A few years ago, Ilya's colleague, Nelson Lund, published "The Conservative Case Against Racial Profiling in the War on Terrorism," in the Albany Law Review. In it he explains why conservatives should be reluctant to allow government officials to use race as a proxy for other characteristics when seeking to identify potential terrorists. Both conservatives and liberals alike, he suggests, should not want government officials to use race in this manner.

Here is part of the introduction and summary of the article:

By now, most of us have had the opportunity to see little old ladies stopped for humiliating random searches at the boarding gates in the airports, while far more dangerous looking men have walked down the jetways without so much as a second look from the security screeners. Conservatives, in particular, have skewered the government for persisting with these apparently silly, and quite possibly very dangerous, policies. This is consistent with the general tendencies of conservatives to be more supportive than liberals of aggressive law enforcement techniques and to be less likely to believe that police officers are prone to racist behavior. Political correctness, obsessive pandering to racial sensitivities, bureaucratic mindlessness-- whatever the diagnosis, the cure is taken to be obvious: Stop the silliness, we're told, and get serious about protecting us from another attack, which we can be quite sure will not be carried out by septuagenarian Norwegian-American women.

In my opinion, this new enthusiasm for racial profiling is misguided. My argument has three main points.

First, racial profiling or racial stereotyping is something that all of us do all the time. There are good reasons why we do it, and there are also good reasons why we need to make an effort not to do too much of it.

Second, free societies--and especially free markets--foster profound forces that tend to curb irrational racial stereotyping. These mechanisms certainly do not work perfectly, but they do work.

Third, governments are highly prone to excessive racial stereotyping and are largely immune from the forces that keep this practice in check in the private sector. For that reason, government policies that entail racial profiling should be treated with the greatest skepticism. Not only do they threaten the legitimate interests of various racial groups, but they tend to distract government agencies from alternative policies that are likely to work at least as well.

Certainly, we should not pander to left-wing racial mau-mauing if doing so will leave us vulnerable to another catastrophe like 9/11. But by the same token, let's also avoid pandering to dysfunctional bureaucratic imperatives that have their own potential for disaster. In short, I agree with the conservative commentators who think that the war on terrorism is a serious business that we should all be treating in a serious way. But I disagree with the conclusion that racial profiling is likely to make an important contribution to that effort.

The most important reason for being skeptical about racial profiling is one that ought to be shared by the left and right alike: it threatens to undermine the important national goal of making all races equal under the law. I will focus here on an additional reason that should be especially appealing to conservatives: the danger of government abuses.

Government use of race in certain circumstances may well be constitutional, and some racial profiling may even pass strict scrutiny, but that does not mean that it makes for sound public policy.

UPDATE: Eric Muller asks what is "conservative" about Nelson Lund's argument. That is a fair question. Without seeking to preempt any answer that Professor Lund may have, here is how I see it.

A common conservative critique of governmental decision-making is that, as a general rule, government entities are not subject to the various forces, including market competition, that tend to discipline decision-making in the private sector. Thus, as a general rule, conservatives are more hostile to government provision of services that can be provided by the private sector or government preemption of private risk-management decisions than are liberals.

In his article, Lund suggests that the very pathologies of government bureaucracy that conservatives criticize in other contexts should make them wary of racial profiling by government actors, even in the context of the war on terrorism. Further, he argues that insofar as conservatives believe that market competition discourages racial discrimination in the private sector, there is no equivalent market pressure to constrain the use of racial profiling by government actors in counter-terror efforts. Liberals and others may accept these arguments, but I think it is fair to say that the analysis Lund develops in his paper proceeds from premises about the nature of government decision-making that are typically viewed as "conservative."