Wednesday, July 15, 2020


Article Index


A. Racial Profiling and the Presumption of Illegality Against Fugitive Slaves and Immigrants

      State enforcement of federal immigration laws often leads to racial profiling. This practice, a presumption of illegality based on racial identity, is inconsistent with the Fourth Amendment's protections against unreasonable searches and seizures. It is also inconsistent with the Fourteenth Amendment's equal protection guarantees. The Department of Justice has stated that racial profiling,

       at its core[,] concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches, and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual or one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.
      When law enforcement engages in profiling, there is “[n]o logical relationship ... between any of these characteristics and the commission of Yet, “[g]overnment agencies employ race-based enforcement tactics without empirical proof of their

      During enforcement of the Fugitive Slave Acts, courts held that

       [i]n the case of a person visibly appearing to be a negro, the presumption is, in this country, that he is a slave, and it is incumbent on him to make out his right to freedom: but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary for his adversary to shew [sic] that he is a slave.
      Thus, presumptions in the recovery of fugitive slaves are very similar to current racial profiling. The legislation, which permitted slave owners to capture any African American and impress him into servitude, was as racially focused as today's profiling.

      An example of the use of racial profiling in the enforcement of the 1850 Act is illustrated in the story of Solomon Northrup, a free African American, who was captured by James H. Burch, a slave catcher and dealer. Northrup was racially profiled, abducted, and incarcerated and did not did not know why he was imprisoned, as he was never a slave. Scholar Larry Stokes explains that

       [a] White could fraudulently claim that a Black was a slave, and there was very little that a Free Negro could do about it. There always existed the danger of a free Black being kidnapped, as often happened, and taken into slavery. A large majority of free Blacks lived in daily fear of losing what freedom they had. One slip of ignorance of the law would endanger their slight freedom and place them into slavery.

      Anti-slavery activists pointed out the frequent occurrence of free African American men and women being illegally enslaved.

      In recent state and federal immigration laws, there appears to be a similar presumption of illegality that is applied to Latinos. For example, in United States v. Brignoni-Ponce, the Supreme Court held that immigration officers could use racial identifiers with other factors near the U.S. border. Immigration scholar Kevin Johnson critiqued this decision as authorizing the racial profiling of Latinos. Just as Northrup was racially profiled as a slave because he was African American, Brignoni allows the presumption that a Latino with predominant Mesoamerican features near the border is unauthorized.

       Renteria-Villegas v. Hall is demonstrative of the Latino presumption. The Davidson County Sheriffs Office of Nashville, Tennessee, detained Daniel Renteria-Villegas, a 19-year-old Portland, Oregon-born man, twice within the same month. During the first incident, even though the arrest report and booking documents stated that Renteria-Villegas was born in Portland, Oregon, he was placed on an “ICE hold.” The arresting officer, without asking, recorded Renteria-Villegas's place of birth as Mexico. Renteria-Villegas was not released until his family presented officials with his passport and birth certificate.

      These cases illustrate how racial profiling reinforces the unequal application of the laws against certain populations. Lawful residents fear unlawful detention based on criteria such as their race, ethnicity, or proximity to the border. Racial profiling in enforcement may lead to denied access to counsel, unlawful, prolonged detention without the bringing of charges, and denial of substantive and procedural due process rights.

B. Membership Within a State: Are Fugitive Slaves and Immigrants Chattel or Humans?

      Both the 1850 Fugitive Slave Act and current immigration policies have inspired a debate that requires the American people to decide if human beings who live and work among us are morally and legally equal to us. The purpose of this comparison is to highlight similarities between the enforcement of immigration laws and the Fugitive Slave Acts' regulation of human labor. This comparison demonstrates that immigration policies should be instituted based on norms that recognize the personhood and humanity of the subjects of the law. The key connection between the Fugitive Slave Acts and current migration policies is the ways in which immigration law and policy have facilitated dehumanization and created a quasi-citizen worker.

      The most significant parallel between the Fugitive Slave Acts and the current deportation regime is the unjust treatment of human subjects in the course of using cheap labor to maximize profit. Slaves were treated as chattel property and forced into labor. They were counted as three-fifths of a person for purposes of Congressional representation and received no protections under the law. U.S. immigration policies have sought the benefit of migrant laborers separate from their value as persons. At times, our country's migration policies are executed in a manner in which people are seen as machines that simply move levers. This approach has resulted in laws that infringe on the personal liberties of target classes.

      This personless approach is reinforced when those who do not have citizenship are denied the protection of the law. When a person does not fit within membership in a polity, that person may be outside of state protection of rights and can be subject to subordination and exploitation. In this context, when people are divorced from their humanity, the policies surrounding their migration perpetuate dehumanization. In the area of immigration law, scholars such as Kevin Johnson and Linda Bosniak have critiqued how the immigration system has continually perpetuated the subordination of marginalized groups. Bosniak specifically critiques “progressive” scholarship in that it “tends to normatively embrace the very national boundary which serves to effect, and justify, the immigrants' This context questions the “‘national political imagination,’ one which regards the national community as the predominant community of normative concern and presumes the legitimacy, and perhaps the necessity of maintaining borders around Thus, despite their contributions, immigrants' individual rights are severely restricted. Although there must be some form of immigration laws under these theories, our country must examine and limit these laws to the extent that they violate equal protection norms. One can accept some difference in the law, but one cannot accept laws that blatantly violate equal protection norms.

      There is a striking similarity in the regulation of both slaves and migrant workers to low paying and low status jobs. Slaves performed jobs such as agricultural and household work. Today, both documented and undocumented migratory workers are pigeonholed into low paying agriculture, household, and construction jobs. In both positions, the law facilitates the exploitation of the most vulnerable population.

      The Reconstruction Amendments were intended to “abolish[] all class legislation in the States and [do] away with the injustices of subjecting one caste of persons to a code not applicable to Similarly, when immigration law and policy begin to recognize the humanity of the subjects of the laws, there will be more equitable policies towards immigrants who come to the United States as economic migrants. Most acknowledge that “[s]lavery was a system of racial adjustment and social So, too, is an immigration regime that has the indirect effect of targeting the poorest immigrants of color.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law