Tuesday, August 7, 2018

Teaching the Internment to the Resistance

In standing up and speaking out for racial justice, we ought to advance the best argument. That is not necessarily what we suppose it is, especially taking into account the audience we would like to bring around. In a law school seminar, I just worked through the example of the internment of Japanese Americans during World War II. This episode demonstrates how, in the law, the reasoning is as important as the result. It could not be more relevant.

I am philosophical because I am practical. As a professor, I am committed, with a passion, to what will be useful to students; I am regarded by colleagues as woefully anti-theoretical. Yet I try to point out how what appears to be abstract has potential utility to advocates. That also is true of what might be dismissed as obscure, since in our system of jurisprudence decisions depend on the following of precedent. The internment continues to be controversial. It is cited positively and negatively.

In teaching the four Supreme Court cases that allowed the mass violation of due process, but technically did not approve of the incarceration of individuals conceded to be loyal, I have emphasized that it is not enough to criticize the government actions as “racist.” Although we might agree now that they were motivated by prejudice, they were supported by virtually everyone then — including future Chief Justice Earl Warren, who undid Jim Crow racial segregation in the 1954 case of Brown v. Board of Education; the national ACLU, which liked FDR; and Chinese Americans and Korean Americans, who wore buttons and put up signs declaring their ethnicity (emphatically not Japanese) and stating, “I hate the Japs more than you do.” To be persuasive, either then or now, we have to be able to explain how the assumptions about Japanese Americans, based on their lineage, were wrong as a factual question and why they were wrong as a moral issue as well. It can be done.

Make no mistake. I am as much against the incarceration as possible, having co-written a textbook on the subject funded by the same bill that paid redress (and, I hasten to add, I am signed up to fight any variation imposed on another community). None but my students would suspect me of siding with those who would lock up people for the color of their skin, and I cheer them for their commitment. I would be remiss, however, if I failed to show them that in being against something, you should be for something. In this context, you must articulate a basis for denouncing the internment other than your own preference even if I happen to concur. You might deliberately refrain from the charge of “racism,” anticipating it will be futile. You could select a strategy that looks universal, as if the internment implicates others who would attract more sympathy, a course that has proven successful.

The choice of rationale for rejecting the internment affects the evaluation of contemporary proposals that similarly rely on an inference about background, in assessing the risks of espionage, sabotage, treason, and other treachery. Competing philosophies enter here. In the Western tradition of normative ethics, there are two rival schools of thought: deontological and consequentialist. You could object to the internment within either framework, but they might direct you to alternative conclusions in other situations. Constitutional interpretation has extended these concepts. There have been Justices who have insisted the text offers no opening to consider consequences, and those who have insisted the contrary.

“Deontological” refers to principles of duty. A deontological judge would have, above all, a sense of obligations. You do this, you don’t do that. These are rules that set responsibilities. They might admit exceptions. But if the rule applies, and the exception hasn’t arisen, then it is strict. There is no “if,” “and,” or “but” about the matter. With the internment, you could take the position that generalizing from categories of race or ethnicity is impermissible. If that is accepted as the rule, then consistency would demand that any other state action similarly would be prohibited. (That would include remedial programs or those intended to produce diversity, if they were not neutral in their method.)

“Consequentialist” refers to balancing of effects. A consequentialist judge is utilitarian in assessing benefits and costs. You do this, if it generates an outcome on the whole favorable; you don’t do it if it doesn’t. You are amenable to compromise. With the internment, you could take the position that in this instance the generalization is inaccurate. It is over inclusive of innocent persons with Japanese ancestry and under inclusive of guilty persons of all other heritages. Or it brings about additional repercussions that are harmful, such as curtailing contributions from Japanese Americans who could assist the war effort through special skills. That attitude would not commit you to oppose everything else that resembled the internment. It would compel you to analyze empirical data.

In my own experience such as it is, people equivocate. All of us are a bit “deontological” and a bit “consequentialist.” It tends to be more of the former as we look at others, whose behavior who frown upon; more of the latter as we reflect on ourselves, for whom an excuse serves to vindicate. Such is human nature. I am dissuaded from the deontological severity of Immanuel Kant, by the hypothetical of the Nazi who comes to the door to ask if you are hiding Jews in the cellar. I would lie. I would have no compunction. I am reluctant to endorse consequentialism that is pure in calculation per John Stuart Mill, for it lacks protections against itself. It would limit an internment only if it were irrational. Too much that is tragic has been carried out by objective measurement.

“Deontological” and “consequentialist” are not the same, and not merely in an academic sense. Terms that are fancy describe rhetoric which is functional. A difference of opinion, expressed by those clothed in the authority of black robes, seated on the bench up high, creates the potential for another internment. The internment could be deemed inappropriate or ineffective, neither, or both. But for those who would have voted against it as a legislator or struck it down as a judge, inappropriate and ineffective eventually will diverge. A lawyer who wins a case for one client might have lost it for another client already, well in advance, if she is not attentive to subtleties. So a law student who wishes to promote a cause needs to learn all its complexities.

This blog originally appeared on Huffington Post.

https://lawprofessors.typepad.com/racelawprof/2018/08/teaching-the-internment-to-the-resistance.html

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