Student Blogger - #13Amend Live Blog: Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling
William Carter, ""Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling": The thesis of this paper is that racial profiling is a badge and incident of slavery and therefore evidence obtained as a result should be excluded. There are three parts to this argument: 1) The 13th Amendment was understood to abolish more than chattel slavery; it also applies to the badges and incidents of slavery. 2) Racial profiling is a badge and incident of slavery. 3) The appropriate remedy is to exclude the evidence obtained through racial profiling.
Carter's argument is from the Originalist perspective, though he is not actually an Originalist, himself. One reason for this is that his argument does not need a more progressive interpretive methodology to succeed. The framers of the 13th Amendment, according to Carter, made it clear that they wanted to eradicate the badges and incidents of slavery. Slavery was part of a matrix involved in the denial of freedom. Carter quotes Senator Trumbull of Illinois in order to support the proposition that the fall of slavery was seen by many as an end to the badges and incidents of slavery including restrictions on personal freedom, such as the right to go outside or to make contracts. There may be debate about how far it was intended to go, but there is really no room for debate that it was meant to go no further than to end chattel slavery. Carter goes on to explain why racial profiling is the paradigmatic case of the badges and incidents of slavery. He does not believe that racial profiling as a predictive mechanism is the modern equivalent of slavery. Nor does he argue that racial profiling is necessarily a manifestation of subjective discriminatory intent; this would be a 14th Amendment argument. He argues instead that racial profiling is a modern manifestation of the historical stigmatization of blackness as being associated with criminality. This association served to lessenthe dissonance between the celebration of liberty and freedom, one the one hand, and slavery on the other. Justificatory argument claimed that slavery civilized the blacks; that without it they would hurt each other and the whites. The presumption of criminality based on race is historically continuous. Racial profiling, therefore, is a badge and incident of slavery because it is an output of this system. Carter argues that the exclusionary rule is the proper remedy for a 13th Amendment for the same reasons that it is seen to be the proper remedy for violation of the criminal procedure amendments (the 4th, 5th and 6th). These are that exclusion benefits the defendant, society generally and the legal system because our rights are prevented from erosion and the courts are prevented from being complicit in the violation of rights. Carter then presented some potential problems with his proposal. The first is that the exclusionary rule has only been applied to criminal procedure amendments, not even to equal protection violations. Another source of concern is that the Court has recently has expressed skepticism about the exclusionary rule generally.