November 2001 

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President's Page Headline

Second-Class Americans?

by Jarvis C. Jones

What are your bar leaders thinking? View our archives of President's Page columns.

"Our progress in degeneracy appears to me to be pretty rapid. As a nation we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except Negroes.' When the Know-nothings get control, it will read 'all men are created equal, except Negroes and foreigners and Catholics."
Abraham Lincoln,
Letter to J.F. Speed, August 24, 1855.

To racially profile or not to profile continues to be one of the nagging and difficult questions of the day. According to recent polls, 66 percent of whites and 71 percent of African-Americans support the ethnic profiling of individuals who look to be Arab. Unfortunately, there are also countless stories of Arabs and Arab-Americans being singled out for "suspect" (criminal) treatment based on nothing more than their physical features and attire. Worse yet, the United States Justice Department has opened over 170 investigations into hate crimes again Arabs, including killings, shootings, and arsons.

In these troubling and dangerous times we, as a society, must implement very strong measures and safeguards to protect our borders, our institutions, and ourselves. Even our cherished civil liberties that make us such a great nation must be carefully weighed and balanced against the utmost need to protect this nation and its people.

Understanding the gravity of these choices, we, as lawyers, have historically often been called upon to protect the civil liberties of the disenfranchised and the unpopular. As society struggles with the racial profiling issue, we, as lawyers and as a profession, must ask ourselves a hard question: Do we have a societal role and responsibility in helping define this issue and also in ensuring that all Americans, including Arab-Americans, have equal rights to equal protection under the Constitution? Or, are we to close our eyes and blindly allow an unpopular ethnic group to become America's new second-class citizens with limited rights under the Constitution?

The primary difficulty I have in stomaching racial profiling as a policing tool is that it is in no way a rational and proportionate response to our very real and rational fears about terrorism. Instead, it creates a false sense of security. As lawyers, we are trained to dispassionately analyze the facts. Some of the facts are that all of the individuals involved in the hijacking on September 11 were Arabs and came from certain geographical regions of the world. Not only should we not ignore these facts, I believe the government should and must include these facts along with other "predictive indicators" in a profile of individuals likely to be engaged in terroristic acts. I fully support our government doing such.

However, as lawyers, we should not kid ourselves into believing that the government's reasonable use of multiple "predictive indicators" in profiling terrorists is remotely the same as "racial" profiling as it is being applied today on Main Street all across America. By definition, racial profiling is treating someone first as a "suspect," based solely on the fallacious belief that their race, ethnicity, and/or religion alone is a sufficient predictive indicator of potential criminal behavior and then thereafter denying them equal treatment and protections under the laws of this land.

In order to accept ethnic profiling of all Arab-Americans as a legitimate policing tool, we must also assume that all or a significant number of persons with Arab blood in their veins have a proclivity for terrorism. I have yet to see any facts that remotely suggest that if you are born an Arab and/or Muslim, you are predisposed, genetically and/or socially, to commit terroristic acts. Without there being even a scintilla of facts to support such an uninformed proposition, we as lawyers should oppose any proposition that would treat each and every Arab in this country as a "suspect" based solely and exclusively upon that person's religion or ethnicity.

When I was a kid growing up on the streets of Chicago in the '60s and early '70s such generalizations were referred to as "racial stereotypes" and we were taught that acting on them constituted "prejudice" or "racism." Today, we call it racial profiling. Quite frankly, it still has the same stench and odor as when I was back on the streets of Chicago. The only different now is that it has a more politically correct name.
Justice Murphy's dissenting opinion in Toyosaburo Korematsu v. United States, 323 U.S. 214(1944), the U.S. Supreme Court case in which the Court supported the military's decision during World War II to place all Japanese-Americans in internment camps based upon their race, sums up quite well why we as a nation should avoid repeating our history of treating other Americans as second-class citizens:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Jarvis Jones

JARVIS C. JONES is president of the Minnesota State Bar Association. An attorney with experience in business and in private practice, he now serves as an executive with the St. Paul Companies, where he is responsible for a new start-up business.