Quakers, Slaves and the Founders: Profiling to Save the Union
73 University of Mississippi Law Journal 369
54 Pages Posted: 4 Aug 2017 Last revised: 7 Aug 2017
Date Written: 2003
Racial and religious profiling is inconsistent with a fundamental Fourth Amendment doctrine. In most circumstances, law enforcers must possess fact-based, particularized suspicion before they can seize or search a person or property. ‘Racial profiling, "the invidious use of race or ethnicity as a criterion in . . . law enforcement, violates that rule.
Without more, a person's race, religion, ethnicity or alienage cannot supply the factual basis for a constitutional search or seizure. No logical relationship exists between any of these characteristics and the commission of crimes.
Yet searches and seizures based upon these impermissible grounds occur, and the phenomenon is not new. Constitutional history provides provocative examples of racial and religious profiling in every century of the nation's existence. The examples of "profiling" discussed in this article originated with the Founders.
The first example occurred during the Revolutionary War, when the Congress authorized the seizure and lengthy incarceration of Quakers suspected of being British sympathizers precisely because they were Quakers. These individuals were seized without any showing that they were aiding or even supporting the enemy, and no hearing was ever held (either before, during or after the incarceration) to determine the validity of these seizures. Their captivity ended, in part because the immediate military crisis ended, in part because of incessant agitation by the captives, their families, friends and supporters, and in part because many Revolutionary leaders worried about the long term consequences of allowing seizures without proper justification.
The second example, laws justifying the seizure of people alleged to be runaway slaves, originated with the political compromises that preserved slavery in the original constitutional scheme, compromises justified by the exigencies of the time and the hazards of nation building. The Framers included the Fugitive Slave Clause in Article IV of the Constitution, and the Second Congress enacted the Fugitive Slave Act of 1793, which authorized slave owners to recover their human property. Efforts to recover fugitive slaves generated the crudest forms of racial profiling, as well as opposition to slave catchers, particularly in border states.
One by-product of resistance to was the Fugitive Slave Act of 1850, an even more odious statute that was an essential element of the Compromise of 1850, the historic congressional attempt to resolve with political means the intractable national crises flowing from slavery. The 1850 statute was necessary, its proponents argued, to preserve the United States from dissolution, and perhaps from civil war.
Both the seizure of Quakers during the Revolution and the enforcement of laws permitting seizures of blacks alleged to be runaway slaves were justified as necessary responses to threats to the very existence of the nation. As a result, these early examples of what we would label today as religious or racial profiling have implications for the current debate about profiling in the “war on terror.”
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