On this Constitution Day, I have been drawn to thinking about violence against minorities in America and how our constitutional system fails to address this violence.  We have seen numerous episodes of individual and community violence against neighborhoods of color from Ferguson to Baltimore.  We are familiar with the long list of individuals who have died at the hands of the police under questionable grounds.  (I discussed both here previously.)  This violence is so engrained and pervasive that it is systemic. In the words of a famous scene from Monty Python and the Holy Grail, it is “violence inherent in the system.” 

Yet this physical violence is but one manifestation of the long history of subordination of communities of color. This violence of white supremacy is also made manifest in the expressive violence of exclusion from the political process, as it dilutes and diminishes both minority individual and community political strength.  And our constitutional mechanisms are not fully addressing it.

Communities of color have been victims of this violence—whether state-imposed or state-abetted—for generations. This violence has taken various forms: slavery, Jim Crow, police brutality, and mass incarceration.  That violence attacked their bodies, their property, and their status as members of the American democratic community.

The ways that our constitutional system allows violence against vulnerable minorities represents an existential attack against minority communities and a continuation of the patterns of white supremacy (even if the intent of racial discrimination is absent).  This isn’t to say that the crises linked to the policing of minority communities, including police brutality and killings; racial profiling; mass incarceration; and racial disparities in the death penalty shouldn’t be thought of as less important—they are important and pervasive.  Yet these species of state-sanctioned violence are connected to the political exclusion that minorities suffer, and they are better seen as parts of a whole.

While criminal justice related violence counts as visible manifestations of violence against minorities by the state, there is also an invisible, expressive violence inherent in the system. It is the violence of marginalization and exclusion from the democratic process that is part and parcel of this existential crisis, as well as the damage done to the constitutional mechanisms meant to prevent such violence.

This becomes clear when one examines the movement against broader enfranchisement. As much as our Constitution promises freedom from “unreasonable searches and seizures,” our Constitution promises that states will allow all citizens to freely exercise the right to vote free of racial prejudice. Thus, and I note in a recent essay, denials of the right to vote that fall heavily on the basis of race—felon disenfranchisement, voter identification requirements, proof of citizenship requirements, gerrymandered electoral districts, and arbitrarily shifted election season rules—create barriers to minority voting in the states where these practices take place.  This suggests that the promise of political racial equality is not being fulfilled.

The Voting Rights Act of 1965 is supposed to mitigate many of these practices to promote the Fifteenth Amendment’s promise of ending racial discrimination in voting.  But in light of cases like Shelby County v. Holder, the ability for national solutions to be found to these problems has been greatly crippled.  Moreover, these barriers have been justified by a call for election integrity. While insuring fairness and impartiality in elections is important, the manifestation of this concern in laws that appear to hyper-regulate the political process through regulations that apparently bar access and discourage participation seem targeted at policing minority voters rather than insuring fairness of access. This raises questions about the legitimacy of these rules and the perverse incentives of the politicians who make those rules, which in itself casts doubt upon the integrity of elections.

This exact issue—the integrity of rules that frustrate minority access to the political process—has been raised in recent litigation under Section 2 of the VRA of 1965.  In Texas and North Carolina, civil rights groups have sued regarding voter identification qualifications.  The theory that these requirements disproportionately exclude minorities who lack the credentials the laws require at higher rates. The Fifth Circuit recently found this to be the case regarding the Texas’s voter identification requirement. (And it is worth noting that such questions would have been addressed far more directly had Section 5 of the VRA been operational.)

These laws are systemic violence against minorities.  They likely effectively disenfranchise minorities (and they also send the expressive message that minorities are not welcome to vote).  Such exclusion from voting—that fundamental right that is supposedly protective of all other rights—is thus exclusion from full status as citizens.

The purpose of fundamental rights in a democratic constitution is to protect “We the People” from the systemic violence of the state and to prevent the state from abetting such violence, whether it is violence against our persons, our property, or our rights.  A constitutional system that touts democracy but allows disparate treatment of its citizens of color by disproportionately killing their bodies, destroying their ability to vote, and relegating minorities to a political and social underclass can be fairly questioned as illegitimate. The work of the Constitution is incomplete until this failing is remedied and the racialized physical and political violence inherent in the system is brought to an end. 

** This post originally appeared as part of the ACS Blog 2015 Constitution Day Online Symposium.  You can obtain that link here:   http://www.acslaw.org/acsblog/the-violence-inherent-in-the-system-race-voter-suppression-and-the-incomplete-work-of-the