Despite progress over the last century, for black people this country has failed to ever make good on its earliest and most basic democratic protection: the 14th Amendment. When the 14th Amendment was enacted, it was meant to provide equal protection to all under the law. But if a black person can be gunned down and left in the street for over four hours with no disciplinary action taken against the government representative responsible, what does "equal protection" mean? Redeeming the promise of the 14th Amendment is as relevant today as it was when first enacted.
On August 9, 2014, Officer Darren Wilson shot and killed 18-year-old Mike Brown in Ferguson, Missouri. On August 28, 1955, two white men, Roy Bryant and J.W. Milam, killed 14-year-old African-American Emmett Till in Money, Mississippi after Till reportedly flirted with a white woman. An all-white jury summarily acquitted Roy Bryant and J.W. Milam. Just months later the two men talked with a reporter and admitted to torturing, killing, and mutilating Till.
Till's mother Mamie Till Mobley heroically insisted on a public funeral with an open casket to show the world the brutality of what happened to her son. The funeral and images focused national and international attention on lynching and the apartheid character of American life under Jim Crow, and ignited the modern civil rights movement.
Similarly, the killing of Mike Brown by Darren Wilson has sparked a new movement to end police violence and the "New Jim Crow," the mass criminalization of black people in particular, and of communities of color more broadly. The killing has sparked protests across the country and more than 5,000 people attended Brown's funeral. But to be successful, this new movement must succeed in advancing a very old demand and promise -- it must make the 14th Amendment guarantee of equal protection under the law relevant and actionable.
One of the Reconstruction Amendments designed to end slavery, the 14th Amendment was bitterly contested by Southern states, which were required to ratify it in order to regain representation in Congress. Through the Force Acts or Enforcement Acts, criminal codes were initially used to help protect the rights of black men to hold office, serve on juries, and receive equal protection of the law.
But two Supreme Court decisions undermined these protections. United States v. Cruikshank interpreted the 14th Amendment in a way that protected the Ku Klux Klan from federal prosecution rather than black people from the Klan. And in United States v. Reese, the Supreme Court interpreted the Enforcement Acts as requiring proof that the agent of the government acted with "discriminatory intent." This has effectively meant that the government official must actually state that the rationale for their behavior is discrimination. These cases helped render 14th Amendment claims meaningless for black people and helped usher in the long and brutal period of Jim Crow.
Though the U.S. Senate formally apologized for its failure to ever pass an anti-lynching law during Jim Crow in 2005, what remains unacknowledged by Congress is the need for something akin to an anti-lynching law today.
Lynching is the extra-judicial killing of someone by a mob of people without legal authority. In Emmett Till's day, men like Bryant and Milam acted as judge, jury, and executioner, often with the complicity and cooperation of local authorities. Certainly today, police officers have special powers as individuals entrusted to enforce the law and to protect themselves or others. But when those duties have been clearly violated, what recourse do citizens have?
Most of the power is local. As Charlene Carruthers and Terrance Lacey describe, local legislation could be passed to require police officers to wear cameras and to mandate Community Review Boards of police conduct. Missouri Senator Claire McCaskill has suggested that police departments should not receive federal funds unless they put cameras on their officers. Petitions are also calling for President Obama to institute accountability measures for police departments, instead of allowing the departments to be solely responsible for investigating themselves. People can also vote to remove their mayor if they appoint police chiefs who don't discipline officers.
The local government in Ferguson, Missouri has the capacity to bring criminal charges against Officer Wilson. This is a demand that is being made and should be made, but it should not require Ferguson levels of protest to get an officer criminally charged, nor to enact common sense reforms like the ones described above.
More robust 14th Amendment protection could require more meaningful record keeping by the police, expand citizens' rights to bring claims against police departments, and provide for financial and other sanctions where patterns of discrimination and abuse are shown.
Statutory law based in the 14th Amendment could strengthen the hand of low-income communities of color who are statistically the most likely to be subject to police violence and the least likely to get police protection.
Proper application of the 14th Amendment could also translate into better outcomes for those who have received sentences nearly twenty times longer than their white counterparts. As William J. Stuntz argues in The Collapse of American Criminal Justice, courts should hear claims that a defendant receiving a sentence based not on the facts, but on the color of their skin, violates the 14th Amendment. Sentencing laws that result in wildly different outcomes for defendants accused of similar crimes without legitimate justification, such as "crack/powder" cocaine laws, should be considered constitutionally suspect.
No single law makes a movement for justice, but perhaps no other law besides the 14th Amendment has ever held more promise to create meaningful levers for change and yet meant so little in practice. If the end of police killings of unarmed black men and the end of the New Jim Crow is to be achieved, a dead law must be revived.
Please join ColorofChange, Organization for Black Struggle, and other progressive organizations in front of the White House on Thursday, August 28 at 5 p.m. to deliver the signatures of almost 850,000 people who have signed petitions calling for justice for Mike Brown. And in case you can't join in person, please call on the Department of Justice to act now: JusticeForMikeBrown.org.