Profiling and the Constitution

Though racial and religious profiling offends our better feelings, it is nevertheless constitutional.

Racial and religious profiling reared its ugly head at the Republican presidential debate just before Thanksgiving. Asked whether this was a legitimate tactic in the fight against terrorism, former Senator Rick Santorum replied in the affirmative: “Muslims,” he said, “would be someone you’d look at, absolutely.” Conceding that they are not the exclusive perpetrators of terrorism, he nevertheless suggested that authorities need to profile in order to focus attention on “the most likely” potential transgressors.

Santorum’s remarks led directly and predictably to a chorus of disapproval holding that we ought not to trash the Constitution even in the pursuit of national security. This reaction is understandable. Such profiling is distasteful to Americans. It necessarily involves treating some people as objects of suspicion simply because of who they are, and so it offends our better feelings.

While one may sympathize with this reaction, however, one need not go all the way with Santorum’s critics and hold that profiling necessarily violates the Constitution and is therefore always off-limits to American public officials charged with protecting the nation from attack. Not everything that offends our better feelings is unconstitutional, and not everything distasteful is to be unconditionally forsworn as a tool of national security.

Our inquiry must begin from whatever provisions of the Constitution plausibly may be held to prohibit racial and religious profiling. This is actually not as simple a matter as one might think. The most obvious place to turn in search of a constitutional prohibition on profiling would be the Equal Protection Clause of the Fourteenth Amendment. By its terms, however, that provision applies only to the states. Presumably, the opponents of profiling would not be satisfied with a principle that constrains only state law enforcement officials while leaving their federal counterparts completely free to use race and religion as factors in deciding whom to scrutinize as a possible terrorist.

Fortunately for such opponents, the Supreme Court already has rejected such a disproportion. Unable to tolerate the possibility that the Constitution prohibited racial segregation undertaken by the states but not by the federal government, the Court has held that the Due Process Clause of the Fifth Amendment, which restrains the federal government, contains an “equal protection component.” Guided by this interpretation, we must ask, then, whether the wording of either the Equal Protection Clause or the Due Process Clause forbids profiling.

The Equal Protection Clause provides that government shall not “deny to any person within its jurisdiction the equal protection of the laws.” Does profiling violate this principle? The case that it does is not as powerful as it first appears. To be sure, a law that enacted classifications detrimental to some classes of citizens would be highly suspect. Profiling, however, creates no such issue. Even the most vehement proponents of profiling do not hold that it should be written into the laws; nor, for that matter, need it even be presented as any kind of standing, formalized government policy.

It is rather a matter of executive discretion, a limited decision of law enforcement officials to give greater investigative scrutiny in circumstances where they think there is greater reason for suspicion. The purpose of the exercise of such discretion is not to deprive anyone of the equal protection of the laws but precisely to afford everyone the laws’ protection. The aim is to catch terrorists before they can strike, with the effect of preserving the lives of everyone who might have been killed or injured, including innocent persons who were subject to investigative profiling.

Does such profiling violate the Due Process Clause? Certainly those who are subjected to profiling have something done to them by the government without due process of law. The decision to profile is a matter of executive discretion, a mode of decision-making far removed from anything resembling the formal inquiry implied by “due process.” Again, however, the due process case against profiling crumbles upon closer examination. The Due Process Clause does not require due process of law to precede every unwelcome attention of the government. It rather provides that “life, liberty, and property” may not be taken without due process of law. Persons subjected to profiling are certainly not deprived of life or property on that basis. No respectable voice in America’s public discourse has suggested anything like the idea that people should be convicted and sentenced on the basis of their race or religion.

Those subjected to profiling are not deprived of liberty in any sense serious enough to make a violation of the due process clause. No proponent of profiling would call even for the arrest of anyone simply on the basis of their ethnicity or religion. The most that profiling would involve is more careful investigative scrutiny, usually at security checkpoints related to the public safety, as at airports. Such heightened scrutiny cannot reasonably be viewed as a deprivation of liberty. If it were, then it would be equally unconstitutional to do it to anybody, even at random. Hardly anyone, however, would contend that the Due Process Clause prohibits random application of more thorough searches at airport security.

Any approach that is properly deferential to executive discretion would not find that limited profiling violates the Constitution. Critics of profiling might respond by pointing out that when the Equal Protection and Due Process clauses are arguably involved, the Supreme Court is in a mood to be anything but deferential. The Court instead takes a very dim view of any government actions that create “suspect classifications.” It insists that they be subjected to “strict scrutiny,” meaning that a heavy burden of proof for justifying them falls upon the government.

Even bearing this in mind, it does not follow that profiling necessarily would be held by the Court to violate the Constitution. Even under strict scrutiny, the Court has upheld government policies using suspect classifications. In 2003, for example, the Court affirmed the constitutionality of the University of Michigan Law School’s policy of race-conscious affirmative action. Under strict scrutiny, the government must demonstrate a compelling interest to justify its action. In the Michigan case, the Court held that the state’s desire to secure the educational benefits of a diverse law school class constituted a sufficiently compelling governmental interest to justify its race-based policy. It would be strange indeed if the Court, holding to that proposition, nevertheless claimed that investigative profiling, which is undertaken to protect the nation against violent attack, serves no compelling state interest.

None of this is to say that profiling is a good thing. Governments should not undertake it lightly, and citizens should not tolerate it tamely. It is not even to say that it is generally a useful expedient for protecting public safety. Even some of the most earnest proponents of domestic security hold that profiling is not very helpful. Nevertheless, those who claim flatly that it is unconstitutional are saying that it is simply impermissible in any circumstances. This goes too far.

It is not difficult to imagine a case in which the government has reliable intelligence that a certain kind of attack is being planned by persons of a certain ethnicity or sect. In such a circumstance, it would be a dereliction of duty for those charged with public safety not to weigh such information and to investigate accordingly. Whether and how to do so is a judgment of prudence that belongs in the first instance to those entrusted with the nation’s security. The Constitution does not utterly forbid such exercises of executive discretion.

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