Abstract
Old Man. But there are some That do not care what's gone, what's left: The souls in Purgatory that come back To habitations and familiar spots. Boy. Your wits are out again. Old Man. Re-live Their transgressions, and that not once But many times; they know at last The consequences of those transgressions Whether upon others or upon themselves; Upon others, others may bring help, For when the consequence is at an end The dream must end; if upon themselves, There is no help but in themselves And in mercy of God. (1) I INTRODUCTION The accumulated texts that supply the working materials of constitutional law are not only written records of responses to problems of government organization and claims concerning the rights of individuals. They are also an archive, an accessible collective memory, means for readers (persons who choose to read later as well as writers in the process of writing) to re-experience controversies and their conclusions, to consider and to accept, reject, or revise explanations for conclusions, and to become, in the process, more or less participants (more or less complicit) in those controversies and conclusions. If constitutional law is therefore a version of purgatory and not hell, it may be because its readers and writers are able to imagine a terminus, an "end" to "[t]he consequences" of "those transgressions" in which they are implicated. Korematsu as Justice Black wrote it seems to have supposed a short stay indeed: whatever wrong this decision did would be undone in Ex Parte Endo only a few pages further in the United States Reports. (2) If Justice Black was wrong, if neither he nor his readers are as yet purged of Korematsu's "transgressions," if Endo is not "absolution" (Jerry Kang's freighted term), (3) it may be because "the consequence" of Korematsu for the persons who were forcibly evacuated into concentration camps could not be declared "at end" in 1944 and cannot even now. Perhaps Endo did not--could not--accomplish what Black seemed to have hoped it would. Perhaps "the consequence" fell also upon Justice Black himself and now falls upon his readers. Reading Endo always requires remembering Korematsu, just as reading Korematsu always sets the stage for reading Endo. There is no "end" (it would have seemed to Yeats). Korematsu and Endo are not, however, the only pertinent texts. (4) This Article begins by sketching something of the content of The Spoilage, one of two principal publications issued after an ambitious contemporary study of what its organizers called "Japanese American Evacuation and Resettlement," undertaken by University of California social scientists and funded by the Columbia, Giannini, and Rockefeller Foundations? The Spoilage is a complex and controversial record of the efforts of camp residents, chiefly at Tule Lake, to identify and put to use effective forms of political action notwithstanding the resistance of camp administrators, sometimes dramatic and sometimes confoundingly passive. (6) These political efforts conclude--in The Spoilage at least--with mass renunciation of American citizenship by thousands of Tule Lake residents after Endo issued and after announcement of the dosing of the camps. (7) The legal aftereffects of this renunciation and The Spoilage account of it soon became subjects of decisions by the United States Court of Appeals for the Ninth Circuit, in Acheson v. Murakami (8) and its implementing successor McGrath v. Abo. (9) In many ways remarkable if today largely forgotten, Murakami and Abo substantially blocked official enforcement of the Tule Lake renunciations. These decisions and their constitutional context are explored at some length in this Article--like Endo, along with Korematsu, confronting and testing readers and writers caught in constitutional purgatory. Chief Judge Denman's opinions in Murakami and Abo, it will become dear, may be grouped with Justice Douglas's effort in Endo and Judge Goodman's decision in Kuwabara (10) blocking draft resistance prosecutions of Japanese American internees. …