Levy: Can Ethnic Profiling Be Constitutional?
Thursday August 17, 2006
Category: Race and Equal Opportunity | War on Terror
As I reported in last week's Civil Liberties Top 10, the London terrorism scare has resurrected the debate over ethnic profiling. I'll be blogging on this issue more in the coming days and weeks, but for now let's take a look at an argument that a Cato Institute scholar made regarding ethnic profiling almost five years ago, only a few weeks after the 9/11 attacks. The scholar in question is Robert A. Levy, a conservative libertarian who serves as a Cato senior fellow in constitutional studies. His argument is in many respects a perfect example of how to write an effective argument and, content aside, this fact is worth acknowledging. He begins by singing a prelude that creates the effect of establishing him as a centrist--stating on the one hand that "it would be foolish to treat civil liberties as inviolable when the lives of innocent thousands are at stake," and on the other that "[e]thnic profiling cannot be defended simply by asserting that some people will be more secure." Upon careful analysis these two concessions seem to contradict each other, but never mind--they accomplish the intended effect, which is to establish that he is not interested in making a knee-jerk, cliched argument. And, to his credit, he doesn't.
Since Levy is making a constitutional argument, let's look at the relevant portion of the Constitution: Section 1 of the Fourteenth Amendment, which reads:
But every amendment has its loopholes. In the infamous Korematsu v. United States (1944), justifying the forced internment of Japanese Americans, the Supreme Court established national security as an overriding criterion. Most conservatives don't like to talk about it (Levy, for example, never brings it up), but if the Supreme Court permits ethnic profiling on the basis of national security, it will in effect be resurrecting the Korematsu standard as tempered by later, more progressive cases.
Chief among these cases is one that Levy does cite: Adarand Constructors v. Pena (1995). The big question for Pena was whether the government can legitimately permit discrimination on the basis of race and, if so, when. The Supreme Court has consistently defended affirmative action programs on the grounds that they remedy past equal protection violations--that they, in other words, reflect attempts to live into the spirit and intentions of the Fourteenth Amendment. But Pena, a case involving minority contracting, led the Court to narrow its standard. Justice Sandra Day O'Connor wrote for a 5-4 conservative majority:
I'm going to leave that question to you, gentle reader. But one clue can be found in another Levy op-ed, this one from February 2002, in which he explains the differences between profiling African Americans and profiling Arabs:
Three of the 24 suspected hijackers being held by British authorities are converts to Islam. Equally notably, Arabs make up only 12 percent of Muslims worldwide, and surveys have consistently suggested that most American Arabs are Christians. So any anti-terror program profiling Arabs would call special attention to Roman Catholics of Arab descent while ignoring 88 percent of the global Muslim population (a group that includes shoe-bomber Richard Reid, to name only one non-Arab terrorist). And bulk profiling of Muslims would be even worse--introducing a completely new set of constitutional problems based around the First Amendment's free exercise clause, while at the same time attempting to profile an intangible and sometimes inscrutable personal attribute. We don't even know how many Muslims there are in the United States; studies have suggested anywhere from 3 to 7 million. Religion is already part of individual multi-factor suspect profiles, but anything more ambitious than that would be impractical even if it weren't unconstitutional.
We should remember, in the course of all this, that Levy is no totalitarian. He opposes the all-too-common police harassment of African Americans, and even suggests that if we do proceed with an inconvenient ethnic profiling program, its unintended victims should be compensated for their trouble. It would be a mistake to vilify Levy. He's a moderate in this debate. But it is his moderate tone that exposes just how insidious, and how seductive, the logic of ethnic profiling can be.
I leave you with one more thought: I am a civil libertarian who lives in Jackson, Mississippi, a city that is 73% African-American. When I attended an ACLU function several weeks ago dealing with blue-on-black racial profiling, the speaker asked everyone who had experienced the "driving while black" phenomenon to raise their hands. Almost every black hand in the room went up. Some of those hands belonged to people I've worked very closely with over the past few months on other activism projects, and I have to say that the experience was chilling. The idea of expanding what already appears to be an invincible unwritten racial profiling policy, and giving it legitimacy, is frightening.
But an ethnic profiling policy could generate another dangerous side effect: complacency. The other day, I read an emailed comment where someone remarked that they wished we'd get on with the ethnic profiling so they wouldn't have to go through so many security hassles at the airport again.
How much do you want to bet that terrorists aren't waiting for the same thing?
See also:
As I reported in last week's Civil Liberties Top 10, the London terrorism scare has resurrected the debate over ethnic profiling. I'll be blogging on this issue more in the coming days and weeks, but for now let's take a look at an argument that a Cato Institute scholar made regarding ethnic profiling almost five years ago, only a few weeks after the 9/11 attacks. The scholar in question is Robert A. Levy, a conservative libertarian who serves as a Cato senior fellow in constitutional studies. His argument is in many respects a perfect example of how to write an effective argument and, content aside, this fact is worth acknowledging. He begins by singing a prelude that creates the effect of establishing him as a centrist--stating on the one hand that "it would be foolish to treat civil liberties as inviolable when the lives of innocent thousands are at stake," and on the other that "[e]thnic profiling cannot be defended simply by asserting that some people will be more secure." Upon careful analysis these two concessions seem to contradict each other, but never mind--they accomplish the intended effect, which is to establish that he is not interested in making a knee-jerk, cliched argument. And, to his credit, he doesn't.
Since Levy is making a constitutional argument, let's look at the relevant portion of the Constitution: Section 1 of the Fourteenth Amendment, which reads:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Note the bolded text. The latter bolded phrase--referred to as the equal protection clause (I'll be writing about this over the coming days)--seems to prohibit racial or ethnic profiling, which should come as no surprise given that this is almost exactly what it was written to do. Ratified in 1868, just three years after the American Civil War, it was aimed squarely at the dreaded Black Codes of the post-Confederate states that allowed police to harass and ultimately arrest African Americans for the crime of, say, leaving town without their employers' permission.
But every amendment has its loopholes. In the infamous Korematsu v. United States (1944), justifying the forced internment of Japanese Americans, the Supreme Court established national security as an overriding criterion. Most conservatives don't like to talk about it (Levy, for example, never brings it up), but if the Supreme Court permits ethnic profiling on the basis of national security, it will in effect be resurrecting the Korematsu standard as tempered by later, more progressive cases.
Chief among these cases is one that Levy does cite: Adarand Constructors v. Pena (1995). The big question for Pena was whether the government can legitimately permit discrimination on the basis of race and, if so, when. The Supreme Court has consistently defended affirmative action programs on the grounds that they remedy past equal protection violations--that they, in other words, reflect attempts to live into the spirit and intentions of the Fourteenth Amendment. But Pena, a case involving minority contracting, led the Court to narrow its standard. Justice Sandra Day O'Connor wrote for a 5-4 conservative majority:
[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race ... should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection ... Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.So we have two clearly established standards here: In order to meet Fourteenth Amendment guidelines as set out in Pena, any ethnic profiling program must be narrowly tailored to further a compelling government interest. This would seem to allow a certain amount of wiggle-room--just enough, in Levy's view, for a moderate program of ethnic profiling:
Ethnicity may be included as one factor in a multi-factor profile if, and only if, all three of these criteria are met: First, the addition of an ethnic factor must significantly improve the effectiveness of the profile in ferreting out the guilty ... The key, here, is evidence, not guesswork, that the profiled class is indeed different ...On the face of it, this sounds an awful lot like what law enforcement officers are already doing (when they're following best practices--which is not always the case, as we well know). When the ethnicity of a suspect is known, that limits the investigation--and when a person meets the description of a specific suspect, and when ethnicity is part of that description, then police are of course free to question that person. So what is Levy really proposing here?
Second, there must be reasonable suspicion to believe that a meaningful portion of the profiled ethnic class is guilty. Otherwise, the profile will be unduly over-inclusive - vesting the sins of the guilty on the innocent ...
Third, the benefit of including ethnicity must exceed its cost ... Again, evidence rather than conjecture must control ...
Naturally, a vital consideration is the scope of the imposition. We should not object if police use ethnic profiling simply to limit their investigations. Even the questioning of profiled suspects raises few concerns if the suspects are free not to answer and free to leave ... It's quite different to detain all Arab non-citizens unless and until it can be proven that they pose no threat.
I'm going to leave that question to you, gentle reader. But one clue can be found in another Levy op-ed, this one from February 2002, in which he explains the differences between profiling African Americans and profiling Arabs:
Imagine, for the sake of argument, that all terrorists are Arabs. Only a fool or a masochist would then prohibit Arab ethnicity from being added to a multi-factor profile of suspected terrorists. Indeed, all of the 9/11 terrorists were reportedly of Middle Eastern descent. Yet, self-evidently, all criminals are not African Americans. Thus, other things being equal, the fit of a terrorist profile that included ethnicity would likely be tighter than the fit of a criminal profile that included race.Levy is once again restating existing practices--ethnicity, when it can be reasonably ascertained, is almost invariably part of multi-factor profiles of both criminals and terrorists and is consistently used to limit investigations. Furthermore, his "for the sake of argument" comes with a pretty big asterisk: While all eleven of the 9/11 hijackers were in fact of Arab descent, not all terrorists are Arab. When we shift the profile from "Arab" to "Muslim"--two terms that are used interchangeably by some profiling proponents (but not, fortunately, by Levy)--the problems with ethnic profiling become clearer.
Three of the 24 suspected hijackers being held by British authorities are converts to Islam. Equally notably, Arabs make up only 12 percent of Muslims worldwide, and surveys have consistently suggested that most American Arabs are Christians. So any anti-terror program profiling Arabs would call special attention to Roman Catholics of Arab descent while ignoring 88 percent of the global Muslim population (a group that includes shoe-bomber Richard Reid, to name only one non-Arab terrorist). And bulk profiling of Muslims would be even worse--introducing a completely new set of constitutional problems based around the First Amendment's free exercise clause, while at the same time attempting to profile an intangible and sometimes inscrutable personal attribute. We don't even know how many Muslims there are in the United States; studies have suggested anywhere from 3 to 7 million. Religion is already part of individual multi-factor suspect profiles, but anything more ambitious than that would be impractical even if it weren't unconstitutional.
We should remember, in the course of all this, that Levy is no totalitarian. He opposes the all-too-common police harassment of African Americans, and even suggests that if we do proceed with an inconvenient ethnic profiling program, its unintended victims should be compensated for their trouble. It would be a mistake to vilify Levy. He's a moderate in this debate. But it is his moderate tone that exposes just how insidious, and how seductive, the logic of ethnic profiling can be.
I leave you with one more thought: I am a civil libertarian who lives in Jackson, Mississippi, a city that is 73% African-American. When I attended an ACLU function several weeks ago dealing with blue-on-black racial profiling, the speaker asked everyone who had experienced the "driving while black" phenomenon to raise their hands. Almost every black hand in the room went up. Some of those hands belonged to people I've worked very closely with over the past few months on other activism projects, and I have to say that the experience was chilling. The idea of expanding what already appears to be an invincible unwritten racial profiling policy, and giving it legitimacy, is frightening.
But an ethnic profiling policy could generate another dangerous side effect: complacency. The other day, I read an emailed comment where someone remarked that they wished we'd get on with the ethnic profiling so they wouldn't have to go through so many security hassles at the airport again.
How much do you want to bet that terrorists aren't waiting for the same thing?
See also:
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