Why we are here
SLevinson at MAIL.LAW.UTEXAS.EDU
Fri Sep 14 13:08:07 PDT 2001
Darren Hutchinson writes:
>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.
To focus on "Japanese Americans" like Fred Korematsu suggests that it's
legitimate to be more war of the majority of those who were put in
concentration camps, who were Japanese nationals (who could not, under
American law, become "Japanese-Americans").
>In addition, the distinction you make in your textbook (anti-Asian racism
>begets anti-American sentiment justifying internment) cannot legitimize
We aren't trying to "legitimize internment." We are, as Eugene has
emphasized, trying to explore the difference between "rationality" and
"more-than-minimum rationality" analysis.
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?).
The answer is yes, according to recent Supreme Court teaching (which
"protestants" like myself may or may nor want to accept) about what it
takes to justify legislation in ordinary instances. I don't have the exact
language easily at hand, but I believe that the Court, in the Kentucky
mental-health case, emphasized that no actual evidence be presented to back
up a surmise that is not insane on its face.
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.
I don't know if I have any real disagreement with Professor Hutchinson
here. I have no desire to shield or legitimate white racism. My interest
is in the social dynamics of white (and other forms of) racism, which, not
surprisingly, is that stigmatized groups may develop hostility toward their
oppressors. Consider, e.g., Melville's great story, "Benito Cereno" or,
for that matter, the social meaning of the Denmark Vesey and Nat Turner
rebellions. Was it "irrational" for white slaveowners, for whom I have no
brief whatsoever, to believe that slaves had to be kept under tight control
lest they (the slaveowners) be murdered by rebellious slaves? (One way of
addressing this question, incidentally, is by a close analysis of Elkison
v. Delisienne, yet another case found only in our casebook, and the
constitutional legitimacy of the Negro Seaman's Act passed by South
Carolina in 1822 in the wake of the Denmark Vesey rebellion.)
>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
Knowing of Robert E. Lee, might it have been rational in the future for the
United States simply to place under arrest any generals (with skills
learned at West Point) who were born in a state threatening secession until
the general in question gave strong and plausible assurances of loyalty?
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