It is of the Constitution we speak

Much has been written about the tragic events in Ferguson, Staten Island, Cleveland, St. Paul, Baton Rouge, Dallas, and other cities. All of these events were unfortunate and its victims must be mourned. All of these events also stem from the complex history of the United States and its treatment of the descendants of slaves. While this nation has survived slavery, Jim Crow and the civil rights era, the toxic and racist police practices and prejudices, reflected in the treatment of African-Americans drivers, pedestrians and bystanders, have bled into the 21 st Century. Dr. Martin Luther King’s mantra “We Shall Overcome” has morphed into “Black Lives Matter.”

The seething and palpable anger that followed Dr. King’s assassination in 1968 and that led to the burning of major cities is manifesting itself today in gun violence (inside and outside the African-American community). While cities may be burned today, those who are in possession of assault weapons capable of killing scores of people, promoted vigorously by national organizations in the name of the Second Amendment, are perpetrating more violence and more death – and the police are becoming the victims of this anger.

What is evolving is a perfect storm of tragedy: the proliferation and availability of arms that inflict mass destruction, the doggedly persistent cases of unjustified deaths of men and women of color at the hands of police, the exponential use of cell phones with video recording components, the growth of social media that can communicate questionable police actions in a matter of seconds, an ineffective and dysfunctional Congress, divisive rhetoric by political contenders, and the changing demographics that will result in the USA becoming majority minority by mid-Century.

Today, assertions made by members of the communities of color for decades about police abuses are documented by third parties and videotaped for all to see. As in the civil rights era, when television brought injustices and racist Southern treatment to the living rooms of Middle Americans, Facebook and Twitter are exposing in painful detail the killing of unarmed pedestrians and drivers at the hands of those who swore to serve and protect.

We support efforts to call on all Americans to de-escalate the backlash against this ill-treatment and learn to communicate and even to love each other. As an organization whose members are equal employment opportunity, affirmative action and diversity practitioners, we also call on police agencies to accelerate their efforts to diversify police officer ranks and to teach about unconscious bias. We also support efforts to increase police accountability and the prosecution of miscreant officers. Further, we support the use of body cameras and ways to document police interactions with the community. As important, we support the establishment of national standards on the use of force and the minimizing of police contacts with drivers for offenses like broken tail lights or illegal lane changes. Confrontations with citizens should also not be an excuse to supplement local budgets by imposing traffic fines.

Most importantly, we call on members of the police community to remember that it is the United States Constitution they are executing and enforcing. This document famously calls for equal justice under law. Moreover, it demands a trial by a jury of one’s peers and prohibits cruel and unusual punishments. It is not the province of the police to be the judge, jury and executioner if the person happens to be of color. Nothing in the Constitution confers that right.

The preamble to the Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Fifth Amendment to the Constitution states in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury….nor be deprived of life, liberty, or property, without due process of law.” (Emphasis added)

The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The Fourteenth Amendment to the Constitution granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added)

These constitutional rights are to be enjoyed regardless of the skin color of the motorist or pedestrian. It is not within the domain of the police to determine whose lives have value. Black lives, like all lives, truly matter. This is a truism that should not be vilified; it must be respected as part of the responsibility and rights inherent in the US Constitution.

Lastly, it is essential for police and policymakers to remember the importance of legitimacy. While a government may have authority it needs legitimacy to survive. Legitimacy makes citizens obey and feel loyal toward their government. It is the loss of legitimacy that led to the signing of the Magna Carta by King John when English barons tired of excess taxation and repressive treatment. It was the loss of legitimacy in the American colonies that led to the rebellion against King George III. It was the denial of basic human rights that led to the Civil Rights movement of the mid-20 th century and to the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In all instances, when a people feel that they are poorly and unjustly treated a government loses its legitimacy.

Justice Sandra Day O’Connor referred to legitimacy in the Grutter v. Bollinger 2003 affirmative action case:

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. (Emphasis added)

The consistent reports of unjustifiable killings of people of color at the hands of police, who are executors of the nation’s laws including the Constitution, will quickly lead to a state of illegitimacy, where those who are governed lose confidence in the integrity and fairness of their government. Since these incidents are visible by all Americans and the world itself, the loss of the legitimacy of government will be felt by citizens of all colors, races and ethnicities both at home and abroad. This trend is exemplified by the racial heterogeneity of the demonstrators in the nation’s cities.

It is the Constitution of which we speak. Government, and police forces in particular, must restore their legitimacy in the mind of an increasing population of color by remembering that it is the Constitution and its rights that they have sworn to respect and enforce. Dr. King spoke of the “Fierce Urgency of Now.” That time is upon us.

Shirley J. Wilcher, J.D., CAAP