Inferences of loyalty from ethnic background

[Sanford Levinson]

Hank Chambers writes:

>Even if it might be rational to believe that those of Japanese ancestry as a
>whole were less loyal to the U.S. than those not of Japanese ancestry, and I
>do not believe there is evidence to support the statement, why does that
>necessarily mean that it is then rational to put the entire group of people
>in internment camps?  Would believeing the above then mean that it would be
>rational to do almost anything to that group of people?  I am not asking
>about constitutionality, just pure rationality.
>
I agree that it is difficult to find even minimum rationality in the
internment.  (I also agree with David Bernstein that a felt duty to
compensate (at the time) might have led to altogether better policy.)  One
might note, as a technical matter, that the majority in Korematsu insisted
that it was not deciding on the constitutionality of the concentration
camps, but, rather, "only" on the issue before it, which was the legitimacy
of arresting Korematsu for failing to register (for relocation to the
camp).  One of the difficulties of getting a handle on the decision is that
there are so many "facts of the case" that it's hard to figure out, at all
times, exactly what one wishes to condemn or, at least as a devil's
advocate, defend (on constituitonal grounds).  One begins with the curfew
issue, examined in Hirabiyashi (subdividing this into Japanese nationals
and Japanese-Americans), goes on to the issue of registration, goes beyond
that to the issue of exclusion from territory, goes beyond that to forced
resettlement in concentration camps, and links with that the condition of
the camps, which David Bernstein properly brings up.  One can then imagine
a spectrum, beginning with constitutional opposition even to the curfew,
insofar as it selected out Japanese nationals and Japanese-Americans for
special treatment, to constitutional toleration of forced resettlement into
miserable facilities.  Unlike the majority in Korematsu, there is no reason
at all to believe that accepting the constitutional legitimacy of the
curfew in Hiribayashi effectively settled the constitutionality of
everything else down the pike.  But all of this is to try to apply standard
norms of legal analysis to a truly terrible situation, and, as John Parry
reminds us, there may be something strange, even pathological, about this.
That may, indeed, be the particular pathology to which lawyers are most
subject to, the belief that everything can be analyzed by reference to a
detached, passion-less reason.  But, of course, this possibility should be
brought to the attention of our students, as we make them fully aware of
what is involved in taking on the standard-form persona of "thinking like a
lawyer."

sandy