Why we are here

[Elizabeth Dale]

At 06:20 PM 9/13/01 -0500, you wrote:

>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.

Even if one accepts this distinction, and the related postings to the list
on the issues of reasonableness of such an action in various contexts, a
more concrete problem remains. This discussion of Korematsu arose in the
particular context of recent events and their possible implications. And
that context demonstrates the danger of thinking of this in terms of
Korematsu, particularly if one does so in an effort to suggest that it
might be rational (even if not, perhaps, constitutional) to target
government inquiry toward certain people because of their ancestry.

We may be at war, literally, we doubtless are, figuratively. But we are not
at war with a nation. We cannot identify the people who were behind the
events of Tuesday with any one national group. (The history of shifting
blame during the Oklahoma bombing suggests that we should perhaps even be
cautious about assuming that we know, even if we cannot prove, who is to
behind this.)  As such, Korematsu is not only bad precedent, it is
dangerous precedent, especially given the more generous views of that case
being offered (And I am somewhat startled by the degree that the most
generous views offered have tended to ignore the sticky issue of people of
Japanese descent who were also American citizens being interned. If we'd
been as quick to round up citizens who were suspected of sympathies to the
Southern cause at the start of the Civil War -- a group whose number was
pretty high -- Taney might not have been in a position to condemn some of
Lincoln's actions, and one imagines McClellan would have had a very
different career).

If, in the aftermath of this past Tuesday, we begin blanket arrests of Arab
nationals in the United States, profiling of Arab-Americans, and acting on
suspicions about people because they are Muslims, that would not be
national origin discrimination, since it lumps people from many nations
together into one huge group. It would not be an understandable fear of
people whose loyalty to a nation which is a known enemy is sufficiently
plausible that they can be rationally seen as a credible threat, since as
yet there is no single nation that can be identified as a known enemy. If
we were to do these things, or even some of them, or even contemplate them,
it would be, plain and simple, racial and religious discrimination. It
would be, plain and simple, profiling. And as such it goes too far, even
under the extraordinary circumstances in which we find ourselves.

Again, the contrast to Oklahoma City is important. When we finally figured
out who was to blame, I recall no calls for the internment (or
precautionary arrest) of embittered white guys who felt they had no future
in a country where established ideas of masculinity were under attack,
their values where disfavored, and the federal government had become Big
Brother. I assumed then, and I assume now, that those calls did not go out
because most people understood that most white guys, even most white guys
with limited economic options and failed hopes, were not cut from the same
cloth as the Oklahoma City bombers and were not disloyal and were not
domestic terrorists. And I think that was the correct call. It would be
nice if we demonstrated, finally, we were capable of achieving a similarly
nuanced perspective with respect to other groups.

If we can't be more nuanced, we better start teaching history and
constitutional law a lot differently then we do now, since we better start
making sure our students understand that we are no better than all those
people of the past whose slave holding and other repulsive practices and
assumptions we now so easily condemn. And if we can't be more nuanced, we
maybe better start thinking of the question "Why are we here?" not in terms
of why are we teaching when such a tragedy has occurred, but in terms of
what values we feel have been threatened by this attack. If when things get
tough we can write whole groups of people out of the polity and deprive
them of rights, based simply on their race or religion, then the values I
thought we aspired to seem not to be particularly central.  Is the final
lesson of all of this that the grand experiment outlined in the Declaration
of Independence has been conclusively proved to be a failure, or
unworkable, and so it is time to trash it, particularly since those ideals
might be dangerous? Or is it the point one made by many in South Carolina
during the antebellum period -- that really no one ever really believed
that nonsense about all men being created equal and having unalienable
rights, it was just a marketing ploy to rally people against George III,
and the reality is that the country was founded on theories of inequality
and classes of citizenship?














Elizabeth Dale, Assistant Professor
US Legal History, Department of History

Adjunct Faculty, Levin College of Law

University of Florida
PO Box 117320
Gainesville FL 32611

edale at history.ufl.edu
http://plaza.ufl.edu/edale
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