Inferences of loyalty from ethnic background

[Tobias Barrington Wolff]

There is a difference between bearing feelings of loyalty, or affection, or
sympathy, to one's affiliative groups, and being a disloyal American, or a
traitor, or a presumptive criminal.  When Americans argue that ties to
one's roots indicate a lack of loyalty to America, they do so almost
exclusively with reference to people of non-European background.  That is
racism.

The suggestion made by Sandy and Eugene that American abuse of
Japanese-Americans in the past could serve to justify their subsequent
internment is abhorrent.  Does evil always serve to justify evil, or does
that particular travesty only obtain in times of war?  So, we can segregate
black soldiers, or exclude them entirely, because we subjected their
ancestors to three centuries of institutionalized bondage and, hence, can
conclude that they will feel justified resentment?  Indeed, we can round up
all African-American civilians today, right?  Algeria is one of the
countries that may have harbored Bin Laden.  That's Africa -- close enough
to be rational, right?

Or is it just Japanese and Arabs who can't seem to control themselves when
they face a challenge?

At 07:47 PM 09/13/2001 -0400, you wrote:
>         I would go even further than Sandy does in his first sentence (though
>probably no further than he does as to Robert E. Lee).  Even if the U.S.
>treats an ethnic group just fine, it is quite rational to believe that many
>members of the group retain loyalties to its ancestral homeland.
>
>         Just to give an example close to my home:  Many Jews have long
> voted for
>candidates partly based on whether "Is he good for Israel?" -- and not just
>because they think that what's good for Israel is good for America.  That's
>just a fact.  If somehow the U.S. and Israel went to war (unlikely, I
>realize), I would suspect that many American Jews would feel tremendous
>conflict -- and that some of them (of course I don't know how many) will
>resolve the conflict in favor of Israel rather than America.  The same, I
>imagine, is true of members of various other groups.  *Of course* it was
>rational for Americans to believe that Japanese-Americans would be more
>likely than non-Japanese-Americans to have some loyalty to Japan.  (How
>rational it was to draw a greater inference as to Japanese-Americans than as
>to German-Americans or Italian-Americans is a harder call, but I suspect
>that there were quite plausible theories, perhaps such as the one with which
>Sandy opened, for taking this view.)
>
>         There is thus nothing irrational about drawing these inferences.  The
>question has to be when the government is barred from acting on these
>inferences (at least in certain ways) *even though* they are rational.
>
>         Eugene
>
>Sandy Levinson writes:
>
> > > As we say in our casebook, the deep
> > > paradox of
> > > Korematsu is that what (arguably) made it rational to be suspicious of
> > > resident-alien Japanese (Fred Korematsu, who was in fact an American
> > > national, is, perhaps, distinguishable) is precisely that the
> > > United States
> > > had indeed carried out a consistent policy of anti-Asian prejudice,
> > > including making all Asians (and not only Japanese nationals) ineligible
> > > for citizenship.  Is it irrational to believe, when push came to shove,
> > > that justified resentment against the United States for such
> > > racist bigotry
> > > might have led Japanese resident aliens to manifest ultimate
> > > loyalty to the
> > > homeland?  That there was no a single instance of that
> > happening I regard
> > > as truly remarkable, but, of course, this is ex post knowledge.
> >  As I told
> > > my class, Robert E. Lee, who had taken an oath of loyalty to the United
> > > States and who was the leading general of the United States
> > army, betrayed
> > > his oath and his loyalties by deciding that his loyalties to
> > Virginia took
> > > precedence.  If that was a "rational" decision for Robert E.
> > Lee, then why
> > > might it not be rational for a Japanese national, treated far,
> > > far worse by
> > > the United States of America than Robert E. Lee ever was, to collaborate
> > > with the enemies of the United States (as Robert E. Lee most
> > > certainly did).


* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981