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Excerpted From: William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harvard Civil Rights-Civil Liberties Law Review 17 (Winter, 2004) (387 Footnotes) (Full Document)


williamcarterjrRacial profiling, or the use of race as an ex ante basis for criminal suspicion, has been the subject of much scrutiny and debate. Traditionally, those who support the use of race as an element of criminal profiles have argued that the practice is merely a reflection of racially disparate crime rates. If African Americans, for example, commit more crime, it only makes sense to include race as an element of profiles used to predict criminal conduct.  Furthermore, many would argue that African Americans and other minorities are simply too sensitive and would characterize opposition to racial profiling as "political correctness." Since crime rates are racially disproportionate, ignoring such evidence in the name of cultural sensitivity costs us all, especially racial minorities whose communities are disproportionately affected by crime. 

Opponents of the practice respond with studies showing that rates of drug use (drug interdiction being the context in which racial profiling is most commonly employed) are not in fact racially disproportionate, or at least not so disproportionate as to justify the massive racial disparities regarding whom law enforcement officers single out for suspicion.  Most opponents of racial profiling would further argue that even if there is some racial disparity in crime rates generally,  the social costs of racial profiling outweigh the modest or arguable efficiency gains of the practice.  Litigants and scholars opposing racial profiling have therefore focused on the Fourth Amendment's prohibition of unreasonable searches and seizures and the Fourteenth Amendment's Equal Protection Clause in seeking to attack the practice. 

The historical context of race-based criminal suspicion is largely lost in the debates and jurisprudence regarding racial profiling. This Article contends that the Thirteenth Amendment,  in contrast to the equal protection paradigm that is currently the focus of racial profiling jurisprudence and scholarship,  provides a stronger constitutional basis for combating this lingering vestige of slavery.  Rather than focusing on arguments about efficiency or abstract "equal treatment" under the Equal Protection Clause, a Thirteenth Amendment framework for examining racial profiling forces us to recognize and confront the continuing effects of slavery and the social and legal structures that supported it. Accordingly, this Article seeks to redirect the debate over racial profiling toward a frank consideration of the historical permanence of the assumption of innate black criminality; the roots and purpose of that stereotype in the system of chattel slavery and the subjugation of African Americans after the end of slavery; and its continuing effects on African Americans today.

The Supreme Court has long recognized that the Thirteenth Amendment was intended not only to destroy human enslavement as an economic institution, but also to eliminate the lingering effects of the slave system. Shortly after passage of the Thirteenth Amendment, the Court held that the Thirteenth Amendment empowered Congress not only to end chattel slavery but also to "pass all laws necessary and proper for abolishing all badges and incidents of slavery."  In Jones v. Alfred H. Mayer Co.,  the Court revitalized the Thirteenth Amendment, which had lain largely dormant for over a century after its passage, by holding that private white persons' refusal to sell property to African Americans constituted a badge or incident of slavery.  This Article, while recognizing the need for some discernable limits to the badges and incidents of slavery theory of the Thirteenth Amendment, does not attempt to provide a comprehensive theory of those limits in all circumstances. Rather, I seek here only to sketch the framework of such limits in the context of racial profiling. 

Racial profiling is best understood as a current manifestation of the historical stigma of blackness as an indicator of criminal tendencies. This stereotype arose out of, and was essential to, slavery in the United States. The demonizing of African Americans as the dangerous, uncontrollable "other" made it easier to reconcile the American ideal of liberty for all persons with the reality of enslavement. The myth of innate black criminality served both to dehumanize African Americans during slavery and to justify the brutal means of social control needed to maintain white dominance after the end of slavery.

My purpose here is not to equate racial profiling with slavery. Doing so would minimize the suffering of the millions of Africans enslaved in this country. I do not argue that the injury caused by racial profiling is as severe as slavery, nor that African Americans today in any way experience the nearly unimaginable degradation of slavery. Rather, this Article contends that the widespread stigmatization of African Americans as predisposed toward criminality is a lingering vestige of the slave system and is therefore outlawed by the Thirteenth Amendment. 

It is clear that persons who are not African American can suffer a "simple" Thirteenth Amendment injury; that is, any person of any race can be enslaved or compelled to labor for another. $%^19 This Article focuses on racial profiling of African Americans, however, because (1) they are the original subjects of the Thirteenth Amendment and (2) they are the most likely to suffer slavery's badges and incidents. $%^20 While other ethnic minorities are also saddled with popular perceptions of group propensity for crime, those assumptions tend to operate differently, and perhaps more narrowly, than the widespread stereotype of black criminality. 

Part II of this Article discusses the phenomenon of racial profiling, the damage racial profiling inflicts, and the traditional bases for opposing the practice.

Part III examines the inadequacy of current constitutional jurisprudence regarding racial profiling.

In Part IV, I examine the history and purposes of the Thirteenth Amendment as well as major Thirteenth Amendment jurisprudence. I also examine the historical continuity of African Americans' stigmatization as congenital criminals and contend that race-based criminal suspicion is indeed a "badge or incident" of slavery in violation of the Thirteenth Amendment.

Part V discusses Congressional and judicial power under the Amendment and rebuts arguments that slavery's lingering effects may only be prohibited by Congress under the Thirteenth Amendment's enforcement clause and may not be judicially addressed under the Amendment's self-executing core.

Part VI briefly reviews some benefits of, and concerns about, the "badges and incidents of slavery" theory of racial profiling. This Article concludes that racial profiling, even in the absence of Congressional legislation, is a violation of the Thirteenth Amendment, and calls on the judiciary to construe the Amendment to fulfill its promise to rid the freedmen and their descendants of slavery's legacy.

[. . .]

Racial profiling remains a significant problem for racial minorities in general and African Americans in particular. Courts have construed the Fourth and Fourteenth Amendments in ways that preclude any effective remedy. Congress has also proved unwilling to adopt legislation addressing the problem.

The Thirteenth Amendment, based upon its legislative history, historical context, and interpretation in Jones, remains a viable and powerful remedy for racial profiling. The Thirteenth Amendment's promise was to eliminate all of slavery's lingering vestiges, not just to end the institution of chattel slavery. A Thirteenth Amendment approach to racial profiling takes into account the legacy of the entwinement of race and criminal suspicion and the fact that the officially enforced presumption of black criminality arose out of the slave system and was integral to maintaining it. A Thirteenth Amendment analysis also forces us to confront the purposes served by the stereotype of black criminality historically and recognize that those same purposes are served today, albeit in a "gentler" form. Because the effects of this stigma persist today, it is properly considered a modern-day badge or incident of slavery. Courts should recognize and fully enforce the Amendment's radical purposes by providing a direct Thirteenth Amendment cause of action for victims of racial profiling. The alternative--ignoring this badge of slavery--means "the Thirteenth Amendment made a promise the Nation cannot keep."

Assistant Professor, Case Western Reserve University School of Law.

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