Extended Phenotype

I’m following the comments on Ian Spiers, the Seattle photographer whose story I posted on yesterday. A comment from Shon Simpson showed up this morning which is worthy of analysis:

I normally don’t get involved with this liberal stupidity (most conservatives don’t because we have lives and jobs and families and we deal with facts and reality on a daily basis) but since a friend sent me a link to this annoying site, it was time to let people know what the stronger half of America thinks. Oh the poor poor bastard. He got ‘contacted’. He’s lucky he’s not in jail, which is where potential enemies belong during a war. Of course, the lunatic lawyer’s will prevent logical paths to security and victory under the guise of political correctness. I’m sure the ACLU would jump on this, just as they have with many others. Certain ethnicities need to understand that some of their undeserved “freedoms” are going to be violated while attempting to protect the public. The needs of the many outweigh the needs of the few. If a black person robs a bank, the police search for a black person. Simple, logical. As a result, some black people get unnecessarily harassed. Too bad. If a “brown” middle eastern looking person wanders around taking pictures, security forces are likely to contact them. Simple, logical. If you’re not doing anything wrong, it shouldn’t bother you. Perhaps he should reconsider his profession.

I don’t think these sentiments are exceptional among many Americans, but normally one hears them in bits and pieces (unless you listen to Rush Limbaugh or read Ann Coulter). They do, however, deserve as much rebuttal as we can give, because such sentiments lead inevitably to abuse.

Potential enemies….perhaps one of the best nuggets in Simpson’s post. What, precisely, is a potential enemy? Either one is actively working in service of an enemy or one is not. One is either arrested for cause, or one is not. The notion that the color of one’s skin or ethnicity could make one a “potential” enemy is what led to the internment of Japanese-Americans during WWII, exclusively by Executive order. Sadly, the Supreme Court upheld this internment using arguments not entirely different than Simpson’s in Korematsu v. U.S. (1944):

exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.

The sentiment to which Shon Simpson and the 1944 Court gives voice is tenacious in our culture, but ultimately unconstitutional. As Justice Scalia writes in the recent Hamdi v. Rumsfeld decision: “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion…” In the absence of a constitutional ability to preventively detain “potential” enemies, Simpson’s claim that Ian Spiers should be grateful not to be in jail shows either pure spite or something verging on racism. As an argument, it displays serious ignorance of what “due process” means.

Certain ethnicities need to understand….understand what? That we didn’t actually mean it when we ratified the Bill of Rights? Or that the Fourtheenth Amendment isn’t really the law of the land? Or that civil rights only apply when we’re not in danger? In fact, our rights are never more important than when we feel endangered. Because it’s the extreme cases where citizens and leaders, lashing out in search of a solution, can do the most damage.

Simple, logical racial profiling….it’s neither simple nor logical to make the analogy from a black bank robber who has committed a crime to Middle Eastern persons who haven’t. If witnesses and the security tapes show that a bank robber was most likely black (or white, or green), it is indeed logical for police search to concentrate on black (or white or green) suspects. The crime actually has occurred, and there is actual evidence pointing to the ethnicity of the perpetrator. In Ian Spiers’ case, no crime had occurred. Spiers’ point is entirely about racial profiling of Middle Eastern persons who have not committed crimes. The former is both logical and legal. The latter is illegal, and not even all that logical. Terrorists come in all colors, shapes, and sizes.

Spock as Constitutional Scholar….my favorite line in Simpson’s comment, however, has to be: “the needs of the many outweigh the needs of the few.” Regardless of whether Trekkies consider Spock v. Khan an important precedent, the statement as it stands is contrary to much of what our country and Constitution stand for. Much of the Constitution is designed to protect minorities (speaking generically) against the “tyranny of the majority.” Majoritarianism, or mob rule, was the Founder’s greatest fear, in fact. Limitations on Congress’ enumerated powers in Article I, separation of powers in general, and judicial review were all designed to prevent the troubling effect of “faction,” as Madison calls it in Federalist 10. Our Constitution, and subsequent constitutional history, are founded on a very different principle: “the momentary desires of the many shall not infringe upon the rights of individuals.”

I’m giving Shon Simpson’s comment far more ink than it deserves. But Simpson isn’t simply being an asshole in his comment, he’s displaying a shocking ignorance of how civil rights and our Constitution works if he actually believes what he wrote. And it’s precisely when we’re scared and under stress that we need to understand what’s permissible. The balance between rights, liberties, and an effective response to terror is a difficult one, and won’t be solved by reinstating internment camps and consulting Wrath of Khan for wisdom.