Why the Black Lives Matter movement should claim the 14th Amendment
Black lives matter because our Constitution demands it
Black Lives Matter — the chant that has drowned out all other sounds in this moment of racial reckoning — must transcend the language of morality and adopt the language of the U.S. Constitution.
On July 3, The New York Times reported that because “15 million to 26 million people in the United States have participated in demonstrations over the death of George Floyd and others in recent weeks,” Black Lives Matter likely holds the honor as “the largest movement in the country’s history …”
We’ve seen the footage. We’ve heard the cries. We’ve felt the anguish. Many entertain their own conceptions of what propels protesters to shout “Black Lives Matter.” The overwhelming majority of us, I think, perceive a moral plea.
Protesters insist America owes a duty to all of its inhabitants, and since its inception, this country has never done right by its Black population. The most vivid failure, police abuse that produces death, captures our attention more than all others. It features the ultimate, irreversible depravity. Amid a global pandemic, protesters withstand the heat and brave rubber bullets and tear gas to hoist into the air placards declaring that Black Lives Matter, because in a morally just country, Black lives matter.
The movement, though, must reach for a more ambitious objective: control of the Constitution.
Black lives matter not just on moral grounds. The 14th Amendment provides that, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” Black lives matter because our Constitution — because the equal protection clause — demands it.
Yet, the webpage that outlines the movement’s philosophical underpinnings mentions nothing about the Constitution. The summation of what lies at the heart of the movement likely stirs many readers: “We’ve committed to struggling together and to imagining and creating a world free of anti-Blackness, where every Black person has the social, economic and political power to thrive.”
The process of converting what we imagine to what we experience, however, cannot triumph without grappling with the nation’s highest document, the document that mediates the relationship between citizen and state, and will live beyond this present moment.
The 14th Amendment converted the Constitution into a potential weapon against the racial caste system. But more than 150 years of evidence demonstrates that the amendment and its judicial interpreters have abandoned Black folk. And absent that abandonment, no one would need to rush to the streets to bellow “Black Lives Matter.” To reverse that damage, the people who endeavor to create an anti-racist world must snatch the Constitution from the grips of the enemies of Black freedom and seize hold of it for the first time.
Black Lives Matter should wrap itself in claims rooted in the Constitution, not to just prevent police brutality, but to address other intractable dilemmas.
This flashpoint of racial unrest has spurred a renewed debate on legislative solutions to America’s race problem. Few ideas have attracted more attention than reparations. Folk must understand, though, that a reparations law would succumb to the controlling theories that govern constitutional interpretation.
The “Constitution is colorblind” philosophy dominates how courts think. Congress cannot write a reparations bill that does not at a minimum obliquely mention race. Any reparations bill would, therefore, violate this colorblind principle. Without legislation, we cannot ameliorate centurieslong wounds. But without a new interpretation of the Constitution, we cannot enjoy the fruits of any such legislation.
This conundrum sinks its knee into our necks.
Right now, courts force Black folk to prove an intent to discriminate. Police brutality runs rampant partly because of this — Black folk cannot prove, at least not in a way courts accept, that police departments treat us differently on account of race. In response, we must push for an equal protection clause that compels the state to pursue policies that don’t result in discrimination. This stronger interpretation would free Black folk from much of the subtle, hard-to-identify or hard-to-prove racism that accosts our daily existence.
The equal protection clause must also allow America to redress past racism. This new interpretation of the equal protection clause will unlock a brighter future for Black America, one where the state can atone for its past sins. This is a requirement for Black people becoming equal partners in this national journey.
Racial discrimination can be stymied and redressed if a movement wins the fight for the conscience of the Constitution. That necessitates waging a campaign that emerges victorious in the battle over what the document means and requires. We encounter an urgent choice: Either redeem the Constitution, or Black people remain confined to the basement of America’s racial caste system.
Not until the last few decades did Americans and the courts begin to indulge the notion that the Second Amendment granted an individual right to gun ownership unconnected to militia service. But the gun lobby stormed public opinion, wielding strategy and diligence.
A similar renaissance cannot occur with the equal protection clause without a movement. Black Lives Matter successfully wooed the broader public to its critique of America. Now adherents must invigorate the movement with arguments that align the interpretation of the Constitution with the well-being of the Black population.
Moral claims seduce hearts and minds. Constitutional claims secure laws and rights.