Why we are here

[Darren Hutchinson]

Treating Japanese American internment as "racial" or "national origin"
discrimination does not change the nature of the constitutional infirmity.
First, both racial and national origin discrimination warrant "strict
scrutiny"; thus, some questioning of the governmental rationale is
justified.  Second, the attempt to sever race and national origin is not
always a clean process.  Asian Americans have been "racially" constructed as
non-white (as the "prerequisite" citizenship cases demonstrate).
Furthermore, the "racial" status of Asian Americans is typically depicted as
"foreign" (and non-white), blending racial and national animosities.  The
expectation that Japanese Americans were a "foreign" threat reinforced and
relied upon this racist stereotype; yet, this presumption was the heart of
the government's case.

In addition, the distinction you make in your textbook (anti-Asian racism
begets anti-American sentiment justifying internment) cannot legitimize
internment.  First, as I pointed out in an earlier post, the government has
never offered any evidence of Japanese-American espionage; this is simply a
hypothetical that lacks any basis in reality (does such speculation even
pass rational basis review?).  Second, this rationale would punish Asian
Americans for their "rational" psychological reaction to white racism but
would leave white racism untouched.  The argument can be restated as
follows: because whites have historically engaged in racial discrimination
toward Asian Americans, whites can continue to subordinate Asian Americans
(by interning them) because Asian Americans might become upset with this
behavior.  Only Asian American responses to racism are restrained under this
argument; white racism is shielded and legitimated.

Robert E. Lee's experience does not move me.  He STATED his loyalty to the
confederacy; Japanese-Americans were never given a choice -- based solely on
their race.  This is bald racial prejudice, which I believe is
unconstitutional.

Darren Lenard Hutchinson
Assistant Professor
Southern Methodist University School of Law
P.O. Box 750116
Dallas, TX 75275-0116
Phone: (214) 768-4639
Fax: (214) 768-3142
Bio: http://www.law.smu.edu/lawschool/faculty/hutchinson.htm

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Sanford Levinson
Sent: Thursday, September 13, 2001 6:20 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Why we are here


Glenn Reynolds writes:

Suspending it *only* for Americans of Japanese
>descent would, I think, raise the same issues of racial
>discrimination that Korematsu did anyway.

I think it is a category mistake to view Korematsu as a "simple" case of
"racial discrimination."  It is a case of national origin discrimination,
and that is no small difference, especially when the nation involved is at
war with the United States.  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).

Have I successfully offended everybody on this list?

sandy