Others have attacked certain modern practices or conditions as “badges or incidents” of slavery, in the sense that those practices either existed during slavery and continue to exist today, or arise from social inequalities that were fundamental to the slave system. See, e.g., Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1 (1990) [hereinafter Colbert, Challenging the Challenge]; Larry J. Pittman, Physician-Assisted Suicide in the Dark Ward: The Intersection of the Thirteenth Amendment and Health Care Treatments Having Disproportionate Impacts on Disfavored Groups, 28 Seton Hall L. Rev. 774, 856–57 (1998).
William M. Carter, Jr. ∗ Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial proªling. While scholars have correctly concluded that racial proªling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment. Racial proªling is not only a denial of the right to equal treatment, but also a current manifestation of the historical stigmatization of all African Americans as predisposed toward criminality.
This legally enforced stigma arose out of, and was essential to, slavery and the social structures necessary to maintain slavery. Courts have wrongly divorced the modern practice of racial profiling from its historical roots and instead focused solely on the subjective intent of individual police officers in discrete cases. By doing so, courts have misunderstood and undervalued the injuries incited by racial profiling; failed to acknowledge the systemic, historical bases of racial profiling; and failed to provide effective relief. The Thirteenth Amendment provides both courts and Congress with the authority to remedy this legacy of inequality arising from the slave system in the United States. [I]n a society that began to demonize African Americans almost as long as it ªrst enslaved them, blacks have endured being cast as menacing shadows at the edge of bad dreams. Racial profiling, or the use of race as an ex ante basis for criminal suspicion, has been the subject of much scrutiny and debate. Traditionally, those who support the use of race as an element of criminal profiles have argued that the practice is merely a reflection of racially disparate crime rates. If African Americans, for example, commit more crime, it only makes sense to include race as an element of proªles used to predict criminal conduct.2 Furthermore, many would argue that African Americans and other minorities are simply too sensitive,3 and would characterize opposition to racial profiling as “political correctness.”4 Since crime rates are racially disproportionate, ignoring such evidence in the name of cultural sensitivity costs us all, especially racial minorities whose communities are disproportionately affected by crime.
Source Published in E.D.C. Campbell, Jr. and K.S. Rice,eds., Before Freedom Came: African-american Life in the Antebellum South (Charlottesville, Univ. Press of Virginia, 1991), fig. 118, p. 138;original photograph located in Prints and Photographs Division, Library of Congress. Comments Photo of cells/pens where slaves were held prior to being sent to markets in the Lower South. Campbell and Rice write that slave traders in such upper south cities as Alexandria, Richmond, and Norfolk were the main suppliers of slaves for New Orleans, the largest slave market. In Alexandria, the “widely known firm of Price, Birch & Company collected slaves in crowded pens before they were ‘sold south’ ” (p. 138).