Statements suggesting internment of Arabs legally actionable?

[Scarberry, Mark]

John Parry 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).

I'm sure I'm missing something, but I don't know what.

John Parry


A RESPONSE:

I'm probably missing something too, but here is a response to John's
thoughtful post.

Sometimes the only purpose which it is rational to say a statute advances is
a purpose that is not permitted under the Constitution. If the obvious
purpose of a statute is impermissible, then the question may be whether
there is some legitimate purpose which is rationally furthered by the
statute. The government, in defending the statute, may put forward various
purported purposes, but if the statute does not rationally further any of
those purported purposes then it fails the rational basis due process test.
I suppose almost any time a legislator drafts a bill with the intent to
further a purpose, there will be some rational argument that the bill
furthers that purpose. But it may often be the case that there is no
rational argument that legislation furthers some purpose not intended by its
drafter. To the extent, then, that governments assert purposes not intended
by drafters, a fair question may arise whether the legislation rationally
furthers that purpose.

I think the best interpretation of Romer is that Amendment 2's overbreadth
showed that at least one of its purposes was illegitimate. If it, for
example, prohibited a police department from setting up a crime task force
to deal with a rash of violent crimes against gays, then that would not seem
to advance any purpose put forward by Amendment 2's defenders. It would seem
to advance only a purpose of allowing violence to be committed on gay
persons and denying them the police protection that any other group targeted
for crime would receive. So interpreted, Amendment 2 rationally furthered
that purpose--allowing violence against gays--but the Court rightly held
that purpose to be illegitimate. If no other purpose is rationally furthered
by the overbreadth of Amendment 2, then it, at least in part, either makes
irrational distinctions between gays and non-gays, or it makes rational
distinctions to further an illegitimate purpose.

This is not to say that the Court was right to interpret Amendment 2 so
broadly or was right to invalidate Amendment 2 in all of its applications,
including applications that might rationally have furthered a legitimate
state purpose.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Mitchell Berman [mailto:mberman at MAIL.LAW.UTEXAS.EDU]
Sent: Wednesday, September 26, 2001 3:30 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Statements suggesting internment of Arabs legally
actionable?


John Parry wrote:

". . . some airlines have allowed passengers and/or flight crews to expel
passengers who are or look Muslim or Arab etc.  The defense is that the
passengers and/or crews do not feel comfortable.

"When I read these stories, I couldn't help but recall the recent
discussion on this list about the reasonableness of Korematsu.  I suppose
these decisions are equally "reasonable," and I suggest that they
demonstrate palpably the unacceptable use of rational basis divorced from
any value content, at least when dealing with actions that mingle too
easily with prejudice.  (Yes, as lawyers we must parse through and consider
rationality, but we must not let it lie there unadorned with judgment, lest
it become the equivalent of a loaded gun . . . ).  I'd suggest further that
one result of these discussions is to confirm Romer's rightness."

Sure, Romer reached the right conclusion, but I still resist the Court's
conclusion that Amendment 2 bore no rational relationship to any legitimate
end.  I hope I am not alone in remaining persuaded by the Levinson-Volokh
view of Korematsu and of rationality review in general, which I understand
essentially to distinguish the "rational" from the "reasonable," and to
incorporate value judgments only into the latter.  The vice of acting
irrationally is not identical to the vice of acting upon substantively
wrong values, and our language should reflect that difference.

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.")

Mitch Berman