"Ridicule" and "torturing the words"

[Eugene Volokh]

        Well, I guess all I can do is return to the text of the Gonzales comments:

        "ALBERTO GONZALES: Well, none of these decisions have been based on race or
ethnicity, Jim, I can reassure the American people and our allies around the
world that that has not been the basis for any of the decisions made in this
administration. . . .  [T]he decisions were based primarily on where people
came from, the country of origin -- their age range, and things of that
nature -- not based upon race or ethnicity or religion."

        My interpretation:  Gonzales is saying that the classifications here were
based on the country from which the detainees (mostly aliens) personally
"came from" -- their "country of origin" in the sense of the country in
which they themselves lived.  He is specifically disclaiming (twice) that
the classifications were based on "ethnicity."  Therefore, he's suggesting
that the classifications were based on a category that likely is *not*
treated the same way as race (citizenship or possibly prior residence of an
alien) rather than on a category that *is* treated the same way (ethnicity,
also sometimes called "national origin" in the sense of origin of one's
ancestors).

        The other interpretation:  Gonzales is "implying that discrimination based
on national origin was less problematic that discrimination based on race,"
something as to which even "undergraduate students in con law know better
than that!"  I presume that this interpretation asserts that Gonzales is
referring to discrimination based on national origin in the sense of
discirmination based on the origins of one's ancestors, i.e., ethnicity.

        All I can say is that it seems to me that the first interpretation is much
more consistent with the text, with its double denial that there's any
ethnic discrimination going on, and with its reference to where the
detainees (not their ancestors) came from.  I actually do think that we
ought to be charitable in the sense of assuming that when a knowledgeable
lawyer makes a statement that has two possible meanings, one of which is
clearly legally wrong, he probably means the more correct one.  But Gonzales
doesn't need such interpretive charity; I think all he needs is for us to
look at what he actually said.

        Eugene


> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Judith Baer
> Sent: Thursday, November 29, 2001 1:27 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: "Ridicule"
>
>
> Well. . .let's see.
>
> EV:I'm curious why there should be any "ridicule" of Gonzales here.  He
> certainly didn't say gender; whether or not we suspect that
> gender profiling
> is going on, his statement is certainly not opening himself up to
> "ridicule"
> on this score.
>
> I agree.  My comment wasn't about gender.
>
> EV: Nor did he say "national origin."  Those words, according to the
> transscript, never came out of his mouth.  And I don't quite see
> how we can
> say, as Lynne does, that "'country of origin' was meant in terms of
> nationality, but Gonzales could argue he meant 'country from which they
> migrated', which might be different from nationality or ethnicity."
>
> Yes, it might be, but I think this interpretation is torturing the words,
> bending over backward to find an innocuous interpretation.  We
> are under no
> obligation to interpret his words charitably.
>
> EV: So how exactly did Gonzales "open himself up to so much ridicule," as
> opposed to just opening himself up to be misquoted by people who misheard?
>
> Because he implied that discrimination based on national origin was less
> problematic that discrimination based on race.  My undergraduate
> students in
> con law know better than that!
>
> Judy Baer
>