rationality

[Lynne Henderson]

I'm on the road, so I don't have cites handy, but here goes. . . See U.S. v.
Whren--racially motivated searches and seizures, if otherwise supported by
reasonable suspicion or probable cause, do NOT violate the fourth amendment.
That doesn't mean that is a correctinterpretation, but it is the Court's
current one. One thing we all have ot keep in mind is confusing the "is"
with the "ought" these days. . .
Richard Banks has an interesting piece on racial profiling in a recent UCLA
law review.
Best
Lynne

on 9/28/01 4:52 PM, Ilya Somin at isomin at FAS.HARVARD.EDU wrote:

> It seems to me that the really significant constitutional issues here are
> issues of "unreasonable" searches and seizures under the 4th Amendment
> rather than Equal Protection Clause questions. Even if the category of
> "suspicious"-looking individuals should not be considered a protected class
> under the 14th Amendment, arresting or interning a person solely for this
> reason must, in my view, be a violation of the 4th Amendment. It may also be
> an unconstitutional deprivation of liberty without due process of law under
> the Due Process Clause. I am not sure that we need to try to extend the
> Equal Protection Clause to cover all possible wrongs, especially in a
> situation where there are other constitutional provisions directly on point.
>
> Ilya Somin
> -----Original Message-----
> From: Chambers Jr, Henry L. <ChambersH at MISSOURI.EDU>
> To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
> Date: Friday, September 28, 2001 6:43 PM
> Subject: Re: rationality
>
>
>> Robin Charlow wrote:
>>
>>>>> If we're talking about Equal Protection rationality, then isn't
>> it necessary to establish comparative rather than absolute rationality?
> The
>> relevant question would be whether it is rational to treat one person
>> differently from other similarly situated people, or, in your hypothetical
>> terms:  Is it rational to single out for internment some particular
>> nonsuspicious individual from the universe of nonsuspicious individuals?>>>
>>
>> I think the answer under the Levinson-Volokh-Berman construct would be: yes
>> it is rational to intern some particular nonsuspicious individual if that
>> person's propensity to do X (where X is a legitimate subject of state
>> regulation) is greater than zero.  Of course, it still may not be
> reasonable
>> for any number of reasons.
>>
>> Let's assume the law is that we will intern all left-handed people (though
>> understandably not a suspect class).  I would think it rational under the
>> Levinson-Volokh-Berman construct to intern all left-handed folks regardless
>> of their relative propensity to commit or aid terrorist acts because by
>> interning them the legislature presumably has stopped some left-handed
>> person from committing or aiding a terrorist act -- a legitimate end of
>> legislative action.
>>
>> Whether it makes more sense to intern right-handed people than to intern
>> left-handed people would seem to impact a reasonableness inquiry, but not a
>> rationality inquiry.
>>
>> I would hope that the Equal Protection Clause would and should require more
>> than this for rationality, but I cannot tell if Sandy, Eugene and Mitchell
>> believe that pure rationality does.
>>
>> -Hank Chambers
>>