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"Our progress in degeneracy appears to me to be pretty
rapid. As a nation we began by declaring that 'all men are
created equal.' We now practically read it 'all men are created
equal, except Negroes.' When the Know-nothings get control,
it will read 'all men are created equal, except Negroes and
foreigners and Catholics."
Abraham Lincoln,
Letter to J.F. Speed, August 24, 1855.
To racially profile or not to
profile continues to be one of the nagging and difficult questions
of the day. According to recent polls, 66 percent of whites
and 71 percent of African-Americans support the ethnic profiling
of individuals who look to be Arab. Unfortunately, there are
also countless stories of Arabs and Arab-Americans being singled
out for "suspect" (criminal) treatment based on nothing
more than their physical features and attire. Worse yet, the
United States Justice Department has opened over 170 investigations
into hate crimes again Arabs, including killings, shootings,
and arsons.
In these troubling and dangerous times we, as a society, must
implement very strong measures and safeguards to protect our
borders, our institutions, and ourselves. Even our cherished
civil liberties that make us such a great nation must be carefully
weighed and balanced against the utmost need to protect this
nation and its people.
Understanding the gravity of these choices, we, as lawyers, have
historically often been called upon to protect the civil liberties
of the disenfranchised and the unpopular. As society struggles
with the racial profiling issue, we, as lawyers and as a profession,
must ask ourselves a hard question: Do we have a societal role
and responsibility in helping define this issue and also in ensuring
that all Americans, including Arab-Americans, have equal rights
to equal protection under the Constitution? Or, are we to close
our eyes and blindly allow an unpopular ethnic group to become
America's new second-class citizens with limited rights under
the Constitution?
The primary difficulty I have in stomaching racial profiling
as a policing tool is that it is in no way a rational and
proportionate response to our very real and rational fears
about terrorism. Instead, it creates a false sense of security.
As lawyers, we are trained to dispassionately analyze the facts.
Some of the facts are that all of the individuals involved in
the hijacking on September 11 were Arabs and came from certain
geographical regions of the world. Not only should we not ignore
these facts, I believe the government should and must include
these facts along with other "predictive indicators"
in a profile of individuals likely to be engaged in terroristic
acts. I fully support our government doing such.
However, as lawyers, we should not kid ourselves into believing
that the government's reasonable use of multiple "predictive
indicators" in profiling terrorists is remotely the same
as "racial" profiling as it is being applied today
on Main Street all across America. By definition, racial profiling
is treating someone first as a "suspect," based solely
on the fallacious belief that their race, ethnicity, and/or religion
alone is a sufficient predictive indicator of potential criminal
behavior and then thereafter denying them equal treatment and
protections under the laws of this land.
In order to accept ethnic profiling of all Arab-Americans as
a legitimate policing tool, we must also assume that all or a
significant number of persons with Arab blood in their veins
have a proclivity for terrorism. I have yet to see any facts
that remotely suggest that if you are born an Arab and/or Muslim,
you are predisposed, genetically and/or socially, to commit terroristic
acts. Without there being even a scintilla of facts to support
such an uninformed proposition, we as lawyers should oppose any
proposition that would treat each and every Arab in this country
as a "suspect" based solely and exclusively upon that
person's religion or ethnicity.
When I was a kid growing up on the streets of Chicago in the
'60s and early '70s such generalizations were referred to as
"racial stereotypes" and we were taught that acting
on them constituted "prejudice" or "racism."
Today, we call it racial profiling. Quite frankly, it still
has the same stench and odor as when I was back on the streets
of Chicago. The only different now is that it has a more politically
correct name.
Justice Murphy's dissenting opinion in Toyosaburo Korematsu
v. United States, 323 U.S. 214(1944), the U.S. Supreme Court
case in which the Court supported the military's decision during
World War II to place all Japanese-Americans in internment camps
based upon their race, sums up quite well why we as a nation
should avoid repeating our history of treating other Americans
as second-class citizens:
I dissent, therefore, from this legalization of racism. Racial
discrimination in any form and in any degree has no justifiable
part whatever in our democratic way of life. It is unattractive
in any setting but it is utterly revolting among a free people
who have embraced the principles set forth in the Constitution
of the United States. All residents of this nation are kin in
some way by blood or culture to a foreign land. Yet they are
primarily and necessarily a part of the new and distinct civilization
of the United States. They must accordingly be treated at all
times as the heirs of the American experiment and as entitled
to all the rights and freedoms guaranteed by the Constitution.
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JARVIS C. JONES is president
of the Minnesota State Bar Association. An attorney with experience
in business and in private practice, he now serves as an executive
with the St. Paul Companies, where he is responsible for a new
start-up business.
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