I'm a rule of law specialist. I have a book on the subject that will be on shelves in a few days, the Rule of Law in the Real World. One of the most important things my book concludes is that the rule of law is about the reciprocal and collective self-defense of the people against the power of those who wield the state's monopoly over violence: we can only force them to do so within the law if we can trust one another to collectively stand in the defense of any of us who are subject to official abuses.
For Alternative Constitution Day, we should reflect on the way in which people of color have long been excluded from that collective bargain. Except for the brief shining moment when the Radical Republicans stood in defense of the freed slaves, public officials and the white citizenry at large were allowed for a century after the Civil War to run amok with lynchings and other violence against citizens of color, in defiance of the guarantee of full citizenship expressed in the first sentence of the Fourteenth Amendment and in defiance of the promise of the refounding.
While today we've largely put a stop to lynchings (Yet have we? What else can we call the killing of Trayvon Martin, whose 21st birthday would have been on Friday?), the Black Lives Matter movement should remind us that we have not yet put a stop to arbitrary official violence against black bodies.
People of color know this at bone-level. But how to bring it home to the whites who dominate America's political, legal, and economic systems? I think rule of law ideas can help. By allowing the police to carry out unchecked violence against people of color, the white majority undermines collective trust in the shared American commitment to keep power under control; those who leap to the uncritical defense of the police whenever another black person is killed condition themselves to tolerate the abuse of authority more generally.
This means that ignoring official violence against citizens of color has the potential to bite back at the privileged too. I think we're already seeing this, in the growth of police abuse against the population in general. Think of recent scandals about the abuse of civil asset forfeitures, about police militarization, about the Chicago Police Department's astonishing secret interrogation site—an abuse that primarily fell on black citizens, but whites could get put there too—and about how the New York Police Department felt free to throw a tantrum and stage a work slowdown to retaliate against the Mayor's having the temerity to suggest that they ought to stop ignoring the law.
The only way the American people can get official misconduct under control is to stand together and resist it wherever it appears. And that means that black lives have to matter, and not just to black folks.
Paul Gowder, Associate Professor of Law, University of Iowa College of Law