Inferences of loyalty from ethnic background

[Parry, John]

What a strange discussion this is.  Were I trained in psychology, I might
have meaningful things to say about what this discussion means about our
fears and thoughts in a moment of crisis.  But I am not a psychologist; nor
am I a sociologist.  So I really can't evaluate on an empirical level any of
the arguments.  All I can say is that they are reasonable, in the sense that
they use defensible assumptions to reach possible conclusions.  And this
discussion leads me, once again, to be deeply suspicious of reason.  Stuart
Hampshire once wrote, "If emancipated, reason (our powers of argument) runs
free with its calculations without the constraints of natural feelings of
sympathy; it will construct theologies and theories of religious and racial
superiority that have for centuries engendered religious and tribal and
national wars.  Humanity is only restored to itself when such theories are
undermined and finally put aside."

I should stress that I am not accusing anyone on this list of falling victim
to such unconstrained reasoning; indeed, I think the Hampshire quotation
underscores most, perhaps all, of the postings.  Reason is not justification
and it may not even be a rational basis -- unless of course list members
wish to assert that a correctly decided Korematsu must come out in favor of
internment under a rational basis test, but surely we need not have that
discussion, too.  As Hampshire also suggests, "reason is, and ought always
to be, the slave of passions" -- in the sense that it depends on our
morality and values.

John Parry

-----Original Message-----
From: Eugene Volokh [mailto:volokh at mail.law.ucla.edu]
Sent: Friday, September 14, 2001 11:18 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Inferences of loyalty from ethnic background


    Prof. Lipkin is surely correct that it is dangerous -- and virtually
always unconstitutional -- for the government to act based on inferences
from a person's ethnicity, even in wartime.

    But it seems to me a pretty observable reality that people of ethnicity
X are more likely to support nation X than people of other ethnicities --
and therefore if forced to choose between loyalty to X and loyalty to the
U.S. (as is likely if the U.S. and X are at war), they are more likely than
non-Xs to be disloyal to the U.S.  There are some exceptions, for instance
X-Americans who were expelled by X from the country, or X-Americans whose
families have been in the U.S. for very many generations.  But as a general
matter, yes, I would bet that German-Americans of the first few generations
were more likely to support Germany than non-German-Americans.  Same for
Japanese-Americans.  Same for Jews vis-a-vis Israel.

    The one thing that the 20th century has taught us, if we needed the
teaching, is that ethnic loyalties are tremendously important for many (not
all, but many) people.  We see it in Yugoslavia; we see it in Russia; we see
it in the Middle East; we've seen it in the U.S.  I cite again the
experience of my own group, American Jews:  If you knew nothing more about a
random person in, say, 1967 than that he was Jewish, do we really think that
the probability that he supported Israel was identical to the probability
that a random non-Jew would?  And while I realize that support for one's
country of origin (or of ethnic affiliation) does not *necessarily*
translate into disloyalty to the U.S., even if the U.S. and the country are
at war, it certainly has a "tendency in reason" to do so.  Ask yourself:  If
the U.S. went to war against Israel (especially in an earlier era, when
support for Israel among American Jews was even higher), which would be more
probable -- that a non-Jew would side with the Israelis, even to the point
of betraying the U.S., or that a Jew would?  I stress again that I think
neither event is *highly likely*, and that I don't think that this justifies
interment of us Jews, even in the case of a U.S.-Israel war.  But can those
on the list who are familiar with the American Jewish community really say
that those two events (a non-Jew being disloyal to the U.S. when it is
fighting Israel, and a Jew being disloyal to the U.S. under the same
circumstances) are equally probable?

    Mark Graber was absolutely right:  The constitutional question isn't
whether the assumption is rational, but whether it's permissible.  It is
eminently rational to assume that men are more likely to commit violent
crime than women, but it doesn't follow that the law should act on this
assumption.  Likewise with assumptions related to disloyalty by an ethnic
group.  But our moral outrage at the impropriety of discrimination shouldn't
lead us to deny facts that seem to me at least to be undeniable.

    Eugene

 -----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Robert Justin Lipkin
Sent: Friday, September 14, 2001 4:19 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Inferences of loyalty from ethnic background



I do not see how without concrete action such as contributions to
associations, membership in political organizations, or voting (as in
Eugene's example), it is rational to infer that an individual's ancestry
makes him or her more likely to be disloyal than those of a different
ancestry even in time of war.  Indeed, often Americans of X-ancestry are
more inclined to be flag-waivers, indeed, to be genuine patriots than non-X
Americans. It may be rational to infer without any additional evidence that
a citizen of San Francisco is more likely to support the Giants than a Los
Angelian.  But I think it extremely dangerous to transpose this ordinary
rule of inference to cases of race and national origin even in times of war.
Especially in times of war, in my view, we need to be more circumspect in
the use of ordinary rules of evidence before we impugn someone's loyalty
even hypoth! etically or abstractly.

Bobby Lipkin
Widener University School of Law
Delaware