A Thirteenth Amendment Framework for Combating Racial Profiling
77 Pages Posted: 23 Sep 2011
Date Written: 2004
Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.
Racial profiling is not only a denial of the right to equal treatment, but also a current manifestation of the historical stigmatization of all African Americans as predisposed toward criminality. This legally enforced stigma arose out of, and was essential to, slavery and the social structures necessary to maintain slavery. Courts have wrongly divorced the modern practice of racial profiling from its historical roots and instead focused solely on the subjective intent of individual police officers in discrete cases. By doing so, courts have misunderstood and undervalued the injuries inflicted by racial profiling; failed to acknowledge the systemic, historical bases of racial profiling; and failed to provide effective relief. The Thirteenth Amendment provides both courts and Congress with the authority to remedy this legacy of inequality arising from the slave system in the United States.
Keywords: Thirteenth Amendment, badges and incidents of slavery, race, civil rights, racial profiling, Jones v. Alfred H. Mayer Co., Fourth Amendment, Fourteenth Amendment, equal protection, Equal Protection Clause, sole motive, United States v. Avery, slavery, abolition, stigma, Whren v. United States
JEL Classification: K00, K19, K39
Suggested Citation: Suggested Citation