The Corner

The Conservative Case Against Racial Profiling

Just in case the racial profiling discussion has not been completely exhausted, I’d recommend folks take a look at Nelson Lund’s fine article, “The Conservative Case Against Racial Profiling in the War on Terrorism,” 66 Albany Law Review 329 (2002).  Here are his basic points:

First, racial profiling or racial stereotyping is something that all of us do all the time. There are good reasons why we do it, and there are also good reasons why we need to make an effort not to do too much of it.

Second, free societies–and especially free markets–foster profound forces that tend to curb irrational racial stereotyping. These mechanisms certainly do not work perfectly, but they do work.

Third, governments are highly prone to excessive racial stereotyping and are largely immune from the forces that keep this practice in check in the private sector. For that reason, government policies that entail racial profiling should be treated with the greatest skepticism. Not only do they threaten the legitimate interests of various racial groups, but they tend to distract government agencies from alternative policies that are likely to work at least as well.

Certainly, we should not pander to left-wing racial mau-mauing if doing so will leave us vulnerable to another catastrophe like 9/11. But by the same token, let’s also avoid pandering to dysfunctional bureaucratic imperatives that have their own potential for disaster. In short, I agree with the conservative commentators who think that the war on terrorism is a serious business that we should all be treating in a serious way. But I disagree with the conclusion that racial profiling is likely to make an important contribution to that effort.

The most important reason for being skeptical about racial profiling is one that ought to be shared by the left and right alike: it threatens to undermine the important national goal of making all races equal under the law. I will focus here on an additional reason that should be especially appealing to conservatives: the danger of government abuses.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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