The lives of two American heroes ended quietly last week—two Americans who believed deeply in the Constitution, its meaning, and its promise. Despite living lives facing the ugliest aspects of our nation’s actions, both stood by their beliefs that America could do better and that the Constitution required it.
Months after Japanese war planes bombed Pearl Harbor, President Franklin D. Roosevelt signed Executive Order 9066, which authorized the U.S. Secretary of War and Commanders of the Armed Forces to declare swaths of the United States “military areas” from which “any or all persons may be excluded.”
Proponents cited national security concerns and the need to root out suspected spies and those plotting to attack the United States. The language of the order was carefully crafted to evade legal challenges and did not name specific racial groups, ethnicities, or religions. Regardless, its purpose was to pave the way for the targeted relocation and interment of the entire Japanese American community along the West Coast. In time, over 110,000 Japanese Americans would be forced into internment camps in Arizona, Montana, and Utah.
This series of events progressed to the drumbeat of war in a climate of intense fear and distrust of immigrants and anyone who did not pass muster as “American” or patriotic. Gordon Hirabayashi’s decision to defy the Executive Order and refuse to relocate was heroic. It was also lonely. Defying the relocation order meant separation from his family and community. The nation at large was at best unsympathetic to his plight and for the most part supportive of measures in the name of national security. Hirabayashi’s act of resistance was guided by an astounding faith in Constitutional principles and the ability of the courts to balance the scales of justice to protect unpopular minorities.
Forty years passed before Hirabayashi’s faith was affirmed. In the span of those 40 years, a civil rights movement burgeoned and Hirabayashi’s struggle became less lonely and came to be embraced as a fundamental civil rights cause. Organizations such as the Japanese American Citizens League and the Asian Law Caucus led a successful campaign to obtain redress for internment survivors. Eventually in Hirabayashi v. United States, a federal judge found the government had withheld information from the U.S. Supreme Court that may have challenged the legal basis for the internment of Japanese Americans.
Hirabayashi’s struggle—his resistance and long awaited vindication—is often celebrated as evidence of the beauty of American democracy and its judicial system. But to view his story as a closed chapter in American history is to do his legacy a disservice. Hirabayashi understood the plight of interned Japanese Americans as one parallel to current use of executive war powers directed at Arab, Muslim, and South Asian communities. In the current calls for heightened detention powers, curtailing of civil liberties and surveillance of “suspect” communities, Hirabayashi heard the echoes of Executive Order 9066. We should honor his legacy by heeding his words: “As fine a document as the Constitution is, it is nothing but a scrap of paper if citizens are not willing to defend it."
Robert Carter will be remembered for the central role he played in the fight to fulfill the 14th Amendment’s promise of equal protection of the law, particularly in Brown v. Board of Education. While often “toiling behind the scenes” and under the shadow of future Supreme Court Justice Thurgood Marshall at the NAACP Legal Defense and Education Fund, Carter litigated cases in courtrooms across the country to reach the landmark 1954 decision striking down the “separate but equal” doctrine. Appointed to the federal bench in 1972, Judge Carter heeded the words of the 14th Amendment and civil rights laws in forcing the New York City Police Department to reform discriminatory hiring practices that had prevented black and Latino applicants from joining the force.
Often missed in the eulogies for Judge Carter is the profound impact of one case he brought to the Supreme Court in the early 1960s: NAACP v. Button. Following Brown, Southern legislators sought to block the decision by threatening the lawyers who were trying to enforce it. Long established legal ethics rules barred third parties from covering the legal costs of litigation and barred lawyers from seeking out clients to pursue cases, but the NAACP relied upon such practices in seeking to vindicate Constitutional rights. Robert Carter, by then General Counsel of the NAACP zealously challenged the rules in Virginia state courts, against the advice of Thurgood Marshall who wanted to take a more cautious approach.
When the case reached the Supreme Court, Carter boldly asserted a Constitutional right, under the First Amendment, to solicit clients and have third parties (such as foundations) pay litigation costs in cases seeking to protect the public interest. The Court agreed. “In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state, and local, for members of the Negro community in this country. It is thus a form of political expression.”
Carter’s bold action assured that lawyers throughout the country could do what was necessary to enforce the Brown decision. But of even broader impact, Carter’s advocacy made it possible for public interest lawyers on a wide range of issues to work with clients and communities in upholding the tenets of the Constitution and other laws that assure Americans can live in a healthy, fair, and just nation. He rightly saw the courts as one of the essential forums for assuring the enforcement of rights and justice and assured access to justice for those to whom justice had too long been denied.
Without the commitments and actions of heroes like Gordon Hirabayashi and Robert Carter, our nation would not be nearly as far along the path to achieving liberty and justice for all. Their fight for freedom made us all more free, more American.