Inferences of loyalty from ethnic background

[Sanford Levinson]

Tobias Wolff writes:

>The suggestion made by Sandy and Eugene that American abuse of
>Japanese-Americans in the past could serve to justify their subsequent
>internment is abhorrent.

I don't want to be interpreted as "justifying" the internment.  I'd like to
think that I would have dissented (probably joining Jackson's typically
eloquent opinion, though there is the problem in figuring out exactly what
he is saying as to what the Court should do), but that doesn't answer the
question whether the majority opinions are "simply indefensible."

I do agree with Eugene that the internment was not "irrational," and that
it is simply too facile to dismiss 9066 as crazy.  As Eugene says, what
makes "stricter than mere rationality" interesting as a test is precisely
that we concede that a non-lunatic could believe that there is a connection
between some legitimate end E and some (minimally) efficacious means M, but
then go on immediately to say that the E-M connection isn't "close enough"
or could achieved at a lower cost to relevant constitutional values (other
E's) and the like.

sandy