I want to talk very briefly about some of the flaws in Whren as a matter of constitutional history, doctrine, and social psychology. Those issues have been discussed throughout this symposium, so I will only touch upon them briefly. I will then discuss some legal developments in equal protection doctrine post-Whren. Finally, I will suggest a possible path forward. A great deal of my scholarship over the years has been in the field of the Thirteenth Amendment. I will, therefore, suggest that we can reconceptualize racially motivated, pretextual police encounters as a Thirteenth Amendment issue rather than as either a Fourth Amendment issue or a Fourteenth Amendment issue.
William M. Carter Jr.,
Whren's Flawed Assumptions Regarding Race, History, and Unconscious Bias, 66 Case W. Res. L. Rev. 947 (2016)
Available at: http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/6
Page 947, footnote *, line 3. For "2016" read "2015."