Tucker: Can the U.S. Constitution Save Black Lives?

POST BY Brooke Tucker Staff Attorney

I attended the first Law for Black Lives Conference in New York last week. The Conference—filled with attorneys, law students, legal-aid workers and others affiliated with the legal community—had one theme: How do we use the law to protect black lives?

As a civil-rights lawyer, I spend every day trying to figure out how to use the law to obtain rights for (insert group here). So, when I heard that question posed, it did not immediately occur to me just how radical—and incredibly important—it was to frame the question in that way.

A few hours after I left the conference, though, the gravity of it hit me like a truckload of bricks.

As someone who’s spent the bulk of her career looking first to the U.S. Constitution to find legal recourse for various injustices, I have been increasingly frustrated over the past year by the limitations of the nation’s founding document to provide any meaningful change on issues of great importance to the black community.

I have found myself constantly wondering: Why is it so much easier to protect the due process rights of cops who kill than it is to ensure that black boys walking are treated equally to their white peers? Why is it so much easier to protect the ability of a Dylann Roof to cloak himself in the Confederate flag than it is to ensure that black people don’t live in a state that flaunts that same symbol of racial hatred and oppression as part of its official banner (i.e. Mississippi)?

In thinking about the question of how to use the law to protect black lives, I realized why: The Constitution was not created to protect black lives. It was created to protect white lives—or, more specifically, white male lives.

When the Constitution was created, it decreed that black life would only be deemed three-fifths that of a white person. That racist devaluation of black life did not come with any of the Constitutional protections that the white lives were afforded.

The same holds true for the Bill of Rights. Those first 10 amendments that provided such important protections as the right to be free from unreasonable search and seizures and to face a jury of your peers—these rights simply did not apply to black people.

Many decades later, the Constitution obtained the purported equality trifecta: The 13th, 14th and 15th Amendments freed blacks from slavery, prevented states from denying any person of their due process or equal protection rights and gave black men the right to vote, respectively.

However, the trifecta was quickly construed to provide only a watered-down version of “equality” that still considered black people a separate type of American entitled to no more than three-fifths, or sixty percent, of the citizenship and privileges and right to life afforded their white counterparts.

I don’t find this surprising. Most builders know that the most important part of the building is the foundation. If that is not sturdy—no matter what you put on top of it or how you try to dress it up—the end product will be flawed and unstable.

Such is the case with our constitutional law system.

Because that system is built upon a racist base, no matter how many times we try to tinker with it, dress it up or add some new words, the end result is still a system that continues to embody its foundation—the protection of white male lives and the oppression of all others.

And that is why it is so important and so wise of the Law for Black Lives Conference organizers to phrase the question the way they did—“how to use the law to protect black lives”—rather than falling back on the typical inquiry into “how can black people obtain their full rights under the Constitution.”.

Phrasing the question the way conference organizers did is important because the answer to the latter question is that the “full rights” to which black Americans are entitled under that document do not equal the “full rights” of white male Americans. Until now, the fight for black equality in America has really been a fight just to get our three-fifths worth of rights.

Thus, even when we “win” in court and the Constitution is found to protect us, it does not translate into equal treatment of black people, just “better” treatment than before. And in the eyes of some, this should be considered suitable for a people whom the founders did not recognize as 100% human and thus not weren’t entitled to the full breadth of the sort of “equality” enjoyed by their paler masters: you know, the sort that allows white serial killers to receive Burger King and calm police interrogations while black men who give the “wrong” look to a police officer receive broken spines; the sort that requires black Detroit kids to be placed under curfew and confined to their homes whenever large numbers of white families are expected to visit the city.

This is not the result of Constitutional malfunction or misinterpretation either. This is the result of our system functioning exactly as the Constitution intended.

The oppressive policies and practices that deny black people justice even when police killings are videotaped and the facts go undisputed are merely symptoms of the racist ideology that runs throughout our founding document. And winning one Brown vs. Board of Education or one Roe v. Wade every 50 years doesn’t change this anymore than knowing one neighbor who has won the lottery suddenly makes it wise for black people to rely upon the Powerball for financial security.

I still believe the Constitution was—and is—an amazing document that was incredibly innovative for the time. The notion that white men of different faiths and countries would be treated equally and have rights that no king or other governmental structure could take away that is embedded throughout the constitutional text was definitely a radical idea—and, perhaps is still radical in many parts of the world.).

This is a notion that needs defending. We must ensure that white men, regardless of where they come from or what they believe, can say what they want, pray (or not pray) when, where and how they want, not have to testify against themselves, and never receive cruel or unusual punishment, no matter how heinous the crime. That indeed is their right as Americans and human beings.

But to answer the question of how to use the law to protect black lives, we must no longer exclusively rely upon that unstable, flawed document that was created to simultaneously uplift white life and oppress black and indigenous lives. It may be still worth playing the lottery even where the odds of winning are incredibly stacked against you—but that doesn’t relieve you of the obligation to come up with a real plan for your financial future.

At this urgent moment in our history where immediate change is needed to stop the slaughter of Americans of color, it’s better to focus more on those laws and policies that were actually enacted with the purpose of helping black lives, e.g., the Voting Rights Act, Fair Housing Act, Civil Rights Act.

Or, better still, we take this opportunity to build on our innovative beginnings and create a new Constitution—one that intends to, and explicitly does, protect black lives, indigenous lives, female lives, LGBT lives, immigrant lives, disabled lives, poor lives, young lives, all lives.

All around Detroit, I see buildings that are too broken to be repaired, buildings that must be demolished so that new ones can be built in their place—a prerequisite to the city’s long-term revitalization and success. The same principle applies here. It is time to stop trying to patch up a broken document that doesn’t protect the majority of its citizens and instead work together to build a foundation that will protect all of us. Starting anew doesn’t mean that we failed; it means recognizing that our long term success and survival as a country is contingent upon having a strong legal core that protects all those inside.

So I return from the conference focused on how to protect black lives with a question of my own: What if in 2016 we didn’t just have Republican and Democratic conventions, but had a Constitutional Convention as well?

I think our founders might be proud. I know our descendants would be.

By Brooke Tucker, ACLU of Michigan staff attorney.