Source:
Adapted by Tarry L. Lindquist from the Hirabayashi Lesson, written by Margaret Fisher and Julia Gold, the Institute for Citizen Education in the Law, Seattle, Washington, and updated in 2012. Staff at the Washington State Administrative Office of the Courts (AOC) edited the lesson. For more information, contact AOC Court Services, 1206 Quince Street SE, PO Box 41170, Olympia WA 98504-1170. For an electronic copy of this lesson, or to view other lesson plans, visit Educational Resources on the Washington Courts Web site at: www.courts.wa.gov/education/.
Objectives:
Grade Level:
Grades 4-8
Time:
At least one class period (approximately 50 minutes)
Materials:
One copy of Handout 1 (Time Line) for each student
(The teacher should prepare this ahead of time for students and the judge. The teacher and judge should also have a copy of the answer key to the time line, which is included with the lesson plan.)
Note: This lesson assumes the teacher has introduced students to the history of internment, and specifically, to Gordon Hirabayashi's case. The students should have a basic understanding of this period in history and of Mr. Hirabayashi's background. They should also be familiar with the Fifth and Fourteenth Amendments, concepts of curfew, Executive Order 9066, and Civilian Exclusion orders.
Procedures:
Lt. General DeWitt issued Civilian Exclusion Order Number 57 on May 10, 1942. It required persons of Japanese ancestry in a specific area (including the University District in Seattle where Gordon Hirabayashi lived) to report to a Civil Control Station in Seattle between the hours of 8:00 a.m. and 5:00 p.m. on May 11 or May 12, 1942.
Lt. General DeWitt issued Public Proclamation Number 3 on March 21, 1942. It established a curfew period and provided that after 6:00 a.m. on March 27, 1942, all persons of Japanese ancestry must remain within their place of residence between the hours of 8:00 p.m. and 6:00 a.m.
Remind students the U.S. government had the burden to prove these charges beyond a reasonable doubt. Point out the case was tried in the federal court at the U.S. District Court for the Western District of Washington, Northern Division, in Seattle.
The U.S. argued Mr. Hirabayashi violated two different orders, the exclusion order and the curfew order.
Count 1: To win its case for violation of the exclusion order, the government needed to show that Gordon Hirabayashi did not report to the U.S. Civil Control Station on May 11 or May 12, 1942. The U.S. argued Mr. Hirabayashi did not report to the Civil Control Station on those dates.
Count 2: To win its case for violation of the curfew order, the government needed to prove that Mr. Hirabayashi violated the curfew by staying out between 8:00 p.m. and 6:00 a.m. The U.S. argued Mr. Hirabayashi was out past the curfew time.
Gordon Hirabayashi argued he had committed no act of espionage or spying and there was no proof he had committed such an act. He was not even accused of espionage.
Mr. Hirabayashi argued he was a loyal American citizen. He stated he did not report to the Civil Control Center and had not remained within his residence during the curfew hours because he honestly believed the evacuation and curfew orders were unconstitutional and violated his rights as an American citizen. He asserted the orders discriminated against him because of his Japanese ancestry.
Note: Although Mr. Hirabayashi did not specifically state which constitutional rights were violated, it would be his Fifth Amendment right to due process ("No person shall be . . . deprived of life, liberty, or property, without due process of law”). The equal protection clause of the Fourteenth Amendment is the amendment used today in discrimination cases (along with many specific laws that prohibit discrimination). However, the Fourteenth Amendment, as written, only applied to actions by the states. At the time of Mr. Hirabayashi's trial, the Fourteenth Amendment's equal protection clause had not been formally incorporated into the Fifth Amendment; therefore, it was not applicable to the federal government. Mr. Hirabayashi's attorney made some of these arguments to the judge anyway.
Judge Lloyd Black instructed the jury that both orders were valid and enforceable. If they found as matters of fact that Gordon Hirabayashi was of Japanese ancestry and therefore subject to the orders, he violated the curfew, and he failed to report for evacuation, then they should find Gordon Hirabayashi guilty. The jury returned in 10 minutes with a finding of guilty on both counts.
Note: At the Hirabayashi trial, Judge Black actually refused to use any of the instructions proposed by the defendant.
At sentencing the next day, the judge took the five months that Mr. Hirabayashi had already spent in the King County jail into account and sentenced him to 30 days on each count, to be served consecutively.
Mr. Hirabayashi then asked if he could serve a longer sentence--90 days--because he had found that if his sentence was at least 90 days, he would be allowed to serve the sentence outside a prison, in a road camp. The judge agreed and changed the sentence to 90 days for each count, to be served concurrently.
Note: Mr. Hirabayashi and his lawyers agreed, not realizing that the U.S. Supreme Court would use the concurrent sentences to avoid ruling on the constitutionality of the exclusion order and rule only on the curfew order, considered to be less intrusive, and therefore, more justifiable. In Hirabayashi, the U.S. Supreme Court said imposing an evening curfew exclusively on Japanese Americans was not a violation of the equal protection clause of the Fourteenth Amendment.
Note: Fourth and fifth grade classes may only get this far in one class period.
A variable is something that can change. Suppose we think of Gordon Hirabayashi as a variable, so that we could change his actions back in history. Or we could change Judge Black. Or the jury. Work in small groups for a few minutes to come up with a different outcome for the case, which is different because of a change in the actions of one of these key players or variables. Think about how history would be altered because of a variable.
Examples: Judge Black could have altered his instructions to the jury. Gordon Hirabayashi could have denied that he broke the curfew. The jury could have returned a verdict of not guilty.
Ask students how this would have changed history. Would it have been for better or for worse?
Extension Activities/Procedures:
Congress should not have delegated its legislative power to the military; such delegation allowed military commanders to issue orders requiring curfew and exclusion.
The orders violated the due process clause of the Fifth Amendment and the equal protection clause of the Fourteenth Amendment by unfairly discriminating against Japanese Americans as a class.
The military commander had proper authority from Congress and the President; there had been no time to determine the loyalty of individual Japanese Americans.
Japanese Americans were not assimilated into the white population because of social, economic, and political conditions. This isolation might have increased their attachment to Japan, making them potentially willing to aid the enemy.
The government's actions were reasonable considering all of the circumstances.
On December 17, 1944, the War Relocation Authority announced that internment camps would close.
In 1976, President Gerald Ford rescinded Executive Order 9066 and called the internment "a mistake." In 1980, Congress repealed Public Law 503 and created the Commission on Wartime Relocation and Internment of Civilians. The Commission conducted hearings on the internment from July to December 1981. The Commission's report, Personal Justice Denied, issued December 1982, concludes that "a grave injustice" had been committed against Japanese Americans.
In 1983, Gordon Hirabayashi filed a petition for writ of coram nobis seeking vacation of his convictions on the grounds the government knowingly suppressed evidence during his trial and appeal. Coram nobis is a rarely used judicial process, by which a court can correct an error made in an earlier criminal conviction.
In 1985, Gordon Hirabayashi had a second trial on his coram nobis petition. The evidence at trial consisted of documents found at the National Archives and others obtained under a Freedom of Information Act request that showed government lawyers during the appeal to the U.S. Supreme Court in 1943 had intentionally withheld important intelligence reports and other evidence from the courts, which showed the "military necessity" for the internment was less dire than asserted.
For example, the government lawyers had claimed there was no time to determine the loyalty of individual Japanese Americans. The evidence uncovered revealed the military commanders had decided that it would be impossible to determine loyalty of Japanese, regardless of the time factor.
The judge at Hirabayashi's second trial set aside the conviction on Count 1 (the exclusion order), but not on Count 2 (the curfew order). Both sides appealed the decision and the U.S. Ninth Circuit Court of Appeals set aside both convictions. Finally, in 1987, Gordon Hirabayashi's struggle to clear his name was over.
In August 1988, Congress passed a statute that provided compensation, up to a maximum of $20,000 per individual, for Japanese Americans and resident aliens who were living as of August 10, 1988 and who were confined, held in custody, relocated or otherwise deprived of property or liberty as a result of Executive Order 9066.
In early 1942, the United States was at war with Japan. This conflict followed the surprise attack by Japan on Pearl Harbor on December 7, 1941. Almost immediately, the Japanese went on to attack Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. Many people feared Japanese air raids and invasion of the West Coast by Japanese forces. Attitudes to Japanese Americans went from relative tolerance to hostility.
Out of a fear of espionage by Japanese persons in the United States or an invasion by Japanese military, the U.S. government placed severe restrictions on the rights of persons of Japanese ancestry during World War II. In the western states, Japanese citizens and aliens were subject to detention in guarded camps whether or not they were as individuals at all likely to engage in disloyal acts. These actions were taken with the unanimous concurrence of the various branches of government.
As a reaction to public pressure and on the advice of the War Department that military necessity required it, President Franklin Roosevelt issued Executive Order 9066 on February 19, 1942. This security measure authorized military commanders to exclude persons from vast areas. Congress passed Public Law 503 on March 21, 1942, which made it a federal crime to violate any orders that military commanders made pursuant to this authority.
Beginning in March 1942, Army Lieutenant General John DeWitt issued a series of such orders for Military Area Number 1 -- the Pacific coast states. These orders included a curfew that kept Japanese persons in their residences all night and required the movement of Japanese persons from certain areas to inland relocation centers. Lt. General DeWitt issued Public Proclamation Number 3 on March 21, 1942. It established a curfew period and provided that after 6:00 a.m. on March 27, 1942, all persons of Japanese ancestry must remain within their place of residence between the hours of 8:00 p.m. and 6:00 a.m. On May 10, 1942, Lt. General DeWitt issued Civilian Exclusion Order Number 57. It required persons in specific areas to report to a Civil Control Station between the hours of 8:00 a.m. and 5:00 p.m. on May 11 or 12, 1942.
Gordon Hirabayashi was born in Auburn, Washington on April 23, 1918. His parents were both born in Japan and came to the U.S. as teenagers. Gordon Hirabayashi attended public schools in King County and was active in Boy Scouts. He entered the University of Washington in 1937 and was a student there in the spring of 1942 when the government issued the curfew and exclusion orders. While at the University, Mr. Hirabayashi was active in the YMCA and the Society of Friends (Quakers).
Mr. Hirabayashi decided to defy the military orders because:
It was my feeling at that time, that having been born and educated here and having the culture of an American citizen, that I should be given the privileges of a citizen -- that a citizen should not be denied such privileges because of his descent. I expressed my thoughts that I had a right to stay.
On May 16, 1942, Mr. Hirabayashi voluntarily reported to the Federal Bureau of Investigation (FBI). The FBI charged him with a violation of Exclusion Order Number 57 and placed him in the King County jail, where he remained until his trial. Later, the FBI found a diary in which he recorded his curfew violations; the FBI then charged him with violation of the curfew order under Public Proclamation Number 3.
Gordon Hirabayashi's was the first case the U.S. Supreme Court heard regarding the constitutionality of the military orders issued pursuant to Executive Order 9066.
Mr. Hirabayashi's lawyers argued that Congress unconstitutionally delegated its legislative power to the military by authorizing Lt. General DeWitt to issue the orders. His lawyers also asserted the due process clause of the Fifth Amendment prohibited the discrimination against citizens of Japanese descent. Because Mr. Hirabayashi was a loyal citizen, he should be treated as an individual. He was deprived of his life, liberty, and property without due process of law.
The U.S. government argued that the military commander had authority from Congress and the President. The government also claimed there was no time, because of the imminent danger of air raids and invasion by Japanese forces, to determine the loyalty of individual Japanese citizens.
The U.S. Supreme Court issued a unanimous ruling on June 21, 1943, that affirmed Hirabayashi's conviction and upheld the government's action. The Court chose to address only the curfew order, because the trial judge made the sentences on the two convictions concurrent. The Court found that under the war powers given to the President and Congress in Articles I and II of the U.S. Constitution, the President and Congress have wide discretion to determine the nature and extent of the danger during war and how to resist such danger. The Court concluded there was a "substantial basis" for the action taken and cited information about how Japanese had not assimilated into the white population, how Japanese children attended Japanese language schools believed to be sources of Japanese nationalistic propaganda, and how many Japanese American citizens were actually citizens of Japan also because Japan allowed dual citizenship.
The Court then turned to the discrimination argument. The Court pointed out the Fifth Amendment does not contain an equal protection clause as that found in the Fourteenth Amendment. (The Fourteenth Amendment is specifically aimed at discrimination by the states, not the federal government. In the 1950's, the U.S. Supreme Court informally incorporated the equal protection clause of the Fourteenth Amendment into the due process guarantees of the Fifth Amendment, which applies to the federal government).
After stating that distinctions between citizens solely because of their race are "odious to a free people whose institutions are founded upon the doctrine of equality" and that discrimination based on race alone would be insupportable "were it not for the fact that 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," the Court concluded:
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 most circumstances racial distinctions are irrelevant.
Gordon Hirabayashi's case and the cases filed by three other individuals challenging Executive Order 9066 and other orders issued pursuant to it can be classified into three categories, based on the U.S. Supreme Court's treatment of the issues in its decisions:
The decision in Korematsu was the start of a revolution in constitutional analysis of equal protection issues. The opinion gave great deference to the combined war powers of the president and Congress as these detentions far exceeded anything necessary to protect the country. The majority opinion agreed with the dissent as to the general burdens on a person because of race but these justices felt the needs of the nation, as perceived at the start of the war, justified these measures.
The majority opinion by Justice Black established the basis for a new constitutional standard of review of race classifications. The opinion established three points for future analysis of classifications based on race or national origin. First, these classifications were "suspect," which meant that, at a minimum, they were likely to be based on an impermissible purpose. Second, these classifications were to be subject to independent judicial review -- "rigid scrutiny." Third, the classification would be invalid if based on racial antagonism and upheld only if they were based on "public necessity."
Significant excerpts taken from J. Nowak, R. Rotunda, and J. Young, Constitutional Law
pp. 631-633 (2d ed. 1983).
Directions: Place the corresponding letter on the time line below where appropriate. Some years have more than one historic event. These years are marked with the asterisks (*).
Early |
December 1941 |
February 1942 |
March 1942 |
May 1942 |
October 1942 |
|||||||||||
1913 |
1918 |
1924 |
1937 |
7 |
8 |
19 |
20 |
18 |
21 |
24 |
4 |
9 |
10 |
11&12 |
16 |
|
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
Directions: Place the corresponding letter on the time line below where appropriate. Some years have more than one historic event. These years are marked with the asterisks (*).
Early |
December 1941 |
February 1942 |
March 1942 |
May 1942 |
October 1942 |
|||||||||||
1913 |
1918 |
1924 |
1937 |
7 |
8 |
19 |
20 |
18 |
21 |
24 |
4 |
9 |
10 |
11&12 |
16 |
|
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
* |
C |
H |
E |
L |
G |
I |
A |
D |
K |
M |
Q |
P |
N |
O |
B |
J |
F |