Jonathan Adler, at VC, quotes from Nelson Lund’s article in the Albany Law Review on why conservatives ought to oppose racial profiling. Here’s the excerpt:

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.

While reading this, I wondered what exactly was “conservative” about Lund’s argument. A commenter to Adler’s post had the same question. Adler responded in an update to his post. He argues that Lund is playing to the conservative skepticism of government bureaucracy and its inability to curb irrational sentiments the way markets do.

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.