Law in Contemporary Society

Transcendental Nonsense and the Functional Approach: What the Law Did to Japanese-Americans During WWII

-- By AliceHenderson - 16 Feb 2012

A Personal History

On February 19, 1942, President Roosevelt signed Executive Order 9066, sending over 100,000 Japanese-American U.S. citizens to internment camps to wait out the end of World War II. This is a historical fact with which any law student is familiar, but “all concepts that cannot be defined in terms of the elements of actual experience are meaningless.” Felix S. Cohen, “Transcendental Nonsense and the Functional Approach”, 35 Columbia L. Rev. 37 (1935). Here is an element of actual experience: when that legal decision was made, my grandmother was 18 years old, just a few months shy of her high school graduation. The daughter of immigrants but born and raised in Los Angeles, she was escorted with her family by American troops to a camp in Arkansas. They spent the next three years in army barracks, sleeping on mattresses stuffed with hay, and surrounded by armed guards and barbed wire. Allowed only what belongings they could fit into one suitcase, they lost their home and material possessions. What they lost of their dignity took much longer to recover.

Legal Definitions, Social Definitions

The Supreme Court held in Korematsu that the exclusion and confinement of a racial group, as prescribed under Executive Order 9066, was subject to strict scrutiny, that “nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either” and that the U.S. government had met that high threshold. The military had acted “in accordance with Congressional authority.” Korematsu v. United States, 323 U.S. 214, 218 (1944). The Court said, “not my job to question their judgment during a war” and put the constitution in the back of a drawer until safer times. The terms of the reasoning- "rigid scrutiny," "apprehension," "gravest imminent danger"- are artificial. The decision was circular and political; the law was just a pawn of the same social forces that allowed my grandmother's family to return to their home three years later and find another family living in it.

Function, Or What The Law Has Done

Legally sanctioned racism casts a long, dark shadow. From the immediate effect of a particular law (internment, as through Executive Order 9066 and Korematsu) to the resultant inequity over the course of time (white supremacy as through the unamended Constitution, Dred Scott, and countless others), the negative consequences can be traced with ease. The positive outcomes of a bad legal decision are more difficult to observe but no less meaningful. The most cynical evaluation of strict scrutiny for race-based classifications established by Korematsu would find the test utterly valueless given that the internment of 110,000 U.S. citizens of a certain racial descent passed muster. However, since the Court’s first articulation (and miscarriage) of this principle of equal protection jurisprudence, strict scrutiny has been wielded effectively to strike down racially discriminatory laws and decisions, including for example a Florida court’s decision to award custody of a child in a divorce case based on the race of the families in Palmore v. Sidoti, and race-based legal restrictions of marriage in Loving v. Virginia. Thanks to our nation’s history of racial discrimination, the Court will now assume racial prejudice unless the State can prove a compelling public interest motive. Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Which came first, the racist human or the racist law? While our history is somewhat of a chicken-or-egg conundrum, we are moving incrementally forward from the tragedies of our past.

Function Part II, Or I Am a Consequence

I am here at Columbia Law School because of one of those tragedies. I'm here because the psychological ruin of my grandmother caused by the internment contributed to my mother leaving home, moving to New York, marrying a non-Japanese political activist, and instilling in her daughter an intense sense of civic duty. The privilege I have experienced in my life can be credited to the social safety net that I was born on the right side of- the laws that allowed me to safely go to school, leave the country to study abroad, work in a field of my choosing, interact with people of different backgrounds, and any number of things that serve as stepping stones to the next rung in life. I am grateful, but I don't take for granted that I will always be a beneficiary of the law. Knowing that my grandmother experienced one of the many times in which, even with honorable intentions, the law was used to strip a people of their rights, I feel compelled to attempt, at least, to make it my responsibility to uphold and protect the laws that protect me.


In 1988, President Reagan awarded redress payments to Japanese-Americans who had been interned during World War II. It was a nominal sum, but last year, my grandmother gave it to me to put toward law school tuition. She didn’t articulate her intention, and she didn’t need to. She endowed me not with a gift, but with a reminder of her trauma to carry with me in my studies and in my work. In doing so, that government check is more than just the inadequate reparation for a time when this country fell short of its founding ideals of justice and equality; it is an investment in the struggle toward those ideals– in my struggle. I came to Columbia with the belief that the opportunity to study law here would be the opportunity to accrue the experiences and knowledge to prevent current and future miscarriages of justice evident in my grandmother’s story, but I wonder if my affect will be a drop in the ocean. Korematsu was never overturned; it sits on the books along with many other laws constructed of transcendental nonsense. My little arrow on the continued evaluation of consequences could take any number of directions to bring Korematsu to another positive result.


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r4 - 22 Jan 2013 - 20:10:10 - IanSullivan
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