Texas Wesleyan Law Review
Controlling Racial and Religious Profiling: Article 14 ECHR Protection v. U.S. Equal Protection Clause Prosecution
In light of the challenges that intelligence-led profiling poses to constitutional provisions against government discrimination, this paper discusses the extent to which, and why, Article 14 of the European Convention on Human Rights ("ECHR"), as applied in the U.K. through the Human Rights Act 1998 ("HRA"), has a greater potential to control such racial and religious profiling in a counter-terrorism context than does the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. My contentions are, in essence, that: (1) Article 14 has been less chipped away at by judicial manipulation of the definition of discrimination than has the Equal Protection Clause ("EPC"), meaning that judges are less trammelled in their ability to find that prima facie discrimination has occurred, and (2) Article 14 provides the judiciary with the tool of proportionality, making it harder for discrimination to stand up to scrutiny. Section II below explains why this comparison contributes to the profiling debate in both the U.S. and the U.K. Section III introduces the Article 14 analysis and sets out its strengths in comparison to the EPC. Section IV argues for a particular approach to applying Article 14 proportionality to profiling-a practice with which Article 14 has yet to grapple. Finally, Section V will illustrate the impact an Article 14-style analysis would have on EPC jurisprudence by subjecting U.S. cases to Article 14 scrutiny.
Controlling Racial and Religious Profiling: Article 14 ECHR Protection v. U.S. Equal Protection Clause Prosecution,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V13.I2.1