Whren's Flawed Assumptions Regarding Race, History, and Unconscious Bias

Abstract

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.

Keywords: racial profiling, race-based pretextual stops, racial discrimination, equal protection doctrine, Whren, civil rights, Fourth Amendment, Fourteenth Amendment, Thirteenth Amendment, constitutional remedy, badges and incidents of slavery, unconscious bias

JEL Classification: K14, K19, K39, K42, K49, D63, J71, J78