(“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level … they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?”
In 2015, the Supreme Court upheld Judge Daughtrey’s position.7
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Mythologies of Racism
FEAR, LOATHING, AND MYTH I: THE JAPANESE INTERNMENT AND MANIPULATED FEAR
IN THE UNITED STATES LEGAL system, mythologies based on race have been persistent and endemic. In early 1942, under an executive order signed by President Roosevelt, more than 120,000 Japanese Americans in the western part of the United States were rounded up and placed in prison camps.8 Almost two-thirds of those imprisoned were American citizens. The justification for this action was that some Japanese Americans might possibly help the Japanese war effort by such things as signaling submarines. In Korematsu v. United States, the six Supreme Court justices who voted to uphold the internment justified this mass incarceration as a wartime measure, adding:
The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.
Justice Frank Murphy, in dissent, called it what it was:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.
Justice Jackson, who was later to be a prosecutor at the Nuremberg trials, noted:
Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that he is not law-abiding and well disposed.
How could six smart, well-educated people subscribe to the mythologies that motivated the internment? They had seen the Nazi rise to power. Indeed, the majority opinion testily rejects a claim that the internment centers were “concentration camps.” Their law library—and some of their earlier decisions—contained many eloquent testaments to the way that racism and xenophobia can mislead decision-makers.
Mythologies are resilient. They do not easily yield to arguments based on generalities about fairness, tolerance, and justice. We advocates for victims of mythological thinking about racism, sexism, xenophobia, and political repression can do our job only if we truly, deeply see our clients and their concerns as they really are and not as we imagine them to be or, worse yet, as the state would have us see them. We insist that what the law “does” or is about to do must be justified by lawful, logical, relevant evidence, and that legal standards be precise and intelligible.
Once we see our clients as they are, we must confront and challenge the false picture that the state wants to paint. This can be a challenge because those who uphold the mythology have no compunction about hiding the truth. In the internment cases, Solicitor General Fahy, representing the government, suppressed two important pieces of evidence: one was an official intelligence report showing that mass internment was not necessary and that legitimate goals could be achieved by individually considering cases of alleged disloyalty. The other was a document casting doubt on claims that Japanese-Americans had aided the Japanese war effort. Based on racial stereotypes and false evidence, six justices accepted the idea that sinister motives lurked in the minds and hearts of countless Japanese Americans, and that the road from those hidden motives to wholesale sabotage was short and swift.
The mythologies that justify a leap from perceived danger to repression are with us always. We recall Auden’s words: “I smell blood and an era of prominent madmen.”
Here is a story that John Henry Faulk told. John Henry was a comic genius, a populist philosopher, and a worthy citizen. He had survived the blacklist.9 One evening in Austin, Texas, in the 1980s, he was on the dais with the director of the FBI. The director spoke of the great social dangers against which the power of government was protecting us. John Henry stood and (as I recall it) said:
Well, that was a fine speech. A lot of people don’t know that I myself was in law enforcement. I was a United States Marshal. I was ten years old. My territory was along the banks of Lake Austin, and I patrolled it with my deputy, Johnny Wilson. Now as it happens, the Faulk henhouse was in our territory, and we regularly patrolled it. One day, we went into the henhouse. There were no eggs in the nest boxes. So we thought maybe the hens had got up on the high shelf to lay. Johnny got up on tiptoe and ran his hand up on that shelf. And wouldn’t you know it, there was a chicken snake up there. Johnny screamed “Chicken snake!” and we turned to run. But the henhouse door had swung shut and latched, so we broke it down and escaped into the yard. The noise brought my mother running. “What are you boys doing?” “Mrs. Faulk,” Johnny cried, “there’s a chicken snake in there!” “Well, Johnny, don’t you know that a chicken snake can’t hurt you?” “Yes, ma’am,” Johnny said, “but it can scare you so much you’ll hurt yourself!”
FEAR, LOATHING, AND MYTH II: “SEPARATE BUT EQUAL” AND THE LAND WHERE SUPREME COURT JUSTICES DWELL
I have been reading with pleasure the work of Paul Beatty, whose novel The Sellout won the Man Booker Prize for 2016. The Sellout, and his earlier novel, The White Boy Shuffle, illuminate many mythologies about race. His anthology of humor, Hokum, is also a gem. I also like Charles Mackay’s 1841 book, Extraordinary Popular Delusions and the Madness of Crowds. Though the book deals with “popular” and not “governmental” delusions, it describes historic events that may serve as a warning for these times. The book’s epigraph speaks broadly of “delusions of the human spirit” (délires de l’esprit humain).
The Sellout deals with racial segregation in the schools, from Beatty’s challenging perspective. After reading it, I was impelled to revisit the course of judicial decision that led to Brown v. Board of Education in 1954.
Most people know about Plessy v. Ferguson.10 Homer Plessy bought a train ticket in Louisiana and took a seat in the “whites-only” car. He refused to move to the “colored” car. He was arrested and charged with violating a Louisiana statute, the Separate Car Act, which mandated racial segregation on railroads. The Supreme Court held, over Justice Harlan’s dissent, that racial separation was permissible in public accommodations, assuming that the accommodations for each race were substantially equal. Justice Brown, for the majority, wrote:
Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.
And this:
If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.… We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Thus, seven justices, each of whom had to know that since 1872 Southern
