Why we are here

[Darren Hutchinson]

Pardon me -- replace "justify" with "rationalize."

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 Darren Hutchinson
Sent: Friday, September 14, 2001 2:00 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Why we are here


"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")."

The law focused on ALL Japanese-Americans -- even those who were born here.
Under the 14th Amendment, persons of Japanese descent who were born in the
US were US citizens; the exclusion laws focused on naturalization policy.
Second generation Japanese Americans were interned; children were interned.
There were no distinctions made.  The policy was disturbingly racist and
overinclusive.  Furthermore, I find it equally disturbing to justify racist
internment on the existence of an already racist naturalization statute that
denied naturalization to Japanese nationals.  It continues the "logic" of:
we can engage in racism against Japanese Americans because we have done so
in the past.


"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."

Still, it cannot justify internment, and I do not think the policy was
"rational."

I don't know if I have any real disagreement with Professor Hutchinson
here.  I have no desire to shield or legitimate white racism.

But this is what Korematsu did.  The search for "rationality" in this
context comes dangerously close to doing the same -- regardless of the
stated "intent" of the seeker.  But then again, I have never been a fan of
the "discriminatory intent" rule.