Inferences of loyalty from ethnic background

[John Noble]

The problem I'm having with the rational basis analysis is that proceeds
from the assumption that the only constitutional value at stake is
substantive due process. Or am I mistaken? Doesn't it ignore individual
civil liberties guaranteed by the 1st, 4th and 5th Amendments, and most
obviously the prohibition on bills of attainder which seemingly is directed
to assuring procedural due process. Even before 1944, the Court had struck
down statutes that were premised on presumed disloyalty in Ex Parte Garland
and Cummings v. Missouri, and just two years after Korematsu, in U.S. v.
Lovett, the Court held that the bill of attainder proviso prohibits
legislative acts, "no
matter what their form, that apply either to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on
them without a judicial trial...." To use Eugene's example, it would surely
be "rational" to conclude that the "internment" of all unemployed males
between the ages of 15 and 45 living below some prescribed household income
would virtually eliminate violent crime. Indeed, the correlation is
demonstrable enough to plausibly defend the gender discrimination under
strict scrutiny, while the connection between Japanese ancestry and
disloyalty was never more than, at best, "rational" speculation. You could
even uphold it under Prof. Chambers' rational proportionality test if you
provided three square meals, job training, and cable TV in the "internment
camps." But surely the constitutional inquiry doesn't stop with the
judicial imprimatur of rational basis.

This thread prompted me to reexamine my assumptions about Korematsu, which
is always useful. But having re-read the decision for the first time in
twenty years, it remains my lodestar of craven constitutional adjudication.

John Noble

At 2:05 PM -0400 9/14/01, Eugene Volokh wrote:
>        Hank asks a very interesting and important question -- one that is
>often
>also asked in other rational basis contexts, such as those involving social
>and economic regulations.
>
>        Here is a very tentative thought:  We know one test for rationality of
>considering factor A (e.g., is this person an X-American?) as a proxy for
>making decision B (e.g., will this person be disloyal?) -- this is whether
>the presence of A makes the probability of B higher than the absence of A.
>Thus it's irrational to consider an astrological sign to decide whether
>someone is likely to be disloyal; but it's rational to consider gender to
>decide whether someone is likely to be a violent criminal (at least unless
>one knows other things that change the probabilities).  (A related test for
>rationality of considering factor A in making decision B, e.g., whether to
>intern someone:  Would the presence of factor A make it more likely that the
>goal of decision B will be effectively served?  In this instance, interning
>Japanese-Americans may have made it more likely that, if our goal was simply
>to incapacitate the potentially disloyal, the internment might in fact well
>serve the goal.)
>
>        Note that this definition may be hard to apply, because might
>dispute the
>probabilities.  But it is in theory a descriptive judgment, not a normative
>one -- it doesn't require us to ask whether, for instance, factor A is
>morally problematic (though it might help us decide whether factor A is
>morally problematic).
>
>        Hank suggests that something might be irrational in another way:
>Essentially, I take it, if it is disproportional -- if the harm to the
>people whose lose in this decision outweighs any marginal benefit from using
>race as a proxy here.  I understand the appeal of describing this as a
>"rationality" inquiry, though it's a very different sort of inquiry than the
>one I outline above, partly because it seems to me to be necessarily
>normative and not just descriptive.  Can anyone suggest how this sort of
>"proportionality" test might operate?  Would it be part of the "rational
>basis" inquiry?  My tentative thought is that this is best not seen as a
>"rationality" issue but rather as a morality / legality / constitutionality
>question, but I may well be mistaken.
>
>        Eugene
>
>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.