One of History's Greatest Lawyers: Wayne Collins

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The Mighty Team

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October 2, 2023

Published On

October 2, 2023

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Originally Published December 18, 2014

This much we're all familiar with: in 1942, Fred Korematsu was arrested and convicted after refusing to relocate to an internment camp. He challenged his arrest on constitutional grounds; two years later, Korematsu v United States stood before the Supreme Court.

Korematsu brought two attorneys from the American Civil Liberties Union to represent him. One was Wayne Collins, who had helped to found the ACLU's Northern California branch in 1934. Though the ACLU board initially voted against representing Korematsu, Collins persuaded his colleagues otherwise and ultimately argued the case before SCOTUS.

For Collins, Korematsu's arrest - and Japanese internment in general - was a clear injustice. His argument to the Court dripped with lofty polemic:

Who is this DeWitt [the general in charge of relocation] to say who is and who is not an American and who shall and who shall not enjoy the rights of citizenship?...While he was toying with the notion of a military dictatorship over them and trifling with its dangerous paraphernalia, did he think he was acting the part of a savior? A messianic delusion is a dangerous thing in a military mind... Hitler has it and has brought Germany to ruin. General DeWitt let Terror out to plague those citizens but closed the lid on the Pandora box and left Hope to smother. It is your duty to raise the lid and revive Hope for these, our people, who have suffered at the hands of one of our servants. Do this as speedily as the law commands you. History will not forget your opinion herein.

Collins' language - fiery and eloquent - drew powerful links between internment and concentration camps. But whereas his argument appealed to the historical longview, the US's arguments and the Court's opinion were more straightforward. They adhered to the letter of the law rather than broader issues of morality - though the dissenting opinion did refer to internment as "the ugly abyss of racism." Here's Justice Hugo Black's majority opinion:

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, and, finally, because Congress, reposing its confidence in this time of war in our military leaders - as inevitably it must - determined that they should have the power to do just this.

Korematsu lost; Collins failed. The Court was offended by Collins' comparisons to Nazi Germany, and rejected his lofty rhetoric. Clearly, justice required a different approach.

Following Korematsu, Collins embarked on a crusade against Japanese-American and Japanese-Latin American internment. From 1944-45, when about 3000 Japanese Americans were faced deportation for renouncing their American citizenship, he brought four separate mass actions to the U.S. District Court of San Francisco. In each case he demonstrated that plaintiffs had been coerced by pro-Japanese gangs - which the military allowed to operated in some internment camps - to renounce their citizenship.

The District Court sided with Collins, but the US appealed. The Ninth Circuit agreed that deportation seemed to be unlawful, but they believed each case should be evaluated individually: each plaintiff had to testify that they had been coerced.

So, from 1951 to 1968, Collins processed thousands of affidavits and successfully restored citizenship to 4,987 Americans. In this same period, he prevented the deportation of hundreds of Japanese Latin Americans who had been taken from Peru, as prisoners of war, to American internment camps.

How is it that that Collins failed in Korematsu but succeeded in these immensely more complex deportation cases? It seems he took the cue from Justice Black: law does not move forward on the back of rhetoric and moral outrage. It progresses slowly and painstakingly, in paperwork and technicalities. The sheer injustice of internment is clear to us now, as it was clear to Collins and many of his contemporaries; but he was mired in an unjust system, and had to work from the inside out to make its victims whole again.

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