Balkinization  

Thursday, August 14, 2014

The Historical Resonance of Ferguson

Frank Pasquale

When I was in college, I was fortunate enough to take a history course from Morton Horwitz, on the Warren Court. It was inspiring on many levels. We learned about the NAACP's decades-long strategy to win civil rights for African Americans. We saw that legal struggle result in a series of legendary Supreme Court decisions.We also discussed the global pressures on the US to reform--how it was embarrassed, in the midst of Cold War rivalries, to be criticizing Soviet abuses while tolerating so many outrageously racist practices on its own soil.

Two items brought Horwitz's course to mind for me today. Mary Dudziak's scholarship on Cold War Civil Rights illuminates parallels between our eras. As she argues, in Little Rock in the 1950s, the "image of American democracy was at stake:" "foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in the nation."

Twitter is creating a similar dynamic around #Ferguson. Gezi Park veterans from Turkey are tweeting tips on how to deal with tear gas. The police militarization has made the front page of Australian papers. The Financial Times, based in London, is reporting on it. America's own leading magazines are acknowledging that "black people . . . across the South are as politically vulnerable as they’ve been since the emergence of the civil rights movement." Add to that the brutality toward Eric Garner, and mounting evidence of the racialized targeting of police attention, and the civil rights picture is bleak nationwide. Not only the 14th Amendment, but also the 1st Amendment, is endangered.

Where do we go from here? Ronald K.L. Collins offers another compelling historical analogy:
[T]he First Amendment victory in [New York Times v.] Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.
It's hard to imagine that the same Court that gave us Florence v. County of Burlington is up to questioning the militarization of police. But we can hope that, as a growing chorus of conservative voices criticize police violence, it will at least consider intervening.

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