When Deliberately Broad Tailoring Becomes “Narrow”

Another brief note in a busy week!

To some disappointment, Obama recently caved to demands for racial profiling, by requiring that all travelers from identified nations (e.g., Yemen) submit to special screening. Fairly stated, this isn’t racial profiling — it’s profiling based on nation of origin which, while worrying, is substantially broader than racial profiling, and thus less dependent on discriminatory (and often incorrect) notions of “what a terrorist looks like.”

This development actually demonstrates a bizarre quirk of equal protection law — the answer to a discriminatory policy isn’t always to eradicate the policy. Sometimes it’s to “equalize up,” expanding a repressive regime to cover everyone. Instrumentally, this isn’t a desirable solution, but it’s one that, in more invidious situations, the law is often powerless to stop.

When we speak of equal protection, we most often refer to “formal equality” (the law should apply equally) rather than substantive equality (the law’s effects should be equal). Myopic focus on formal equality often blinds the judicial branch to the effects of discriminatory policies — as when, in 1971, the town of Jackson, Mississippi responded to demands to integrate its public pools by simply closing its public pools. All of them.

The Supreme Court found this blatantly racially-motivated decision to be constitutional (Palmer v. Thompson, 403 U.S. 217 (1971)). Justice Douglas’ dissent tries to say why the decision is legally wrong, but the conclusion is visibly strained:

May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age. Yet is there anything in the Constitution that says that a State must have a public school system? Could a federal court enjoin the dismantling of a public school system? Could a federal court order a city to levy the taxes necessary to construct a public school system? Such supervision over municipal affairs by federal courts would be a vast undertaking, conceivably encompassing schools, parks, playgrounds, civic auditoriums, tennis courts, athletic fields, as well as swimming pools.

My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. Such is also the right to marry.

He’s clearly morally right, but he lacks the legal ground to make the conclusion. The Ninth Amendment, unfortunately, is a non-starter. The answer — focus on the municipality’s decisionmaking process, identify the discriminatory motive, and condemn it — is harder here than it proved in other cases. When defendants in equal protection cases fight the courts by “equalizing up,” there’s not a lot we can do.

Obama’s new profiling policy is obviously not like the famous pool case. He’s struggling to avoid discrimination, and even though his policy burdens more people than it needs to, so would any profiling policy. At least this one actually contains a semblance of logic.



  1. Why are our anti-terrorism policies so fucking reactionary?

  2. Because they always have been :(

  3. DickTurpis · ·

    Haven’t we always treated travelers and immigrants differently depending on what country they are from? For some nations a special entry visa must be applied for, while for some you only need a stamp on a passport upon arrival (if that). Until recently, I believe, crossing from Canada didn’t even necessarily require a passport at all. Whatever one thinks of this policy it seems to me it isn’t a great departure from previous practices, in the sense that there has never been a rule that we treat citizens from every nation the same. Or am I missing something?

    1. Ture, we have, but the undelying assumption here is that we can and should profile across national boundary lines with a focus on ethnicity and religion as markers. So instead of treating all Yemeni’s one way and all French people another, we’re talking about treating all Muslims one way and all Christians another. Same technique; different (and IMHO more damaging) impetus.

  4. My understanding was that the countries of interest made the list because of (perhaps perceived) flaws in their airport screening processes, not the nature of their citizens.

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