David H. Gans wrote: [On December 3, 1865, a group of Black Mississippians wrote to the state’s governor, demanding respect for their newly won freedom. “Now we are free,” they insisted, “we do not want to be hunted … All we ask is justice and to be treated like humane beings.” They recalled vividly “the yelping of bloodhounds and tareing of our fellow servants To pisces” by slave patrols, and called for an end to these violent abuses. The Fourteenth Amendment, written the next year and ratified in 1868, vindicated their demands for equal justice, human dignity, and bodily security.
The Fourteenth Amendment effected a fundamental transformation in the constitutional law of policing in two respects. First, it required states to respect basic fundamental rights, including those to life and personal security. State police could not indiscriminately search and seize Black Americans. Second, as Senator Jacob Howard—one of amendment’s framers—explained in congressional debates, its guarantee of “the equal protection of the laws” demanded “one measure of justice” for all persons, regardless of race. The requirement of equal protection ended “the injustice of subjecting one caste of persons to a code not applicable to another,” according to Howard.
Together, these guarantees sought to put an end to racialized policing practices. In doing so, the Fourteenth Amendment embedded directly in the Constitution the idea that violence against Black people must stop. This reflected the obvious and most basic truth that bodily integrity and security are fundamental to freedom. The Fourteenth Amendment struck at centuries of history that permitted Black bodies to be violated indiscriminately, instead promising personal security to all. Open-ended police power, the framers of the amendment recognized, was a tool of racial oppression and violence. Equal citizenship and true freedom could not be enjoyed without limiting police abuses.
The history of how the amendment came to be reveals that foundational promise. In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. Some of the leading lights of the 39th Congress, including Senator Jacob Howard and Representatives John Bingham and Thaddeus Stevens, served on the 15-person bipartisan committee. The committee took testimony from white southerners, Black Americans seeking to enjoy freedom for the first time, and Union officers working in the South, learning firsthand of the gruesome violence and systemic violation of fundamental rights. The committee drafted the Fourteenth Amendment, and its findings and the testimony it heard bear directly on the amendment it wrote.
The committee’s report—released in June 1866 and widely distributed across the country—made the case for securing “the civil rights and privileges of all citizens in all parts of the republic.” If southern states were left to their own devices, Black people “could hardly live in safety” and “acts of cruelty, oppression and murder” would flourish.
Five different kinds of police abuse of power were detailed in the report: home invasions, theft of personal property, indiscriminate and pretextual arrests, wanton state-sponsored racial violence, and a refusal to protect Black people from private violence. In all these ways, the police and the criminal-justice system functioned as a lever to take freedom—and even life itself—from Black people. In vivid, terrible detail, the report cataloged how police officers acted “in respect to violence and ill usage, in every way equal to the old days of slavery”; how they arrested Black Americans as vagrants “simply because they did not have in their pockets certificates of employment from their former owners or other white citizens”; and how the police “go in squads and search houses and seize arms,” fleecing Black people of their possessions.]
The Constitution is supposed to be the law of the land.