Inferences of loyalty from ethnic background

[Volokh, Eugene]

                I of course entirely agree with Prof. Hutchinson that the
question in Korematsu wasn't just whether it was rational to fear some
greater likelihood of disloyalty on the part of the Japanese, but rather
whether this would justify race discrimination.  As I wrote in my original
post, "The question has to be when the government is barred from acting on
[inferences of disloyalty] (at least in certain ways) *even though* they are
rational"; and, as I wrote in my follow-up post, "I think we honor equal
protection and free speech more when we stress that the government may not
abridge those [rights] *even when* it has a perfectly instrumentally sound
reason to do so."

                The wholesale internment of Japanese-Americans was indeed
unjustified; it's an interesting question whether less grave forms of
discrimination (for instance, heightened investigation and questioning of
Japanese-Americans, based partly on their national origin) are justified,
though there's a powerful case that even these forms are impermissible.  But
my point was that the wrongfulness of the internment must rest not on the
instrumental irrationality of the internment, but rather on the notion that
the antidiscrimination norm is so strong that "the government is barred from
acting on [rational race-based] inferences *even though* they are rational."

                Eugene


Darren Hutchinson writes:

> -----Original Message-----
> From: Darren Hutchinson [SMTP:dhutchin at POST.CIS.SMU.EDU]
> Sent: Thursday, September 13, 2001 8:38 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Inferences of loyalty from ethnic background
>
> The question in Korematsu was not whether SOME Japanese Americans MIGHT be
> loyal to Japan, but rather whether this supposition could justify blanket
> racism -- the imprisonment of an entire class of people based on this
> racial
> assumption alone.  Also, the supposed "rationality" of this decision
> (which
> I have disputed) does not suffice under "strict scrutiny."  Furthermore,
> even if Japanese or Jewish Americans favored Japan or Israel in a
> particular
> conflict, this would do very little, if anything, to prove that these
> individuals would engage in acts of sabotage or espionage (thus warranting
> their imprisonment).  Remember, the government interned ALL Japanese
> Americans on the fabricated ground that they were a threat to America.  A
> (hypothetical) "political" position does not translate into a will to
> interfere with a war effort -- unless it is combined with racial
> prejudice.
>
>
>
        -----Original Message-----
        From:   Darren Hutchinson [SMTP:dhutchin at POST.CIS.SMU.EDU]
        Sent:   Thursday, September 13, 2001 8:52 PM
        To:     CONLAWPROF at listserv.ucla.edu
        Subject:        Re: Inferences of loyalty from ethnic background

         "I did not say, and neither I think did Sandy say, that American
abuse
        of Japanese-Americans could *morally or legally justify* their
internment.
        Rather, our points had to do with the descriptive claim -- is it
rational to
        infer that there might have been more disloyalty on average among
        Japanese-Americans than among others? -- and not the normative one."

        I will not engage in the fruitless enterprise of challenging your
        representation of your position, but the thread was clearly
considering the
        legitimacy -- from a legal perspective -- of internment.  Tobias
Wolff
        characterized internment as shameful; Sanford Levinson said it was
indeed
        shameful, but perhaps not unconstitutional; Sandy then proceeded to
offer a
        "rational" justification for questioning Japanese American loyalty
        (apparently offering a "complicated" constitutioanl analysis --
rather than
        the "easy" analysis that "liberals" embrace).  The conversation had
shifted
        from moral shame to legal consideration (I believe).


> 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 Eugene Volokh
> Sent: Thursday, September 13, 2001 6:47 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Inferences of loyalty from ethnic background
>
>
>         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).
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