Our faithful reader James Phillips

Our faithful reader James Phillips of Folsom, California (site of a classic Johnny Cash live album), has written complimenting me on an article I have in the current (January/February) issue of The American Enterprise magazine and asking me to plug it on the Power Line. I have not mentioned the article previously because it is not available on the magazine’s Web site, but with the excuse of Mr. Phillips’s kind message, permit me to do so now.
The theme of this issue of the magazine is homeland security, and Mr. Phillips commends the entire issue to your attention. My piece–“Better Unsafe than (Occasionally) Sorry?”–addresses the issue of “racial profiling” in the context of the war on terrorism.
Last March I was invited to debate law professor David Harris at two events he spoke at to promote his new book on racial profiling, Profiles in Injustice, that had been published in February. I bought and read the book and researched Harris’s related work to prepare for my part in the programs I appeared at together with Harris.
Harris is affiliated with the ACLU which, I discovered in doing the research, has been the moving force behind the lawsuits that made “racial profiling” a national furor in 2000–a furor so great that the New Jersey State Highway Police, for example, entered into a Soviet-style consent decree essentially confessing to misconduct of which they were clearly not guilty. In my reconstruction of the relevant sequence of events, it appeared to me that Harris was the intellectual guru of the “racial profiling” campaign being conducted so successfully by the ACLU.
Perhaps naively, I was shocked by the blatant intellectual dishonesty of Harris’s book. The key to understanding the whole “racial profiling” campaign is the reality that racial disparitites in police street and highway stops, criminal arrests, criminal convictions, and incarcerations reflect the underlying racial disparities in crime rates, which are huge. In his book Harris acknowledges the racial disparities in crime rates, but he cites the number of unreported crimes in the National Crime Victimization Survey conducted by the U.S. Department of Justice to assert that the crimes of white offenders are simply unreported and uninvestigated by law enforcement authorities. Harris therefore contends that actual crime rates are equal among racial groups.
On its face this argument might be plausible, although it would strike me as far-fetched, especially insofar as the crimes covered in the National Crime Victimization Survey are crimes of violence. It is somewhat bizarre to suggest that it is a function of law enforcement bias against blacks to arrest and incarcerate violent black offenders, but to let violent white offenders go free, because of course it is largely blacks who commit crimes of violence against blacks and whites who commit crimes of violence against whites.
But having cited the National Crime Victimization Survey to support his thesis that actual crime rates are equal among racial groups, Harris simply omits the inconvenient fact that the Survey data indicate the same racial disparities among the perpetrators of unreported crimes as among reported crimes. In other words, although his book comes dressed in a scholarly apparatus including 30 pages of footnotes, his thesis is made plausible only through his deliberate suppression of the evidence.
Harris completed his book shortly before 9/11 for publication shortly after 9/11, and unfortunately for Harris, he did not rewrite the section of his book addressing terrorism and profiling. In light of 9/11, that section of his book–which mocks the link among Arabs, Muslims, and terrorism–had already been refuted by events by the time the book was published. The folks at the American Enterprise magazine run an excerpt from this section of Harris’s book together with my article, and I am not sure which more effectively refutes Harris’s thesis–my article or the excerpt from his own book.
The folks at the magazine sent a pre-publication copy of the article to Harris, who promptly sent an e-mail to the editors castigating the article as a “personal attack” on him, full of unspecified errors that he could have rectified if I had ccontacted him (he seems to have forgotten I spent the better part of a day listening to him address the issues he discusses in his book), and asking the editors what they are going to do about the article’s “slander” of him. I won’t bore you with my response to him, but I will share with you one point I withheld for fear of making him angrier. A professor of law should know that, if it is indeed defamatory, the article constitutes “libel” rather than “slander.”


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