L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 143, October 15, 2001
POINTS OF VIEW
Racism and the New Profiling
by Charles Novins
Special to TLE
On ABC's "20/20" program (Oct. 3, 2001), John Stossel examined the changed face of racial profiling. A few scant weeks ago, Americans were building to a critical mass on this issue. Heads were rolling in capitals across the nation, especially New Jersey, as anyone associated with profiling in any way was suddenly oufitted with a scarlet "P," and summarily dismissed as just another bit of KKK rearing its ugly head. In Bush v. Gore presidential debate, the candidates' respective positions were, "Racial profiling is bad, bad, bad, and bad" with Gore responding that "Racial profiling is bad, bad, bad, bad, and, by the way, lockbox."
Now, post-9/11/01, we are profiling the s**t out of anybody who so much as smells like they may have visited a desert. A Delta pilot recently ordered an Arab man off his flight, purely for his racial appearance. People are refusing to board aircrafts where some (or even one) passenger looks arabic.
Government agents are dancing all over the place; some simply don't give a s**t and are sweeping up Arabs all over the place, while others are trying to be faithful to the laws by searching everybody equally, causing huge delays (and wasting finite security resources) as Grandpa gets searched thoroughly, then a teenage girl, then Abdullah, then on to the Icelander on crutches, etc.
Stossel interviewed dozens of people about this seeming contradiction. Comically, EVERY black citizen approved of profiling - Arabs, of course. He re-interviewed a black man who had been the subject of an earlier 20/20 report. The guy was racially-profiled and made a federal case of it, causing police to assault him, all on videotape, followed by civil rights suit, and so on. This guy's answer was similar to many others: He said he knows profiling is wrong, but it doesn't matter if it is, we must do it to Arabs now.
Astoundingly, at the end of the segment, where Stossel sums up, his conclusion was: the same!
So consider: the rule that most people have derived is, "Doing wrong is the right thing to do."
MORALITY'S GOT TO GO?
From a moral perspective, this is actually impossible. Whether you are Objectivist, or Christian, or subscribe to any form of morality whatsoever, the above rule is simply an oxymoron, an impossibility. A person with no morality may find it acceptable, since "wrong" and "right" don't exist for them, except in given circumstances at given times. But making up the rules as you go along isn't morality, and is actually the opposite of morality.
Reconciling this seems quite impossible. When blacks were being profiled, law-enforcement types stated the following fact: Statistically, for whatever reasons, blacks are disproportionately involved in crimes. The bold, unflinching answer that rang out from righteous Americans, both black and white was: "Even if true, it doesn't matter. 99% of Americans aren't criminals, so even if ONLY blacks committed nearly all crimes, it wouldn't justify profiling AKA racism."
A popular rejoinder is that times have changed. This is not an answer, because a moral person must specify how the changed events cause their morality to dictate a different action. So if profiling is racism (how can it not be?), then is the argument now that racism isn't always a bad thing? When does your morality approve of racism? Ought we re-write our Constitution to say that racism is allowable under certain circumstances? Has blanket condemnation of racism turned out to be error? Slavery was/is evil, but did we perhaps over-react by prohibiting any judgment at all based on race?
Another argument, much stronger, is that moral rules are subject to brief waiver in emergencies. Everyone recognizes this. You wash up on a beach, starving, nearly dead. A vacant beach house sits a few feet away. You break in and get food, then use the phone. That's no burglary as far as any sane analysis. Of course, you must repay the homeowner later, but moral rules are not suicide edicts. Even if the 9/11/01 jets were flown by their actual pilots, with guns at their heads, the pilots were guilty of nothing.
The problem is that emergencies have to be very narrowly defined, or law and morality disappear. There were plenty of tragic, horrible, indisputable "emergencies" in New York and Washington and Pennsylvania on 9/11/2001. But a "national emergency?" The consequence for me, in tangible terms, was the extra week I had to wait for the season premiere of "Frasier." And I live in visual distance of the WTC. America is under terrible crisis and threat, but "emergency" requiring "suspend law?" Not even close.
So what's the answer? Racial profiling aka racism is damnable, except when we're pissed? There is an answer, but first we need a little history.
THE LONG VIEW ON RACISM, LEGALLY SPEAKING:
[What follows is a stylized history of racism and civil rights, taking liberties with certain facts, but accurate conceptually.]
In approximately 1866, slavery was outlawed. Well, not really. Slavery was actually already illegal everywhere in the United States.
Imagine two white fellows living next door to one another in 1850, for example. Guy A decides to enslave guy B, so he takes gun, handcuffs and strolls next door. Assuming Guy A survives the attempt, he soon finds himself in prison on charges of assault, kidnapping, and a variety of other crimes.
Slavery was not "legal" at all. (There were certainly many "slavery" laws at the local level, but all were non-essential.) What made slavery exist was the fact that Negroes were not considered human, so you couldn't possibly assault or kidnap a Negroe any more than you could kidnap or assault a goldfish. In other words, laws of human civilization (e.g., don't kill, don't steal) simply didn't protect blacks.
What happened in about 1866 is that blacks were declared human. The technical term was "equal protection of the law" applied regardless of race. That this was a controversial idea at the time is probably as appalling for you to read as it is for me to write.
Laws, of course, can be completely irrelevant, so fast forward to 1954. The Supreme Court declares that if taxpayer money is funding schools, then the school can't discriminate by having a separate facility. Thus, not only can't you murder blacks (or whites), and not only can't you assault blacks (or whites), but if government hands out any kind of advantage, such as schooling, the blacks have to get that in equal measure as well.
In sum: Government can do lots of stuff, and it can sometimes help one group and hurt another, but not purely based on race. Ever. We don't care if Bubba hates the n****rs, but he better stay off the n****rs' lawn, keep his hands off the n****rs' person, and if he wants a government assistance program, the n****rs are on board too. Got it?
Up to this point, I think everyone reading this agrees we have human civilization advancing, without doubt, without question. Don't agree? Then get the f**k out of my essay, a******!
Or stick around, because what followed was an enormous, astounding leap backwards.
PUTTING OUT THE FIRE WITH GASOLINE:
In 1959, a black trucker in Georgia pulled into a roadside motel owned and operated by Bubba. The trucker was looking for a room, and Bubba said, "get off my lawn."
This was perfectly legal, of course. Since 1954, Bubba had a garage full of unused gasoline-soaked crosses and no lawns where he could legally place them. The only silver lining left from that evil 1954 Supreme Court was that everyone -including Bubba - had a right to keep others off his lawn.
So Bubba - although motivated by sheer hatred and ignorance - was simply asserting a basic human right. "My property - I say who visits." Blacks lived centuries without this basic right. There were quite a number of unwelcome vistors, some downright impolite, including faux-pas such as hanging, burning alive, and killing your family. Bubba had now refined his etiquette, and expected everyone to be polite.
The trucker, however, was none-too-happy with Bubba (understandably), so he filed a lawsuit. Soon he was in the Supreme Court, circa 1959. The Court correctly saw that nothing in the Constitution said that Bubba couldn't act like an ignorant prick as long as he did it on his own property. And the government was not involved in this at all. The state may not discriminate - and it hadn't. It's just two guys, and one wants to trespass.
But things had changed in the centers of power over 100 years. While the powers-that-be hated the "n****r" in 1859, 100 years later they'd understood what Bubba had wrought, and they hated him now, again, understandably, even justifiably. Unfortunately, hatred is a very bad basis for law.
The court ruled that forthwith, any person who offers a lodging to the public may not make distinctions as to whom they wish to deal with. Since no provision in the Constitution authorized such a radical leap, the Court reasoned as follows:
The Constitution allows the federal government to "regulate commerce among the states." If all truckers can't be assured of access to all hotels, this would interfere with interstate trucking (i.e., commerce). Therefore, all hotels may be regulated by the government.
All the rest of the brainless, foolish stuff flowed from this point, from the Orwellian-named "Civil Rights Act" (because it vastly reduced civil rights) to "affirmative action," an attempt at revenge-racism that convinced people that racism is just fine as long as the "right" people practice bigotry for the "right" reasons.
So back to the present.
EFFICIENT, A WORD WITH MANY MEANINGS:
Bigotry, discrimination, racism, call it what you like, remains a pretty good idea right now. Our foes - Islamic radical fundamentalists (actually "Islamist" is the proper term) are almost entirely Arab males. It is a ridiculous waste of resources to worry about the female half of the human race in investigating this group, because sending a woman on an important mission for them would be like entrusting it to their dog or their cow. And America's relative inability to infiltrate these groups has been, in part, because the network is composed primarily of kin and racially homogeneous males. That doesn't mean we completely ignore women or non-arabs in our security efforts (they would somehow exploit such a hole), but racial and sexual profiling is likely to be profoundly helpful against this enemy.
On the other hand, what are the consequences when government acts with race in mind? American blacks of late have come to refer to American slavery as a "holocaust." That's an entirely proper use of that word. Slavery, as I explained, was never a government program, but was instead a private criminal enterprise that the government failed to prosecute. The consequences of those private criminals were vast, and holocaust is a perfectly fair description of what they did.
The only intuitive problem with using that term is that the Nazis (and others) seemed to have almost defined it and made it their own. When discrimination based on race became a government program, rather than a private one, it seems to have taken on a virulence that made American slavery seem like...well, a lesser holocaust. It's truly impossible to measure the misery, humilation, and murder associated with America's two centuries (or more?) of slavery, but it's still a good bet that Russia and Germany dwarfed it all in just a few short decades.
In short, discrimination as government policy seems an awfully risky thing. 250 million people, not sent to work in fields, but just slaughtered outright, in a few decades. Legally.
NO CONTRADICTIONS, NO PROBLEM:
Stossel must be right. It's an impossible dilemma. After all, we simply must utilize race in our investigations, and only the government can do the job of protecting America from this new threat....or, perhaps that's not quite right. Which leads to our answer.
The fact is that protecting America's homeland is NOT primarily a government function. Never was, and shouldn't be. The government plays a role, for certain. And in foreign lands, it is the government's role exclusively. But at home, the Constitution was completely unequivocal that defense rested primarily with the citizens. The two obvious examples of this were the Second Amendment, with its guarantee that citizens could not be disarmed, and the Constitution's explicit prohibition upon use of the military at home. While domestic "police forces" exist in the form of FBI, DEA, BATF, and so on, you will find not a single one of them authorized in the Constitution.
If we could return to that Constitutionally-proper framework, the problem that so perplexes John Stossel and his various interviewees becomes manageable and non-contradictory. Consider the airlines: there is no authorization anywhere in the law for a federal role in anything the airlines do. Like any heavy industry, they ought to be fully responsible for their multi-million dollar equipment, keeping it secure from theft, and taking complete responsibility for any use which harms others which they could have prevented. Had this been so, airline security would have been very different on 9/11/01.
The government's role in national security - limited as it ought to be at home - must indeed be barred from engaging in profiling. Search everyone who enters the Pentagon equally? Yes. Can the cop on the beat pull over someone who looks arab in time of war? Not even then. Overseas, however, even the government owes no duty to be non-discriminatory; that is a duty owed only to U.S. citizens. And private agents at home - from armed individuals to gigantic security agencies protecting airlines, oil wells, tunnels and bridges, and industry - need operate under no such constraints, and should properly take any measures deemed most efficient to protect their concerns. That may properly include profiling.