Federal Judiciary

Not long ago, Harvard professor Henry Louis Gates was arrested by the Cambridge, Mass., police for trying to enter his own locked home after misplacing his key. Almost immediately, President Obama rushed to condemn what he thought was racial profiling. The police were acting ?stupidly,? Obama concluded. He added: ?There?s a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately.?

Here is where the argument about an individual and the group turns nasty: Is using statistics on collective behavior a reasonable tool of law enforcement for anticipating the greater likelihood of a crime, or does it gratuitously stereotype the innocent? Or sometimes both, depending on how it?s done?

Take the Arizona anti-illegal-immigration law. It gives police the right to ask for identification papers if they have reasonable cause to suspect that someone questioned on a separate matter may be in the country illegally. In the heated reaction to this new state law, we have heard everything from calls for a boycott of Arizona to allegations of Gestapo-like tactics.

But is Arizona doing anything that much different from what most Americans do all the time -- namely, using all sorts of generalized criteria to make what they think are play-by-the-odds judgments that may or may not be proven wrong by exceptions? The president himself did just that when he said his own grandmother sometimes acted as a ?typical white person.? And he once stereotyped rural Pennsylvania voters as xenophobes clinging to their guns and religion.

More than 60 percent of voters nationwide either support the Arizona law or find it still too lax, according to polls. They apparently believe that a police officer can, in fact, make reasonable requests for identification. For example, if a trooper near the border pulls over a car for a missing tail light, finds that there are younger Hispanic males in the car, and observes that none can understand English, can he then conjecture that there is a greater likelihood some might be Mexican nationals? The trooper, after all, is working within a landscape in which one Arizonan in ten is an illegal alien from Latin America, and the state shares a 300-mile-long border with nearby Mexico.

Otherwise, would it be okay for the border patrol to try to detain a suspicious Hispanic male for possible immigration violations at or near the border, but not okay for police to ask for I.D. from the same person should he make it a few miles past the border?

Imagine the reaction if nearly a million mostly poor, white French Canadians were trying to cross into Vermont and New York from Canada each year. If those states felt that such an influx was both contrary to federal statutes and a burden on their social-service industries, could police rightly ask for I.D. from any French-speaking white males pulled over for traffic infractions -- or do so only at or near the northern border? Would these French-speaking suspects be likelier illegal aliens than, say, Hispanic, English-speaking American citizens of Albany or Burlington?

On a recent international flight, I noticed that the cabin crew was far more attentive to a group of Arabic-speaking, Middle Eastern males than it was to a group of Chinese nationals. Had the attendants collated the number of terrorist incidents since 9/11, concluded that the vast majority of them were attempted by Middle Eastern males, and so tried to give more attention to politely watching one group than another? And should they have, given that the vast majority of Middle Eastern males reject terrorism?

When Justice Sonia Sotomayor was nominated to the Supreme Court, the media unabashedly wrote that President Obama was focusing on naming the court?s first Hispanic justice. Sotomayor herself had used the term ?wise Latina? to suggest that her gender and ethnic profile, in some cases, made her a better judge than stereotypical white males.

When we weigh racial and gender stereotypes for what we deem noble purposes, we call it ?diversity,? but when we consider criteria other than someone?s individuality for matters of public safety, it devolves into ?profiling.?

So what are we to make of the Arizona law?

First, rightly or wrongly, most Americans have long accepted some forms of both private and government profiling that draws on greater statistical likelihood. Second, should Arizona police start gratuitously pulling over U.S. citizens statewide and questioning them without cause, the law should -- and will -- be overturned. Third, far more illegal aliens will be detained than before the law was passed.

And fourth, the third likelihood accounts for much of the angry reaction to the Arizona law.

-- Victor Davis Hanson is a classicist and historian at the Hoover Institution, Stanford University, and editor, most recently, of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome. © 2010 Tribune Media Services, Inc.

Full post as published by Bench Memos - National Review Online on May 13, 2010 (boomark / email).