Moral Reasoning 22: Justice

Moral Reasoning 22: Justice

Moral Reasoning 22: Justice

Is it wrong for law enforcement officials to use racial, ethnic, or religious profiling in deciding whom to search in airports, train stations, and subways? ©

Is it wrong for law enforcement officials to use racial, ethnic, or religious profiling in deciding whom to search in airports, train stations, and subways?

The question at hand represents a duality of thought that is at the core of western liberal democracy, and it is a question that - in one form or another - has arisen countless times throughout our legal and societal history. The question is simply this: where precisely does the proper balance lie between individual freedom and collective security? The present question has some specificity because it is related to current sociopolitical events on a global scale: the reality is that worldwide terrorism, particularly and specifically terrorism originating from an extremist form of radical Islam, has become a significant concern for every western democracy, a concern that embraces both legal principles and national security issues. The simple truth is that there are groups of people, allied by common political, religious, and cultural beliefs, that seek to do harm to Americans, to western Europeans, to Israelis, and to almost any society that does not subscribe to their specific strain of Islamic fundamentalism. This is the reality; without acknowledgement of this reality, no meaningful debate on the security versus liberty conundrum can be held. While the legal, constitutional issues involved in deciding whether in light of this reality to permit racial and ethnic profiling are complex and clearly debatable, the reality of the situation cannot be disputed without resorting to disingenuousness. Ultimately, however, the question cannot be resolved with a simple yes or no; instead, a balancing test is required, a sliding scale of how much death and pain we are willing to endure to uphold our freedoms, and how much liberty we are willing to sacrifice to protect ourselves and our society.

There is an apropos and often repeated quote, attributed to Benjamin Franklin, that attempts to frame the issue - but does so only with partial success. "Those that sacrifice liberty for security deserve neither," Franklin reportedly wrote, but his premise establishes a false dichotomy; it seems to suggests that there can only be liberty or security, rather than the reality - which is that these must always be balanced against each other. Some measure of liberty is always sacrificed for some measure of security: everything from seat belt laws and speed limits to gun control and hate crime legislation all infringe upon our individual freedoms for the sake our collective security. On those issues, we have decided as a culture where the balance should lie, how much we are liberty we are willing to give up to protect our lives and our families. The only difference between those issues and the present issue is in degree and constitutional specificity; in other words, permitting governmental action that discriminates according to race is a significant abrogation of liberties - but it must be balanced against the equally significant benefit of protection from terrorists intent on chaos and mayhem.

The debate absolutely must begin with a realistic assessment of the threat. The attacks of September 11, 2001, are often referred to as a "wake up call," but the reality is that these terrorists, almost exclusively Islamic Arabs or South Asians, declared war on the West at least two decades ago, and have been working to destroy liberal democracies ever since. There have been thousands of terrorist attacks, bombings, murders, beheadings, kidnappings, and assaults in the last quarter century, committed by Islamic fundamentalists, perpetrated against Americans, Europeans, and Australians. Just the list of the most well-known, spectacular and destructive of these attacks is deeply troubling: these include the Iranian hostage crisis of 1979, the TWA high-jacking in 1985, the high-jacking of the Achille Lauro in 1985, the Berlin disco bombing of 1986, the destruction of Pan Am Flight 103 over Scotland in 1988, the first WTC bombing in 1993, the 1996 Khobar Tower bombings, the 1998 attacks on U.S. embassies in Africa, the 2001 attacks in New York and Washington, D.C., and the recent subway bombings in Madrid and London. All perpetrated by young male Islamic men, all fitting an almost identical profile - and these well reported cases are just the tip of the proverbial iceberg. There have been literally thousands of attacks just in the four years since 9/11, committed by individuals fitting this profile. Are there terrorists that do not fit the profile? Certainly - but they represent an infinitesimally small fraction of the worldwide total; in fact, non-Islamic terrorists are insignificant, at least as far as attacks against the United States are concerned. The question then is clear: with this reality acknowledged, how do we set that balance between security and liberty?

In his essay titled "A Shameful Hypocrisy," Colbert I. King highlights most of the arguments of those opposed to racial profiling as a counter-terrorism measure. But in doing so, he makes several predictable and logically fatal flaws. First, he clings to Franklin's inaccurate dichotomy that the choice that exists is between having only security and having only liberty; he fails to acknowledge the truth that almost every aspect of civilized society involves finding some balance between different measures of liberty and security. Second, he fails to acknowledge the concept that racial and ethnic profiling would follow common sense protocols rather than absolutes: the reality is that law enforcement officers would simply be permitted to use race as one of the factors in choosing which individuals to observe, search, or detain; King seems to imply that racial profiling would mean that all Arabs and South Asians - and any that look like them - would automatically be stopped, when this clearly isn't the case. Third, King makes the mistake of erecting several straw man arguments, positions that have clearly not been taken by those who support profiling, in order to exaggerate his own case. Finally, King's arguments falter in that he fails to acknowledge that many of the Constitutional actions he opposes are already being taken - but for purposes he most likely supports.

King's weakest argument is an attempt to turn conservative opposition to policies like affirmative action against their support of racial profiling. As King accurately notes, most conservatives argue that the fourteenth amendment prohibits governmental discrimination based on race - and that affirmative action should thus be unconstitutional. Ironically, it seems likely that King actually supports affirmative action and thus does favor racial discrimination - except in the cases of counter-terrorist profiling. But setting that aside for the moment, even if we assume that affirmative action is clearly unconstitutional, King errs in failing to note the difference in the government's interest in discriminating in this particular case. He is clearly making a relativistic judgment that, both constitutionally and morally, promoting diversity is the equivalent of protecting society against massive terrorist attacks. This argument is specious at best: while the government may or may not have an important interest in promoting racial and ethnic diversity, it unquestionably has a compelling interest in protecting the security and safety of American citizens. As has been demonstrated time and again in American jurisprudence, where the government has such a compelling interest, constitutional protections are routinely set aside. First Amendment protections do not extend to speech that incites violence, for example; similarly, Fourth Amendment protections do not extend to certain cases involving hot pursuit or exigent circumstances. The same principle applies here: if the government has a demonstrated compelling interest - and it so clearly does - it can take any measures necessary to meet that interest, assuming they are the least restrictive measures possible. King attempts to use straw man arguments to imply that racial profiling is not the least restrictive measure possible: he suggests that all Arab-looking people will be detained, that ultimately this policy will lead to mandatory registration, even to forced wearing of identifying clothing. Unfortunately for King's position, no one is suggesting any of these measures: all supporters are advocating is a policy that permits law enforcement to use racial appearance as one of many factors in choosing who to search.

In assessing the issue, however, the question that is asked is whether such profiling is "wrong" or not; here it is the question that is flawed. Wrong, how? Morally? Constitutionally? From a purely legal standpoint, racial profiling could be considered unconstitutional; it is indeed racial discrimination and thus is prima facie contrary to the fourteenth amendment - but then again, by that standard so would any of a host of governmental actions that consider racial status. Is it morally wrong? There is no question that racial profiling will inconvenience innocent citizens based solely on their minority status; yet that inconvenience, when viewed through a common sense perspective, seems rather minor when compared to the potential benefit to society.

The factual reality here is that law enforcement is seeking a policy that is practical, pragmatic, and based wholly on common sense; the current policy of ignoring the fact that we know exactly what the likely terrorists will look like is ludicrous at best and suicidal at worst. No one has suggested rounding up all Arabs in a way analogous to the treatment of the Japanese during World War II. All that has been proposed is permitting law enforcement to utilize common sense that a four-year old would understand: people are going to try to kill us, and they all look a certain way - and it might thus be rather wise to take a slightly closer look at people sharing those attributes, rather than randomly searching little old ladies in wheelchairs.

In his essay titled "It's the Age of Terror: What Would You Do?" Paul Sperry notes these common sense arguments, emphasizing a reality that appeals to the compelling interest principle: he notes that while random searches may be politically correct and appeal to the less important interest in protecting diversity, they are logically not going to be effective - thus they are not furthering a compelling interest. He implies that by failing to meet this critical burden, the government is not only choosing politics over pragmatism, but actually being negligent in its most basic duties to its citizenry. One of Sperry's most powerful arguments analogizes the issue to the manner in which insurance companies charge their clients: as Sperry notes, insurance companies discriminate every day, based on age, behavior, occupation, and other factors that contribute to the "probability of risk" faced by the client. This is discrimination in its purest form, but the insurance companies are forgiven because their motive is absolutely pure: they are insuring their own profit margin. Because their bottom line is, in fact, their bottom line, it behooves insurance companies to know exactly who is likely to face certain risks and who is not. The practical question to ask here then is simply this: how would an insurance company handle the issue? The answer is painfully obvious, and is again one any small child could grasp: the insurance company would assess the risks accurately and act appropriately.

Our government must do the same. There is no question here of abandoning liberty for security; instead, the only issue is finding the appropriate balance between the two. Law enforcement will not be permitted to unlawfully arrest those having a certain appearance; all they are asking is to be allowed to take that appearance into account when choosing who to search or observe. There is no question that there will be some minor infringement of liberties, but these serve a compelling interest, and the balance must be weighted - in a manner that is rational and appeals to common sense - in favor of protecting against those that wish to destroy us. Supreme Court Justice Robert H. Jackson is often misquoted as noting that "the Constitution is not a suicide pact." His actual words making this point, from his famous dissent in 1949 free speech case of Terminiello v. Chicago, read as follows:

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This is exactly the point here. Those opposed to minimal, non-intrusive, common sense racial profiling are indeed choosing doctrinaire logic over practical wisdom, and in doing so they endanger us all. The threat is real. 3,000 died in the last attacks, and if Islamic Fundamentalists had their way, it would be 3,000,000 next time. If we allow that next time to happen, then the real danger to liberty will become immense, because the common sense balancing test will be abandoned in favor of absolute security. The population will demand it. To protect both our liberties and our present security, it makes far more sense to institute a common sense policy of racial profiling right now.

Nick Maceus

Amartya Sen's ‘Entitlement Theory' of Famine: Assessment and Criticism © Abstract

Nobel-prize winning economist Amartya Sen's 1981 text Poverty and Famines gained worldwide recognition for its espousal of a revolutionary "entitlement" based approach to identifying the causal factors resulting in widespread famine. Sen's "entitlement theory" abandoned the conventional wisdom that famine resulted primarily from insufficient food supply; in fact, Sen argues in his continually revised theory that famine conditions arise largely independent of food supply characteristics. Ss support of this contention, Sen pointed to numerous examples - like the 1974 Bangladesh famine - in which widespread hunger and malnutrition occurred even when a local or regional food supply was abundant. Instead of focusing on supply, Sen examines the economic factors that erode the citizenry's capacity to purchase food supplies; in other words, Sen asserts that it is the economic inability to purchase available foodstuffs - rather than a shortage of food - that most frequently results in famine. Thus individual and family "entitlement" to adequate food is adversely affected by overriding economic factors - leading to the obvious conclusion that addressing famine issues will require attention to general economic concerns rather than specific food supply issues. In the following discussion of Sen's "entitlement" theory, his paradigm will be examined in light of several recent African famines, including those in Chad, Ethopia, Somalia, and Zimbabwe - with the ultimate goal being to establish practical applications for Sen's theories of famine relief.

Outline

I. Introduction

a. Thesis: Amartya Sen's "Entitlement Theory" of famine causation not only explains the real-world causation and continuation of recent famines in Sub-Saharan Africa, it also points to potential solutions to both ending those famines and preventing future famines.

II. Explanation of the "Entitlement Theory"

a. Sen's availability versus affordability model

b. Entitlement as a concept: food as a property right.

c. The role of government/society in protecting food entitlements.

d. Basic economic factors leading to inability to purchase basic food.

III. History of African Famine/Examination of Supply

a. Exploration of food supply status in recent African famines

b. Comparison of food supply status to economic realities.

c. Assessing recent famines via Sen's perspective

IV. Sen's Entitlement Theory - in depth

a. Elaboration:

i. Focus on why people couldn't afford food versus food supply availability

ii. Potential government "safety net" role.

iii. Prevention:

1. Policies to eliminate local and regional economic exploitation

2. Creating "free food" entitlement

b. Criticism

V. Conclusions

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