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Policing as Unequal Protection


Evan D. Bernick is Assistant Professor at the Northern Illinois University College of Law and co-author of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit.

Black Americans have endured police violence since the nation’s founding. The origins of American policing have been traced to slave patrols. Today, Blacks are more likely than whites to encounter police, to be stopped by police, and to be fatally wounded by police. In recognition of this history and ongoing experience of violence, the Movement for Black Lives (“M4BL”) has called for the defunding of the police; community control of policing; and the development of nonpunitive, noncarceral institutions for resolving social conflict, among other transformative changes.

In the wake of George Floyd’s murder and in response to a nationwide uprising against racialized police violence, these radical demands have received mainstream political attention. For the most part, these demands haven’t been expressed in the language of ordinary constitutional law. This is unsurprising. Legal scholars in conversation and solidarity with M4BL, including Amna Akbar, Jocelyn Simonson, and K. Sabeel Rahman, have recognized that M4BL takes an oppositional stance towards existing law.

It’s not my place or purpose to tell anyone how best to contribute to an ongoing freedom struggle in which, as a white male scholar of constitutional law, I am implicated but not centered. In the spirit of solidarity, however, I want to suggest that the Constitution’s text and history has a great deal to say about racialized police violence and offers potent weapons to movement lawyers and activists. As I discuss in a draft Article, “Antisubjugation and the Equal Protection of the Laws,” and will further detail in a work-in-progress, “Policing as Unequal Protection,” the Fourteenth Amendment has radical roots. In important respects, the current system of carceral violence and policing resembles that which the Fourteenth Amendment was designed to disrupt. Movement lawyers and activists have the opportunity to reclaim constitutional resources given us by radicals past from defenders of police subjugation.

The Fourteenth Amendment’s precise language has a radical history of its own. Beginning in the 1830s, radical abolitionists charged that Blacks were being denied equal protection for their “natural” rights, the most basic of which was the right to security against violence. They contended that governments had failed to secure their natural rights—specifically, by enacting discriminatory laws and declining to enforce nondiscriminatory protective laws. In annual conventions, Blacks charged that they had been “left to the assaults of the vile and vicious to do with us as they please … without redress.” The denial of equal protection of the laws led directly to subjugation—the exercise of arbitrary, uncontrolled power by whites over the lives, bodies, and possessions of Blacks.

These radical constitutional claims went from off the wall to on the table  as the ranks of the antislavery movement swelled, eventually becoming common ground within the Republican-dominated Thirty-Ninth Congress that framed the Thirteenth and Fourteenth Amendments. It’s true the Fourteenth Amendment was a compromised document; most notably, it did not constitutionalize radical demands for Black suffrage. But the text of the Equal Protection Clause guarantees to all people protection against violence—by both state and “private” actors—and the Clause was designed to prevent subjugation. In particular, it was aimed at preventing the reassertion of white control over Black bodies following the abolition of slavery.

This promise went unfulfilled. Drawing upon its constitutional power to enforce the Equal Protection Clause, Congress enacted several statutes to protect Blacks against racial terror—terror that police in the former rebel states outright aided or were either unwilling or unable to abate. But the Supreme Court rendered these enforcement efforts largely ineffectual.
Most importantly, the Court in the Civil Rights Cases articulated what became known as the state-action doctrine, which holds that the Fourteenth Amendment does not apply to the acts of “private” parties—physically violent, socially demeaning, or otherwise. Together with Plessy v. Ferguson, which brazenly ignored the social significance of unambiguously “public” discrimination by the state of Louisiana, the Civil Rights Cases saw the most powerful lawyers in the land facilitating rampant private violence by racist lynch mobs and legitimizing Jim Crow.

Today, Blacks are subjugated by a criminal legal system that Michelle Alexander calls “the New Jim Crow”—a system constituted by two broad forms of exclusion. The first: mass incarceration and the exclusion of people with criminal records from civil institutions, including the franchise, the jury, public housing and certain types of employment. The second: the stigmatization of Blacks who have not been convicted of any crime as potential threats, to be disrespected, searched, and violently restrained. As in days past, the Court has been complicit in subjugation, grafting a requirement of individual, discriminatory intent into the Equal Protection Clause, despite the absence of any such requirement in the Clause’s text or history.

It is because of this Court-facilitated subjugation that Blacks suffer from what Monica Bell has conceptualized as a legal estrangement. As she writes, many Blacks do not “experience policing as a protective benefit.” Many are detached and alienated from the police, thanks to a “cumulative, collective experience of procedural and substantive injustice.”

This subjugation is a constitutional problem. Black lives are not equally protected because of the police. It is with considerable irony, then, that some legislators have invoked the equal protection of the laws to denounce the struggle against police violence, effectively arguing that racial subjugation is constitutionally required. There is no reason for movement lawyers and activists to accept this framing; we have the Constitution on our side.
Demands for defunding, community control, and nonpolice safety institutions are not demands to go unprotected. They are in part efforts to reclaim a constitutional right to equal protection that has gone judicially unenforced. Police departments are to be defunded because they inflict more violence than they prevent; they are to be community-controlled because violence-workers should be accountable to those most directly impacted by their work; resources are to be reallocated to other safety institutions that are better-equipped to reduce violence than are the police.
Perhaps the struggle for Black lives would not in fact be aided by federal judges determining whether municipalities are impartially allocating law-enforcement resources. The result might be more policing but less protection—and thus more subjugation. But movement lawyers and activists should not acquiesce in a judicial monopoly on constitutional interpretation, any more than did their radical predecessors.
The original abolitionists lacked confidence in the courts after the Supreme Court’s 1857 decision in Dred Scott v. Sandforderased Black citizenship. Yet they addressed constitutional arguments to a Congress that erased Dred Scott by enacting the Fourteenth Amendment and for one brief, glorious moment put into practice what W.E.B. Du Bois called “abolition democracy.” Today’s Congress suffers from notorious collective action problems; but local efforts to pressure municipalities to shrink policing’s footprint are already meeting with more success today than at any time in recent memory.

Movement lawyers, in an ongoing dialogue with activists, clients, and marginalized communities, have reclaimed constitutional territory, participating in projects consistent with the Fourteenth Amendment’s spirit without asking the Court’s leave. Community bail funds can reduce subjugation by ensuring that whether someone is detained prior to trial does not turn how much cash they have available. Copwatching can reduce subjugation by implicitly threatening the police with public exposure of violence via video that the police do not control. Securing the right to counsel in eviction and civil-forfeiture proceedings reduces subjugation by ensuring that tenants aren’t subject to the arbitrary power of their landlords and makes it harder for police to profit by seizing vehicles, cash, or homes from people on the bizarre fiction that their “property” is guilty of criminal conduct.

Expressly framing these projects as constitutional projects isn’t just rhetorically effective. It’s a way of honoring a history of struggle and situating ourselves in it. And it forces lawyers reckon with their profession’s own complicity in racial subjugation.

Skepticism of the Constitution’s capacity to deliver transformative change is certainly warranted. But constitutionalism has proven a potent power-building tool for the powerless. The values of protection and antisubjugation are embedded in the text and history of the Fourteenth Amendment. Movement lawyers and activists participating in a centuries-old freedom struggle should take them up.