Statements suggesting internment of Arabs legally actionable?

[Mitchell Berman]

At 02:25 AM 9/27/01 -0400, John Noble quoted my saying the following:

>>On this view, "racial profiling" is often "rational," and whether it is
>>"reasonable" -- both morally and constitutionally -- must be sensitive to,
>>among other things, the harms sought to be avoided.  (None of which, of
>>course, is to condone allowing airlines "to expel passengers who are or
>>look Muslim or Arab etc.")

and asked: "How doesn't it condone exactly that? Where are the boundaries
of the
rationality view you're urging?"

It seems to me at least plausible, and perhaps likely, that the destruction
of the World Trade Centers was a rational means (though, hopefully, not an
ultimately successful one) to the ends the terrorists seek.  Yet I would
think this statement is unlikely to be construed as condoning the attack.
In the very same way, my statement about racial profiling's possible
rationality (as a means, say, to the end of reducing various sorts of
crimes) says nothing about its legitimacy as a matter of political
morality.  It also says little about its constitutionality.  Even if the
irrationality of given state action is a sufficient ground for its
unconstitutionality, surely it's not a necessary one.  Rationality
judgments occupy only a tiny corner of evaluative judgments generally; I
take Sandy and Eugene to have been urging that it disserves conceptual
clarity, as well as candor in moral and political argument, to masquerade
(potentially controversial) judgments about substantive value as claims
that given conduct is irrational.

Mitch Berman