Race, Liberalism and Backpacks

As this is my first experience in blogging, I approach this note with more than a little anxiety.  In particular, quickly putting together one’s thoughts on sensitive and complex subjects nearly assures all sorts of mistakes.

That said, among the topics of the day is the interesting conversation surrounding the beginning of random bag searches for portions of the New York subway.  Daniel Solove and Dave Hoffman have already begun an intelligent conversation here regarding the efficacy of such searches.  I have little to add to the topics they have already discussed; I largely share Solove’s suspicions that these measures will be ineffective and are largely cosmetic. 

One point they both set aside, however, deserves more attention.  Specifically, Solove writes, “Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random.  If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.”  This comment speeds by one of the most sensitive issues raised by, though obviously not limited to, these searches. 

I am particularly sensitive to this particular “cost”.  Like nearly all Black people, I am familiar with the impossible to describe feeling of being suspected, dismissed or belittled in numerous little ways due to one’s race.  To submit untold numbers of Middle-Eastern or South-Asians, as is likely in this case, to the same feeling and to transform New York into an officially sanctioned racial hierarchy, is a deeply offensive thought.  And so, we probably all are sympathetic to the Times editorial cautioning against allowing the violation of constitutional rights by targeting racial groups. 

That said, it is too much to ignore the potential tension between profiling and law enforcement effectiveness.  It is unknown to me how much racial profiling in this, and other cases that in the last few years have been brought to the fore, contributes to law enforcement effectiveness.  It is possible, perhaps even likely, that given the sheer number of any given group, the difficulty in intelligently identifying members combined with the low number of offenders, racial profiling has little or no effectiveness.  Because the benefit is trivial, any tension becomes negligible and our commitment to equal treatment and dignity means we obviously discard the profiling. 

However, the real test comes

where profiling can lead to greater effectiveness against a genuine harm.  It seems likely (though McVeigh reminds us not certain) that the next terrorist attack will come from a radical Muslim.  This at least introduces the tension raised earlier. Let us set aside, momentarily, whether one could intelligently identify Muslims, especially one in a city like New York who was committed to blending in, even while acknowledging that this issue may be dispositive.

We can imagine a world in which our effectiveness of preventing attacks would increase by targeting those identified as Muslims.  Where then is the locus of our objection to profiling, whether the objection is Constitutional or on other moral grounds?  Further, is our objection subject to weighing or is it an (near) absolute ban?

Our objection, obviously, is not merely in the pragmatic harm caused.  This is true even where that burden rises to very high levels.  Nor does the intuitive answer, that one is being punished for who they are and not what they have done provide the complete answer.  Imagine that we found that we had preliminary evidence that Dutch citizens in New York were carry a virus dangerous to the general population.  Though the burden greater and the trait equally inherent, many more, I suspect, would be comfortable with the idea of a quarantine of the Dutch population of New York in such a case. 

The immediate observation will be that one action seems like quasi-criminal/police action or punishment, and the other, while burdensome, is not.  Without entering into the thick jurisprudence exploring the nature of punishment, this intuition seems to best capture our objection to subjecting a particular group to a form of police monitoring.  More subtly, it focuses on the difference in how the state regards its citizens in the two above examples.  In one example, the state’s quarantine of potential virus carries lacks the disapprobation of decreeing a portion of the population as potential terrorists or criminals.  It is both what the action communicates about and how the state treats its citizens which is critical.   For the state to officially decree that one group of citizens ought to be treated as potential criminals, even where there may be factual reason to do so, is an attack on a citizen’s equality and dignity we are loathe to bear.

So it is obvious that it is not the burden itself but rather the nature of targeted searches that makes them objectionable.  The tension which tests this commitment is our commitment to equality is at odds with more effectively acting, in this case, more effectively preventing another terrorist attack.  Is our commitment to equality absolute or does it allow for some measure of weighing? And if we must weigh this commitment and in some cases surrender it, has our commitment to liberalism failed?

It bears repeating that I do not support targeted searches on the New York subways.  As mentioned above, the benefits are almost certainly too trivial to sacrifice such a deeply held value.  Further, in nearly all cases, there seems to me ways of balancing both effectiveness and our concern to equality, even if at the cost of greater resources.  This illustrates that the weight we give to a citizen’s claim of equality is so great, it commands great deference before it is set aside. 

Still, I cannot be certain that our commitment is one that does not allow for any weighing.  There must be certain situations where the perfect storm of circumstances may require the imposition of unequal treatment of some in order to respect the claim to equal consideration by others; in this case for their safety.  Without knowing the details (a dangerous platform from which to continue) border searches of suspected attackers in high-risk zones (Israel comes immediately to mind) does not immediately appear illegitimate. 

What then does this mean for our concept of the state’s duty of equal respect and our commitment to this liberal ideal?  Political philosophers, notably Kymlicka, have struggled with this question.  I once suspected that where a society was forced to surrender portions of their basic liberal commitments, in this case, the equal treatment of all citizens, the liberal experiment had failed.  My position has since changed.  It occurs to me that if a society, committed to its liberal commitments, surrenders only the smallest necessary portion in order to ensure the survival of the society itself, its liberal nature is not erased.  Rather, it has simply reached those outmost bounds of its liberal ideals possible at the time.  The charge, of course, is the continual examination that each inch surrendered is absolutely necessary, and the relentless drive to realize, as early as possible, those liberal ideals we hold dear.