government enforced much more strict immigration policies towards the Japanese. In 1922, in the case of Takeo Ozawa v. U. S., the Supreme Court ruled that U. S citizenship was limited to “free white persons and aliens of African ancestry,” thus prohibiting people of Japanese ancestry from becoming naturalized citizens on the basis of race. Then the Congress passed the Cable Act, which warned Americans to consider their marriages to Japanese, because anyone who wanted to marry an “alien ineligible for citizenship” would automatically lose their U. S. citizenship. In 1924, the American government made the Immigration Act of 1924, the National Origins Act, which banned all immigration from Japan. Although the Cable Act was repealed in 1936, Japanese immigrants who wanted to move to America sharply reduced sharply from the 33,462 in 1921-1930 to 1,948 in 1931-1940(see Table I).
From the late 1860s to the 1910s, we can see clearly that Japanese immigrated to the United States at a quick speed. However, when Americans made acts to restrict Japanese and discriminated them, Japanese who moved to the U. S West Coast rapidly decreased. When the Immigration Act and the National Origins Act were passed in the 1920s, the amounts of Japanese immigrants from 33,462 in 1921-1930 rapidly reduced to 1948 in 1931-1940. Examining the short history of Chinese and Japanese in the U. S West Coast, we can draw a conclusion that since Asians firstly set up their settlements in Hawaii, they were discriminated. Although Asians played an important role in exploring the western territories, they were unequal and could not have the citizen rights as the Americans. From the late 19th century to the 1920s, the living condition of Asians was much worse than ever. After 1910, the Japanese immigrants to the United States were rapidly decreased; however, the Japanese population in the United States continued to increase. But if Americans would still discriminate them in the name of race, they would be the victims of American politics sooner or later. Although Americans discriminated the Japanese, they still could have their normal living.
Part Three: The State of Emergency and the Internment of Japanese Americans during the World War II
When the Pearl Harbor was attacked by the Japan army on December 7, 1941, Americans hysterically hated the Japanese. Newspapers across the country, especially in the West Coast, ran numerous articles that contributed to the anti-Japanese hysteria. In the Los Angeles Times such headlines as “Japan Pictured as Nation of Spies,” “Eviction of Jap Aliens Sought,” and “Lincoln Would Intern Japs” were commonplace.[19] Such statements as “A viper is nonetheless a viper wherever the egg is hatched” in the newspapers were directed at Japanese.[20] Japanese were labeled as spies, and their removal from the West Coast was seen as a common-sense remedy. Mayor Flether Bowron of Los Angeles went so far as to indicate that if President Lincoln were alive, he would round up the Japanese and put them where they could do no harm.[21] The San Francisco Examiner printed Henry McLemore’s opinion: “herd’em up, pack’em off and give them the inside room of the badlands. Let ’em be pinched, hurt, hungry and dead up against it.”[22]
Once knew the Pearl Harbor was attacked by the Japan army, President Franklin Roosevelt treated Japanese as alien enemies and immediately made his presidential proclamation to regulate them. He assumed that Japan was threatening Americans and the Japanese Americans were the alien enemy for America. He advocated, in order to secure the safety of Americans Japanese Americans should be strictly restricted, “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”[23] Under the authority of the Presidential proclamations of December 7 and 8, 1941, the Department of Justice announced to control and exclude alien enemies: “a number of areas on the west coast are being designated as prohibited areas from which all German, Italian, and Japanese alien enemies are to be completely excluded.”[24] After the attack, the FBI immediately arrested selected “enemy aliens,” including 2,192 individuals of Japanese ancestry.[25]
Fearing Japanese-Americans would attack Americans, the United States government proposed an internment policy to exclude Japanese Americans. On February 19, 1942, President Roosevelt authorized the internment with Executive Order 9066, which allowed local military commanders to designate "military areas" as "exclusion zones," from which "any or all persons may be excluded:"
Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities……I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.[26]
President Roosevelt assumed that the Japanese Americans were the potential “espionage” and “sabotage,” and they should be excluded from the entire Pacific coast, including all of California and most of Oregon and Washington, except for those in internment camps. Under this Order, more than 110, 000 Japanese Americans were deprived of their civil rights and forced into the camps during the war.
Take Hawaii as an example. On July 3rd, 1942, Hawaii government responded to the proposal of President Roosevelt and started to enforce the evacuation policies in Hawaii. According to the proposal of the Joint Chiefs of Staff, the United States president authorized the Hawaiian Department legally rights to enforce the presidential proposal and relocate the Japanese Americans “to the mainland of the United States for internment in concentration camps…… Japanese residents of the Hawaiian Islands, either United States citizens or aliens, who were considered by appropriate authorities in the Islands to constitute a source of power.”[27] Meanwhile, like Japanese, the Germans and Italians were also treated as the alien enemies for Americans. It was not well known that this Order was also applied to smaller numbers of residents of the United States who were of Italian or German descent. And during that time, “individuals of German and Italian ancestry also were interned or relocated during World War II, but in far fewer numbers—nearly 11,000 of German descent and 2,000 of Italian descent.”[28]
Moreover, President Roosevelt advocated Americans to fight against the fascists and internal enemies in the territory of America. On September 7, 1942, President Roosevelt claimed that he would “use every power” to protect the safety of Americans: “in the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act……The American people can…be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.”[29] Roosevelt was a very charismatic president in American history, when he declared the America was in the state of emergency and encouraged Americans to fight against alien enemies, which greatly boosted American officials.
Responding to President Roosevelt’s Executive Order 9066, American officials took their responsibilities to enforce this policy. The first formal military proposal for mass incarceration came from Lieutenant General John L. Dewitt, head of the Western Defense Command, on December 19, 1941. This proposal recommended the removal of all “alien subjects” fourteen years of age and over to the interior of the United States, where they would be restrained. The proposal included Italian and German nationals and was forwarded to Major General Allen W. Gullion, the army’s provost marshal general. Subsequently proposals by the War Department and the provost marshal general included having zones around key installations from which Japanese and other enemy aliens would be prohibited. Like Lieutenant General John L. Dewitt, Henry L. Stimson of the Secretary of War, John J. McCloy of the Assistant Secretary of War, Frank Knox
Of the Secretary of Navy and other high officials in American government advocated, supported or supervised to relocate or evacuate Japanese (see Table III).
Table III: Key Individual in the Decision to Evacuate and Relocate the Japanese Population in the United States.[30]
| Individual | Position | Role/Involvement |
| Franklin D. Roosevelt | President of the United States | Signed Executive Order 9066 |
| Francis Biddle | Attorney General | Believed exclusion and evacuation was unnecessary, but did not advise the President of this option |
| Henry L. Stimson | Secretary of War | Cabinet member who advocated evacuation and internment plan. |
| John J. McCloy | Assistant Secretary of War | Supported evacuation and internment plan |
| Frank Knox | Secretary of Navy | Supported evacuation of Terminal Island and Bainbridge Island Japanese from Navy installations. |
| J. Edgar Hoover | Director of FBI | Supported limited involvement with Japanese enemy aliens. Did not actively support full evacuation of entire Japanese population. |
| Curtis B. Munson | Intelligence, Special Investigator | Produced the Munson Report, investigation of the loyalty of Japanese in the United States. |
| Owen J. Roberts | Supreme Court Justice | Chaired the Roberts Commission investigation of Pearl Harbor |
| John L. DeWitt | Lieutenant General, Army | General in charge of evacuation program and assembly center program |
| Karl Bendetson | Colonel, Army | Supervised evacuation |
For Americans, it was very necessary for American officials to make various policies to relocate Japanese Americans in the US west coast. However, for the Japanese Americans, the internment was a disaster for them. When later reminisced personal memory of the internment as a Japanese American during the world war, John Y. Tateishi pointed out, although he was an innocent child, he was scared and his family was tortured mentally for forty years, and that experience was unforgettable:
“The Summer of’42 was not for us what it was for the rest of America’s children……for us, the summer of’42 was a time of confusion and fear, and a time of lost innocence……ours is an American story, so real and so profound that it could not be forgotten because we could not forget what the camp experience had done to our lives and the collective shambles the experience had created out of our psyches. For forty years, our parents’ generation could not talk about the war years, about the camps, about the terrible guilt and shame they felt for the violation of their spirit. They became silent and healed the exterior of their lives─and ours─but could not heal the pain within because they could never fully come to terms with what had happened to them. They were the victims, but in their minds they carried the collective guilt of the nation.”[31]
Although he was the legitimate citizen of America, he was treated unequally. He was just an innocent child at that time, while he was unhappy in the 1942 summer. Finally, his families had to be relocated and leave their hometown. Although he survived himself during the hard time, his family was broken, his child time was unhappy, which accompanied with him in all his rest time. It was unforgettable that he was tortured both mentally and psychologically for a long time.
Like John Y. Tateishi, Fred Toyosaburo Korematsu was also a victim of the wartime internment. In American legal history, the trial of Korematsu was a classical case, which could help us to know the real life of Japanese Americans during the World War II and how the internment changed their lives in all their lifetime. Korematsu was an U. S born Japanese American, and he stayed with his parents in California and reluctant to leave their hometown when California government was enforcing the internment policy in California. On May 9, 1942, when Fred Korematsu’s parents were evacuated from their Oakland home and moved to the Tanforan Assembly Center near San Francisao. Korematsu went to Nevada and did not report his whereabouts to the local government, who was enforcing the relocation policies in California. The main reason he went to Nevada was just to be with his Italian American girlfriend, Ida Boitano. They planned to leave California and move to Midwest or East where he could avoid being interned and they could be married. He pretended himself to be a Chinese in order to escape the inspection. On May 30, 1942, police arrested him when he was waiting for his girlfriend in San Leandro, CA. At the beginning, he told the police that his name was Clyde Sarah and claimed himself a Spanish-Hawaiian. Soon the California police found that he told lies to them, and then he realized that his plan failed. Finally he frankly told them the reasons why he wanted to cover his identifications. Soon Korematsu was put into jail.
On September 8, 1942, Korematsu was found guilty and sentenced to five years of probation, but in an unusual move, the judge did not impose the sentence. Technically, he was a free man, but because of the exclusion and evacuation orders, he was escorted by military police to Tanforan Assembly Center, where he joined the rest of his family. Soon Korematsu’s attorneys appealed the decision to the U.S. Supreme Court. Finally the Supreme Court in a 6-3 majority decision upheld the validity of the evacuation orders because of wartime necessity. The Court ruled that race was not the reason why Korematsu or any other person of Japanese ancestry was placed into confinement:
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were present, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.[32]
In 1984, Fred Korematsu sent his petition for a Writ of Coram Nobis to the United States District Court, N. D. California. Concerning the evidences in the case Korematsu v. United States (323 US 214, Supreme Court 1944), the court pointed out, and “government acknowledged the exceptional circumstances involved and the injustice suffered by petitioner and other Japanese-Americans…the government deliberately omitted relevant information and provided misleading information in papers before the court.”[33] Finally, the District Court granted Korematsu’s petition for a writ of Coram Nobis and denied the counter-motion of the respondent. It was happy for Korematsu who finally proved his innocence, although it cost him 40 years.
We cannot list how terrible the living condition of the other Japanese Americans, but we know that there were many other Japanese Americans who had the same experiences as John Y. Tateishi and Fred Korematsu. There were the legitimate American citizens, but they were treated unequally as the other American citizens. They should have the same civil rights as the other Americans, while they were deprived of their rights and were evacuated and put into the camps. The only reason which could explain it was that they were the ancestry of Japanese, while the Empire of Japan was the enemy of America at that time. The Supreme Court explained that the case of Korematsu in 1944 was based on wartime necessity rather than the race. However, when the District Court finally admitted that the trial of Korematsu v. United States (323 US 214, Supreme Court 1944) was based on the race rather than wartime necessity, it was a great irony for the Supreme Court.
Conclusion
During the wartime or when America entered the wars with other countries, a kind of people were expelled or punished by American government in the name of national emergency. When the Pearl Harbor was attacked by the Japan army, Franklin Roosevelt declared that the United States was in the state of emergency, then passed the Executive Order 9066 and interned the Japanese Americans in the concentration camps; like President Roosevelt, when the Pentagon and the World Trade Centre were attacked on September 11, 2001, President George W. Bush also declared that the United States was in the state of emergency, then asked the Congress to pass the USA Patriot Act immediately and launched the war against terrorism. During Franklin Roosevelt’s presidency, more than 11,000 Japanese Americans were treated as “alien enemy” and sent to the concentration camps; during George W. Bush’s presidency, US army arrested a large number of “potential terrorists” in Iraq and Afghanistan and sent them to the prisons at Abu Ghraib and Guantanamo bay. Beginning in 2004, American newspapers reported fully the accounts of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq, also known as Baghdad Correctional Facility, which greatly surprised Americans and the whole world.
For Americans, the interment of the Japanese Americans during the World War II was just a short episode in American history, but for Japanese Americans, it affected them in all their lifetime. In the case of Korematsu, United States made up false evidences and sentenced Korematsu to prison, although United States claimed that it was the “military necessity” rather than “race discrimination” on Japanese Americans. Until 1984, Korematsu’s petition for a writ of coram nobis was finally granted by the District Court, California, which overturned the final order in Korematsu v. United States (323 US 214, Supreme Court 1944). The Districted Court admitted the trial of Korematsu v. United States (1944) was based on the race rather than military necessity and violated the U. S Constitution. It cautiously pointed out, as a legal precedent, Korematsu v. United States (1944) “recognized as having very limited application.…it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”[34] Korematsu was lucky that the District Court of California finally confirmed his innocence, but Korematsu was also unfortunate, because he had to wait for 40 years to prove his innocence.
When we trace American history, we are much more surprised that the United States, as one of the most democratic states in the world, in the name of the state of emergency, American government had punished and is still punishing “alien enemies.” John Adams made the French-Americans as the victims of the Undeclared War with France (1798-1800), Woodrow Wilson arrested the communists during the World War I, Franklin Roosevelt relocated the Japanese Americans, Italians and the Germans in World War II and George W. Bush put the potential and dangerous terrorists into the Abu Graibu and Guantanamo Bay prisons.
In the 1830s, when Alex de Tocqueville travelled in America and examined the democratic institution and society in America, he assumed that the America was more democratic than Europe. “Alongside his social reading of democracy as a society of nearly equal men−a relatively new concept−is his political sense of democracy as the sovereignty of the people, the people ruling themselves, which was the original meaning of democracy in ancient Greece. In no other country had authority and power been so expanded from the one or the few to the many as in America, where, according to Tocqueville, the divine right of kings had been replaced by the divine right of the people.”[35] Although Tocqueville warned the potential danger of the “tyranny of the majority,” he did not notice that American democracy was also in potential danger due to the fact that the American presidents could declare the state of emergency.[36] In America, it was a very popular phenomenon that when American presidents declared the emergency status, some kind of people would be the victims. We cannot predict when will the next American President declare the state of emergency again, but we can assume that it will be happen again; we cannot predict who will be the next “alien enemy” in America, but we can assume that some people will be the victims of the state of emergency again.
[1] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2005), p.5.
[2] Giorgio Agamben, Remnants of Auschwitz: the Witness and the Archive, Daniel Heller-Roazen trans, (New York: Zone Books, 1999), p. 49.
[3] Jean Amery, At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and Its Realities, Sidney Rosenfeld and Stella P. Rosenfeld trans., (Bloomington: Indiana University Press, 1980), p. 9; Cited from Giorgio Agamben, Remnants of Auschwitz, ibid, p. 41.
[4] “The sacred” is kind of person who could be killed while not committing homicide in ancient Roman Law. For Giorgio Aganmben, it is a key term, without it, it’s hard to understand the bare life and the sovereign power from the perspective of his bio-politics. He thinks the basic political relations are the included and excluded, the people and the People, the natural life and the bare life, “the sacred” were exclude, lived their bare lives. Bio-politics is based on the sovereign ban, which creates a large number of the political subjects, namely, “the sacred” or the “homo sacer.” Moreover, he assumes, “the ‘people’ must begin with the singular fact that in modern European languages, ‘people’ also always indicates the poor, the disinherited, and the excluded. One term thus names both the constitutive political subject and the class that is, de facto if not de jure, excluded from politics……the constitution of the human species in a political body passes through a fundamental division and that in the concept ‘people’ we can easily recognize the categorical pairs that we have seen to define the original political structure: bare life (people) and political existence (People), exclusion and inclusion, Zoë and bios. The ‘people’ thus always already carries the fundamental bio-political fracture within itself. It is what cannot be included in the whole of which it is a pat(r)t and what cannot belong to the set in which it is always already included.” He discusses “the sacred” in detail in his monograph Homo Sacer: Sovereign power and Bare Life, in this paper, following Agamben, I want to examine “the sacred” in American history, although they could not be the same sacred as the Jews in Nazi Germany. See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998), trans. Daniel Heller-Roazen, pp. 176-8.
[5] Executive Order 9066: Japanese Relocation Order, issued Feb. 19, 1942, by President Franklin D. Roosevelt, in National Archives and Records Administration, Our Documents: 100 Milestone Documents from the National Archives (Oxford and New York: Oxford University Press), p. 179
[6] Legal scholars have pointed out that the Japanese American internment cases in the Supreme Court shifted the balance between national security and civil liberties in favor of military concerns at the expense of citizens' freedom. Eric K. Yamamoto, "Korematsu Revisited─Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for Better Accommodation of National Security Concerns and Civil Liberties," Santa Clara Law Review, 26 (1986), 1-62. Also see Eric K. Yamamoto, et al., Race, Rights and Reparation: Law and the Japanese American Internment (Gaithersburg, N.Y., 2001).
[7] Jason Scott Smith, “New Deal Public Works at War: The WPA and Japanese American Internment,” The Pacific Historical Review, Vol. 72, No. 1 (Feb., 2003), pp. 63-92.
[8] Pamela Sugiman, “Memories of Internment: Narrating Japanese Canadian Women's Life Stories,” The Canadian Journal of Sociology / Cahiers canadiens de sociologie, Vol. 29, No. 3 (Summer, 2004), pp. 359-388.
[9] Allan W. Austin, From Concentration Camp to Campus: Japanese American Students and World War II (Urbana and Chicago: University of Illinois Press, 2004).
[10] Erica Harth ed., Last Witnesses: Reflections on the Wartime Internment of Japanese Americans (Palgrave: St. Martin’s Press, 2001).
[11] Alice Yang Murray, Historical Memories of the Japanese American Internment and the Struggle for Redress (Stanford, California: Stanford University Press, 2008).
[12] U. S. Immigration and Naturalization Service, Statistical Yearbook of the Immigration and Naturalization Service (Washington: Government Printing Office, 1993), pp. 26-8. Cited from Wendy Ng, ibid, p. 3.
[13] Yamato Ichihashi, Japanese in the United States (Stanford, California: Stanford University Press, 1932), p. 27.
[14] Wendy Ng, Japanese American Internment during World War II: A History and Reference Guide (Westport and London: Greenwood Press, 2002), p. 2.
[15] Wendy Ng, ibid, p. 4.
[16] Daniels, Prisoners without Trial, Japanese Americans in World War II (New York: Hill and Wang, 1993), p. 6.
[17] Roger Daniels, The Politics of Prejudice: The Anti-Japanese Movement in California and the Struggle for Japanese Exclusion (Berkeley and Los Angeles: University of California Press, 1962), p. 86, pp. 89-90; Susan McCoin Kataoka, “Issei Women: A Study in Subordinate Status” (Ph. D Dissertation, University of California, Los Angeles, 1977), pp. 97-8.
[18] Emma Gee, “Issei Women,” in Counterpoint: Perspectives on Asian America, ed. Emma Gee (Los Angeles: University of California Asian American Studies Center, 1977), p. 361.
[19] Reginald Sweetland, “Japan Pictured as Nation of Spies,” Los Angeles Times, December 23, 1941, part 1, 3; “Eviction of Jap Aliens Sought,” Los Angeles Times, January 28, 1942, part 1. 1; “Lincoln Would Intern Japs,” Los Angeles Times, February 13, 1942, part 1, 6.
[20] “Jap Roundup” (editorial), Los Angeles Times, February 2, 1942, part 1, 6.
[21] “Lincoln Would Intern Japs,” Los Angeles Times, February 13, 1942, part 1, 6.
[22] San Francisco Examiner, January 29, 1942, quoted in Maisie Conrat and Richard Conrat ed., Executive Order 9066: The Internment of 110000 Japanese Americans (Cambridge, Massachusetts: MIT Press, 1972), p.52.
[23] “A Presidential Proclamation,” No. 2525, Dec. 7, 1941, in Roger Daniels, The Decision to Relocate the Japanese Americans (Malabar, Florida: Krieger Publishing Company, 1986[1975]), p.61.
[24] “Exclusion of All Alien Enemies from Prohibited Areas,” January 29, 1942, in Roger Daniels, ibid, p.67.
[25] Michell T. Maki, Harry H. L. Kitano and S. Megan Berthold, Achieving the Impossible Dream: How Japanese Americans Obtained Redress (Urbana and Chicago: University of Illinois Press, 1999), p.27.
[26] “Executive Order 9066: Japanese Relocation Order,” in National Archives and Records Administration ed., Our Documents: 100 Milestone Documents from the National Archives (New York and Oxford, Oxford University Press, 2003), p. 179.
[27] “The Problem in Hawaii,” July 3, 1942, in Roger Daniels, ibid, p. 70.
[28] According to Immigration and Naturalization Service records, 10,905 German legal resident aliens and German-Americans were taken in under the enemy alien program, See Evelyn Nieves, “Past Recalled for Japanese-Americans,” New York Times, September 27, 2001, p. A26; also see Timothy J. Holian, The German-Americans and World War II: An Ethnic Experience (Jackson, TN: Grove/Atlantic Press, 1998), p. 1.
[29] Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (New York: Harcourt Brace, 1948), pp. 268-69.
[30] Wendy Ng, ibid, p. 17.
[31] John Y. Tateishi, “Memories from Behind Barbed Wire,” in Last Witnesses: Reflections on the Wartime Internment of Japanese Americans (Palgrave: St. Martin’s Press, 2001), pp. 129-131
[32] Korematsu v. United States, 323 US 214, Supreme Court 1944, p. 224.
[33] Korematsu v. United States, 584 F. Supp. 1406 - Dist. Court, ND California 1984, p. 1420.
[34] Korematsu v. United States, 584 F. Supp. 1406 - Dist. Court, ND California 1984, p. 1420.
[35] “Introduction,” in Alexis de Tocqueville, trans. Gerald E. Bevan, Isaac Kramnick, Democracy in America: and Two essays on America (Penguin Books, 2003), xxvi.
[36] Concerning the tyranny of the majority, see “chapter 8: What Moderates the Tyranny of The Majority in the United States?” in Alexis de Tocqueville, ibid, pp. 305-6.
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