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February 9th, 2001

  Racial Profiling: A Rejoinder to Roger Clegg

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[I wrote a piece titled "The Case for Racial Profiling" in the February 19th print version of  National Review, which was available a couple of weeks before. ( NR, like most magazines, bears a date considerably later — about seventeen days in NR's case — than that of the day it is actually printed.) This drew a response from Roger Clegg, general counsel of the Center for Equal Opportunity in Washington, D.C. NRO published Roger's piece on the webzine, and invited me to post a rejoinder the next day. This is what I wrote. Unfortunately, it was too long for the webzine: the webmaster threatened to commit seppukku, and I had to cut it down from 2,800 words to 1,200. The text here is the full version.]

I appreciate Roger Clegg's taking the trouble to read my article "The Case for Racial Profiling" in the print National Review, and his thoughtful response to it. The editor suggested posting Mr. Clegg's response on our web site, followed by my comments about it. I was very glad to agree to this. This is an important issue, and there can never be enough calm, reasoned debate about it. There can, of course, very soon be enough — there is already way too much! — yelling, posturing and intimidating about racial profiling, and other race issues.

Mr. Clegg's response contains two things I want to react to: first, an analogy between racial profiling and "affirmative action" in college admissions procedures, and second, a statement of support for Randall Kennedy's view that racial profiling, even if reasonable and useful, is morally wrong and socially inflammatory. I shall take them in order.

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In bringing up "affirmative action," anyone on either side of the racial profiling debate is moving into challenging terrain. At first glance, it is difficult to see how you can be for the one thing but against the other. If "affirmative action" is OK, why isn't racial profiling? If racial profiling is OK, what's your beef with "affirmative action"?

The difference is in intent. What is the actual intent of those who promote "affirmative action"?

This is an interesting question all by itself. "Affirmative action" was first sold to the American public (in so far as our elites bothered with any marketing at all) as redress for past wrongs. However, s ince neither the person being advantaged by "affirmative action" nor the person being disadvantaged is actually a participant in any identifiable wrong, there has always been something spurious about this justification. Furthermore, it leaves open the uncomfortable question: How long shall we have to practise "affirmative action" before the wrong has been completely redressed? — a question which, of course, nobody could answer, and which, in fact, the fuglemen of "affirmative action" were, and still are, very unwilling to have asked in public.

In response to these defects in the moral foundations of "affirmative action," those who support the practice have stealthily moved those foundations. More often than not, we are now told that the purpose of "affirmative action" is to enrich our souls by exposing them to "diversity." While the redress of past wrongs is not much heard of now, there is hardly a college in the United States that does not boast, in its promotional material, of possessing a "diverse campus," and promise great spiritual benefit to students who "embrace" that carefully-engineered "diversity." After another ten years, perhaps, when the cant about "diversity" has been sufficiently ridiculed (and an entire generation has passed through the experience of eating in a college cafeteria where the black students all sit at their own tables), the "affirmative action" propagandists will be pushing some other rationale. In the meantime, I ask the reader only to notice that "affirmative action" is a practice with very insecure moral foundations, very doubtful benefits, and very shifty proponents.

Racial profiling, by contrast, has always had one consistent, clear justification: that crime is highly race-specific, with different ethnic groups favoring — sometimes actually monopolizing — different kinds of crime. And the benefits of racial profiling are equally clear and indisputable, as even Randall Kennedy is obliged to admit: when it is practised, more criminals are apprehended, and the rest of us are less likely to be robbed, assaulted, raped or killed, or to see our children lured into drug addiction. To move from "affirmative action" to racial profiling is to pass from heaven to earth, from the airy æther to the realm of stone and flesh, from abstract and unverifiable theories of collective guilt, atonement and "enrichment" to the greasy realities of human misbehavior. The two things do not belong in the same argument. They barely even belong on the same planet.

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The second point — Randall Kennedy's view that racial profiling, even if reasonable and useful, is morally wrong and socially inflammatory — is much more impressive to me. Randall Kennedy's essay on this topic is, in fact, a very impressive thing altogether. I did not have space to do justice to it in my print article, and have not here either, so I urge anyone interested in this subject to seek out the essay and read it for himself. I do not see how a better case against racial profiling can be made, and anyone who wants to defend the practice, as I do, must show why Prof. Kennedy is wrong. Where arguments against racial profiling are concerned, Kennedy is the gold standard.

Unless you are an adherent of one of the more demanding religious confessions, the essence of moral wrong — the lowest common denominator essence, I mean, that all modern people can agree on — is the wish to harm, or at the very least to vex, somebody else. That is really what underlies the case against racial profiling: the conviction that policemen who preferentially detain black people do so because they bear ill will towards the black race. They want to keep us down, the way they used to. Racial profiling is a manifestation of white racism — that is the heart of the matter.

I had better say right now — Mr. Clegg might want to sit down for this one — that I do not believe in white racism, except as a fringe phenomenon at the very bottom of society. Yes, white Americans used to keep black Americans down, though this should never be said without noting that very large numbers of white Americans were always unhappy with the arrangement. That, however, was then, and this is now. Like promiscuous smoking, though much more effectively and thoroughly, the malice that many white people felt toward blacks has been almost shamed out of existence in the past forty years. I have been living in the United States for fifteen of those years, mainly among white Americans. I have known several hundred white Americans, of all ages and classes (and including a handful of policemen), well enough to say confidently that I don't believe a single one of them bore any ill will towards black people.

The following statement is true, as best I can judge, of every white American I have ever known: He would be happier in himself, and would feel better about his country, if the statistical profiles of black American lives and behaviors were identical with those of whites. The fact that they are not, is distressing to everybody I know, though of course in very varying degrees.

There are many opinions about the reasons for those statistical differences. Quite a lot of white Americans, unlike me, believe in the reality of white racism as a major social force. Many, on the other hand — a fast-growing number, it seems to me — believe that there is some deep, intractable, and presumably biological reason why persons of West African descent or part-descent do not (statistically speaking) do well in our society. Whatever you might think of this belief, I can tell you for sure that when it fixes itself on a white person's mind, it does not induce glee: Great! This means we'll be able to keep them down for ever, the way we used to! What it induces is despair: Oh God, we're stuck with this damn race thing for ever! White Americans do not want a race-divided society. There is hardly anything they want less.

Suppose I am right — as, of course, I think I am — in believing that white racism is a vanishingly insignificant phenomenon in current American life. What then happens to Randall Kennedy's argument from morality? It seems to me that it collapses, for it is based on the belief that without enforced, supervised restraints, the racism of white policemen will bubble up irresistibly, causing them to commit wrongs against black people. If that racism does not exist, except very occasionally, how can the restraints be justified, when their effect would be, as Kennedy admits (while, as I argued in my print piece, seriously under-estimating this effect) socially negative? If white policemen pulling over black motorists mean no harm, and restraints on them doing so will greatly increase crime — a very harmful thing to its victims — where is the point of moral balance? Kennedy suggests we restore that balance by hiring more policemen. This does not sound to me very sincere, or very convincing.

But what about "socially inflammatory"? Even if policemen are not acting immorally in preferentially detaining black people, is the anger and resentment of black people worth it? That's a big social negative by itself, isn't it? Yes it is, but I don't see what we can honestly do about it, other than keep trying to show that police procedures are reasonable, and correcting them if they are not. If a reasonable and useful policy makes people unreasonably angry, I personally would stick with the policy and work on the people … Though, reading back over that last sentence, I do see that is the kind of assertion that might cause a professional politician to double over laughing.

And where the police have not been reasonable, where there has been a real injustice — where it can be shown that a person has been inconvenienced for no other reason than his race — current laws already provide sufficient remedy. Certainly our citizens seem to believe they do: they are suing police departments for racial profiling malfeasances left, right and center. Let me introduce you to Mr. Robert Hluchan, for example, a white driver pulled over in a black neighborhood of Philadelphia and made to stand handcuffed for 20 minutes while cops strip-searched his BMW. He has filed a lawsuit against that city for racial profiling. The police thought he was cruising for drugs; in fact he was visiting his girlfriend, who is black.

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There is one more point I would submit for Mr. Clegg's consideration. The strongest reason I can offer for my support of racial profiling — to be precise, of the status quo in police procedures, which I assume includes some racial profiling — is this one: I do not want to see any more racial monitoring in our society. There is far too much of it already, from the Bureau of the Census on down through "affirmative action" and those insolent little forms I am required to fill in for the Department of Labor, specifying the racial breakdown of my workforce (which actually numbers … one). A ban on racial profiling will add another layer of pigeonholing and classifying to all this. "[O]ne can reject racial profiling without requiring racial quotas for arrests," Mr. Clegg assures me. Does he really believe this? How can racial profiling actually be banned without race monitoring? And where has race monitoring ever been brought in without it ending in quotas? You can, in theory, run "affirmative action" college admissions procedures without using quotas. Yet every time college admissions procedures are actually prised open up for examination (a very large crowbar is required to accomplish this, by the way), it turns out they are using quotas. Every damn time.

So it would be with a ban on racial profiling. Mr. Clegg quotes the Washington D.C. police chief's objection that: "If I've already stopped two black men on a particular evening, I may be reluctant to stop a third, even if it would make sense to." Who can doubt, on our past experience with these issues, that this is exactly what a ban on racial profiling would come down to? These things always start with reasonable, moderate proposals like Mr. Clegg's. They end with absurdity, endless litigation, and, yes, injustice. We have learned, to the sorrow of many of us, that these initiatives to enforce a spotless egalitarianism by dint of social engineering are always the thin end of a wedge, whose thick end is ugly, undesirable, anti-social, and more socially divisive than the wrong that was supposed to be remedied. I was as keen as anyone to see a decent tolerance extended to homosexuals. Now they are lobbying the U.S. Supreme Court for the "right" to take my son into the woods on a camping trip. All things considered, I would prefer that we had left things as they were.

I doubt Mr. Clegg and I will ever agree on any more than we do agree on (which, as he says, is actually quite a lot). This is because, most fundamentally, we have two different definitions of "color-blind." In his view, a color-blind America would be one in which race was the very fulcrum of all social policy. In his color-blind America we should, in order to execute any social transaction, first have to pass through a turnstile (I am speaking metaphorically), at which our racial classification would be logged. The statistics thus gathered would be continuously analyzed to ensure fairness — "color-blindness."

That vision seems to me — and I don't intend any offense — a horrible nightmare. Perhaps it looks different if you are a lawyer. My own vision of a color-blind America is one in which race is no big deal. I'd just like to see America stop obsessing about the wretched thing. I think most white Americans feel the same. I watched the O.J. Simpson verdict at my place of work, a Manhattan office staffed by middle-class Americans. There were about a dozen of us in the room, none, as it happened, black. When the verdict was announced, of course everybody groaned. The lady next to me, aged mid-30s, said, in tones of exasperation: "For goodness sake! I thought we'd gotten away from all that."

Mr. Clegg might say that we can't get away from it because too many black Americans are still stuck at the bottom of our society. Indeed they are: but it seems to me wrong, and malicious in itself, to attribute widespread black failure to "white racism." How is a 69 per cent black illegitimacy rate, from which so many evils flow, the fault of white America? Can someone please trace for me the chain of cause and effect there? (Slavery? Two generations ago, when we were much closer to slavery, the rate was far lower.) Where black Americans complete their education and marry before childbirth, they now do as well economically as white Americans who follow the same route; and contrariwise, white Americans who take the other route end up in the same swamp that the "black underclass" dwells in, or else on the Jerry Springer show.

This is a very fair society, a scrupulously fair society. I myself have lived and worked in two others, one of them run by communists: neither even came close to America in the matter of social justice. If you practise prudence and self-restraint, you can easily attain the good life in this country. If you don't, chances are you'll end up poor, or in jail. If you belong to an ethnic group that disproportionately misbehaves, you will be subject to occasional inconveniences in the way of police pull-overs, more than another person will. I can't see that this is unreasonable, and I can't see what harm is done. If there are grounds for anger in it, they are the ones expressed by Alan Keyes (one of the wisest men in America, in my opinion). It's no big deal. It is certainly preferable to Turnstile Nation, which is what waits at the end of the road that Prof. Kennedy and Mr. Clegg would like us to start down.

In Book One of his Treatise of Human Nature, the philosopher David Hume proves, by pure reason, that neither the material world nor our own minds actually exist. Reflecting on what he has done, near the end of the book he turns and laughs at himself.

This sceptical doubt … is a malady, which can never be radically cur'd, but must return upon us every moment, however we may chace it away … Carelessness and in-attention alone can afford us any remedy. For this reason I rely entirely upon them; and take it for granted, whatever may be the reader's opinion at this present moment, that an hour hence he will be persuaded there is both an external and an internal world …

The quest that the Kennedys and Cleggs are embarked upon is a quest for perfect justice. Hard to argue with that, you would think. Yet I beg them to consider the possibility that this quest, like Hume's dogged pursuit of pure reason, may end at last in absurdity and madness; and that the evidence that it will so end is already abundant; and that we might all benefit, at this stage of the proceedings, from a little benign carelessness and inattention towards the tiny fragments of unfairness that still exist in American society.