A medal for Mitsuye Endo

Who are the heroes of our Constitution? We think, perhaps, first of the framers of that document, men like James Madison and Alexander Hamilton. Then there are the men and women of the armed services, who risked and often sacrificed their lives to ensure that our experiment in self-governance could continue. Last might come the judges, who from the short and spare document the framers wrote have built the edifice of constitutional democracy we inhabit.

But this telling leaves out several categories of people. It omits the activists, people like Martin Luther King, who sought to hold the nation to its constitutional commitments. Even more, it leaves out the litigants, the individuals whose cases gave judges the opportunity to interpret the Constitution and the lawyers who pressed their arguments. These people too fought for our freedoms; they too defended our rights.

{mosads}Why don’t we give constitutional litigants the same kind of honor as framers, soldiers, or judges? One reason is that sometimes they’re pretty bad people. Unsavory individuals stand behind some of our great constitutional decisions. Ernesto Miranda, whose case gave us the Miranda warning, was a kidnapper and a rapist. Clarence Earl Gideon, whose case extended the right to counsel, was a drifter and a petty crook. That doesn’t mean they shouldn’t have rights. Their rights are our rights; the guilty, I like to say, are the first line of defense for the innocent. But it explains why we don’t celebrate them as heroes. Many constitutional litigants are guilty people who wanted only to escape the consequences of their misdeeds.

But there are also some people who go to court for the Constitution, not for themselves: people like Mitsuye Endo. Endo was born in California in 1921. When World War Two broke out, she was working for the California Department of Motor Vehicles. As anti-Japanese sentiment increased, she was first fired from that job and then—like over 100,000 other Japanese-Americans, mostly birthright citizens—sent to a detention camp in the interior of the country. Lawyers seeking to challenge the detention identified her as a good test plaintiff: she was Christian and indisputably loyal. Her brother was serving in the U.S. Army, she had never been to Japan, and she couldn’t even speak Japanese.

Endo agreed to be the face of the challenge, and in 1942, lawyers filed suit on her behalf. The government, realizing it could not justify her detention, offered to release her if she’d drop the suit. She refused and remained confined for years as her case progressed. In 1944, it reached the Supreme Court and she won, 9-0. Americans could not be detained, the Court said, without some individualized reason to doubt their loyalty.

The Endo decision was not the complete victory she and her supporters hoped for. The Supreme Court did not say that the detention was unconstitutional. Instead, in an effort to avoid casting blame on the government, the Court ruled that the whole detention program was never authorized by Congress and the president—an absurd claim, but one that allowed it to duck the real issue. Still, Endo is the best of the Supreme Court decisions about the rights of Japanese-Americans. And Mitsuye Endo herself is a hero, who kept fighting for the freedom of all Americans even when she was offered her own freedom if she would stop.

Recently, federal officials from California and Hawaii have started a movement to grant her the Presidential Medal of Freedom. (Sadly, it would be come posthumously; Endo died in 2006). The medal recognizes “An especially meritorious contribution to the security or national interests of the United States”. It is hard to imagine what could be said in opposition to the award.

But as it turns out, imagination is not needed: the opposition is visible all around us. Lawyers who argue that the president cannot detain Americans indefinitely without charges “aren’t interested in justice,” the Wall Street Journal wrote in an editorial in 2012. They are “practicing ‘lawfare,’” an effort to use the courts to thwart government policy. In 2005, the Defense Department’s National Security Strategy listed “judicial processes” (along with “international fora” and “terrorism”) as elements of a “strategy of the weak” deployed to challenge “our strength as a nation state.” Most recently, respected Democrat Wesley Clark (a Medal of Freedom recipient himself) called for detention camps for disloyal Americans.

In times like these, it is more important than ever that we remember the mistakes of the past and honor those who fought against them at the time. One president took Mitsuye Endo’s freedom, and that of thousands of other Americans. For another to give her the Medal of Freedom would be an appropriate symbolic recompense for her, and a helpful reminder to us all.

Roosevelt is a professor of law at the University of Pennsylvania Law School and the author of the novel Allegiance, about the Japanese-American internment. He is the great-great-grandson of Theodore Roosevelt and a distant cousin of Franklin D. Roosevelt, the “One president” cited in the last paragraph.


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