The 14th is under attack

David H. Gans wrote: [The historian Leon Litwack has observed that “how many black men and women were beaten, flogged, mutilated, or murdered in the first years of emancipation will never be known.” Still, the report made clear that the goal of protecting Black bodies from police abuse of power was fundamental to the Fourteenth Amendment.
Police brutality and murder escalated in the summer of 1866, as Congress completed its work on the amendment and the ratification process began. In Memphis, Tennessee, and New Orleans, police officers led bloody massacres that left hundreds of Black people dead and many more badly beaten. These acts of murder and pillage, led by the so-called chosen guardians of the public peace, convinced Americans that the Fourteenth Amendment’s sweeping guarantees of fundamental rights and equal protection were necessary to redress state-sanctioned violence and inequality. As an investigation of the New Orleans massacre concluded, without new protections, Black Americans would continue to be “hunted like wild beasts, and slaughtered without mercy,” and police would continue to murder innocent men and women “with entire impunity from punishment.”
This history has been brushed aside. The Supreme Court has betrayed the Fourteenth Amendment’s promise of equal citizenship by allowing police to stop, seize, arrest, beat, and kill Black Americans at will.
As we have seen so often, what begins with a stop often ends in brutal police violence. In fact, as the killings of George Floyd, Eric Garner, Philando Castile, and many others show, police stops for trivial offenses can easily end in death for Black people. But the Supreme Court has never recognized that ending state-sponsored racial police violence was a core purpose of the Fourteenth Amendment. Instead, it measures whether police violence is permissible according to a hazy “reasonableness” standard. By blessing police violence if reasonable—without any showing that it is necessary to respond to an imminent threat—the Court has allowed the vicious cycle of racist police violence to repeat.
The Supreme Court has simply refused to take the Fourteenth Amendment’s text and history seriously. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate. The Supreme Court does this regularly. But, in a vicious form of selective originalism, the Court has ignored that ending police abuse, including police violence, lies at the core of the Fourteenth Amendment. As police officers continue to destroy innocent lives, the Court has concentrated more and more power in the police.
By disregarding the history of the Fourteenth Amendment, the Supreme Court has allowed the police to treat people of color as second-class citizens, enabling racial targeting, racial profiling, and racial violence by law enforcement. A slew of Supreme Court rulings that allow systematic stops, arrests, and brutal treatment of Black and brown Americans is the result of the Court’s erasure of the Fourteenth Amendment from the constitutional story of policing. In short, the Fourteenth Amendment’s promise of respect for the rights to life and personal security has gone unfulfilled. Now when police cross the line, holding them accountable is virtually impossible. The judge-made doctrine of qualified immunity makes suing the police for damages incredibly difficult. The exclusionary rule, which says that evidence seized by the police in the course of an unconstitutional search or seizure should be excluded from trial, is virtually a dead letter. And individuals harmed by unconstitutional policing policies, such as choke holds of the sort used to kill Floyd and Garner, cannot sue to prevent these policies from being enforced.
America’s constitutional commitments are only as good as the remedies that back them up. In the case of policing, remedies hardly exist, even on paper. The Supreme Court lets police violate citizens’ constitutional rights with impunity time and time again. As Justice Sonia Sotomayor wrote in a brilliant dissent in Utah v. Strieff in 2016, this sends the message that “your body is subject to invasion while courts excuse the violation of your rights.” By closing the courthouse doors in several ways, the Court has washed its hands of enforcing the Fourteenth Amendment’s promise that everyone—no matter their race, no matter where they are from—is entitled to live and enjoy real freedom.]

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