Racial Profiling and the Constitution
![handle is hein.journals/uchclf2002 and id is 167 raw text is: Racial Profiling and the Constitution
Albert W. Alschulert
Until September 11, 2001, almost everyone condemned racial
profiling. President Bill Clinton called the practice morally inde-
fensible and deeply corrosive.' President George W. Bush
pledged, [W]e will end it.' A federal court observed, Racial pro-
filing of any kind is anathema to our criminal justice system.' 81
percent of the respondents to a 1999 Gallup poll declared their
opposition.4
The horror of September 11 produced a shift in sentiment.
Shortly after that date, 58 percent of the respondents to a Gallup
poll said that airlines should screen passengers who appeared to
be Arabs more intensely than other passengers.' Half the respon-
dents who voiced an opinion favored requiring people of Arab
ethnicity, including United States citizens, to carry special identi-
fication cards.6 Blacks were more supportive of special scrutiny
t Wilson-Dickinson Professor, University of Chicago Law School. I am grateful to the
Carl S. Lloyd Faculty Fund and the Lawrence T. Hoyle, Jr. Faculty Fund for research
support and to Roberta Anthes, Mary Anne Case, Jeffrey Fagan, Debra Livingston, Tracey
Meares, Eric Posner, Stephen Schulhofer, Adrian Vermeule, Lu-in Wang, and Welsh
White for insightful and helpful comments.
Randall Kennedy, Suspect Policy, New Republic 31 (Sept 13-20, 1999).
2 Address to the Joint Session of Congress by the President, reprinted in 147 Cong
Rec H433 (Feb 27, 2001).
Martinez v Village of Mount Prospect, 92 F Supp 2d 780, 782 (N D 111 2000).
Attorney General John D. Ashcroft said, I believe racial profiling is an unconstitu-
tional deprivation of equal protection under our Constitution. Black Caucus, Ashcroft
Have Tense Meeting: Attorney General Cites Candid Exchange and Stresses Agreement on
Profiling, Wash Post A6 (Mar 1, 2001). The Director of the Federal Bureau of Investiga-
tion, Robert S. Mueller, agreed: Racial profiling is abhorrent to the Constitution, it is
abhorrent in any way, shape or form. Quoted in 147 Cong Rec S8683 (Aug 2, 2001). Sena-
tor Orrin G. Hatch commented, T]here has emerged a consensus concerning the funda-
mental point of the debate: racial profiling, also known as bias-based policing, is wrong, it
is unconstitutional, and it must not be practiced or tolerated. End Racial Profiling Act of
2001, Hearing on S. 989 Before the Senate Committee on the Judiciary Subcommittee on
the Constitution, Federalism and Property Rights, 107th Congress, 1st Sess (2001), avail-
able online at <http://www.senate.gov/%7Ejudiciary/oldsite/oghO8OlOlsc.htm> (visited
Nov 30, 2002) [on file with U Chi Legal F].
4 Katheryn K Russell, Symposium: Racial Profiling: A Status Report of the Legal,
Legislative, and Empirical Literature, 3 Rutgers Race & L Rev 61, 62 n 5 (2001).
6 Clinton, Race Issues Top First Day for High Court, Houston Chron 4 (Oct 2, 2001).
6 Id.
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