Statements suggesting internment of Arabs legally actionable?

[Mitchell Berman]

John Parry wrote:

>2) On Romer, I guess I've always understood Kennedy to be fudging -- he
>knows Amendment 2 is rational in the Levinson-Volokh-Berman sense but he
>thinks it is unreasonable.  Either he thinks the L-V-B sense of rationality
>isn't enough, or, more likely, he is simply not going to say flat out what
>the difference between rational and reasonable is, because then he is
>admitting to making value judgments, which he does not want to admit to.

I'd say that's precisely why Romer should be criticized: It reached the
right result while striving to preserve the (potentially harmful) falsehood
that constitutional adjudication does not require individual judges to make
substantive value judgments.

John also wrote:

>More generally, is there an example of a statute that is irrational under
>the Levinson-Volokh-Berman defintion of rational?  I confess I can't think
>of any, unless I cheat.  And by cheating, I mean resorting to purpose
>analysis.  I can make arguments of irrationality if I impute a particular
>purpose to a legislature and then declare that the statute has no rational
>fit or connection to that purpose.  But that's cheating because, among other
>things, it allows me to create the irrationality I am purporting to find.
>
>If all legislation is L-V-B rational, then what is the point of insisting
>that a particular piece of legislation is rational.  Doesn't the statute
>stand or fall on a value judgment (or a refusal to make that judgment, which
>we call deference).

Putting present doctrine aside, I'm not at all sure why it should be deemed
"cheating" for courts to measure the rationality of a challenged state
action against the actual ends state actors sought to advance -- or at
least against the set of ends that the state's attorneys are prepared to
claim the state decisionmakers wished to advance.  That said, I'm not
advocating that rationality is all that should be demanded of most
challenged state actions.  Recasting the constitutional question from
means-ends rationality to overall reasonableness (or something else) would
have some salutary effects (as suggested above).

Mitch Berman