an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For the Symposium: Deconstructing Ferguson One Year Later
We have spent this week reflecting upon what “Ferguson” means in this moment. As Clarissa Hayward and I noted at the outset of this symposium, we think this moment is about the nature of racial inequality and hierarchy in the contemporary United States and what steps we might take to address this. Our blog contributors this week have offered different approaches to tackling this problem. Ben Justice, for example, explains that we cannot make progress until we have a “shared sense of reality” – a sense that seems fundamentally missing when African Americans’ understanding of policing is completely at odds with the understanding that many whites have. There are signs that there is a growing shared reality. Just after Michael Brown’s death, numerous polls and reports recounted the vast racial divide in the perceptions of Black Americans and white Americans about the incident. One year later, there is some movement toward convergence – a shared reality – but we still have a long way to go. Today a majority of whites (53%) agree that the country “needs to continue making changes to give blacks equal rights with whites” compared to about 4 in 10 registering the same sentiment over the last several years.
One way of understanding what must be done is to reflect upon what is necessary to achieve a shared reality. Some commentators in this moment are quite pessimistic. In his new book, Between the World and Me, Ta’Nehsi Coates, speaking to his son about the Dreamer (those who in James Baldwin’s words “think they are white”) says:
[D]o not struggle for the Dreamers. Hope for them. Pray for them, if you are so moved. But do not pin your struggle on their conversion. The Dreamers will have to learn to struggle themselves, to understand that the field for their Dream, the stage where they have painted themselves white, is the deathbed of us all.
Others, such as Clifton Kinnie are more optimistic. Perhaps it is Kinnie’s youth talking, but I am hopeful that history also supports his view. Coates’s pessimism is grounded in history, too, but his trenchant account does not address what we might consider the successes of the First and Second Reconstructions. The First Reconstruction, while widely considered to be a failure, did establish a constitutional legal framework upon which the Second Reconstruction by the Civil Rights Movementbuilt establish voting rights for African Americans and schools and commercial establishments. It is nonetheless true that the moment in which we find ourselves today clear evidence of the failures of the Second Reconstruction. For all its success the Civil Rights Movement did not enable the nation as a whole and white America in particular to appreciate that so many African Americans remain “Stuck in Place.”
Against my better judgment, I remain convinced law has a role to play here. The Civil Rights movement is a perfect example of the way in which social movements leverage law to achieve change. Consistent with this approach, the #Blacklivesmatter movement has a legal target, although its goals are not necessarily policyoriented. For example, the Blacklivesmatter lists as one of the groups demands that the Attorney General “release the names of all officers involved in killing black people within the last five years, both while on patrol and in custody, so they can be brought to justice.” Additionally the group advocates redirection of law enforcement spending toward social programming supporting education, housing and jobs. One might think of these approaches as representing individual-level and structural strategies. Because I think it unlikely real change will be achieved through individual level change, I tend to favor structural approaches. The group’s call for redistribution of resources meets the historical disinvestment and wrongful government policy decisions that deprived African Americans of access to good neighborhoods, good schools and good jobs, “locking in” white advantage.
I think law can do more. Redistribution, yes. But deep structural change in the law’s orientation towards all citizens especially in the operation of the criminal justice system also is necessary.
To see why consider how a handful of Chicago teens interviewed by the Invisible Institute recount their experiences with Chicago police. One of the interviewers, Professor Craig Futterman, describes the world that the kids live in as one governed by an alternative constitution. That description resonates.At its essence saying to a legal authority, “I want you to treat me as someone who counts in your eyes. Everything you do has to demonstrate this to me.”
Thus, we are in a moment in which we are attempting to understand and work toward the terms of citizenship in a very real way that either the First nor the Second Reconstructions achieved even while they may have provided the legal architecture for doing so. The Constitution through the Reconstruction Amendments, and Congress through the Civil Rights Act and the Voting Rights Act provided what we might think of as a formal curriculum of citizenship. These laws tell us who we are we value freedoms of all individuals. But how police treat people in public and especially neighborhoods such as those in which the Chicago teens reside offers a “hidden curriculum” that is inconsistent with the formal curriculum. When the hidden curriculum clashes with the formal curriculum we are provided with instruction regarding who is and who is not a citizen. Citizens are those whose treatment is consistent with the formal curriculum of rights, while the anti-citizen gets the alternative constitution.
Once we have system in which the formal and hidden curricula are the same for everyone we will have achieved the goal of the Third Reconstruction. Let’s hope we are on the path to its achievement.
Tracey L. Meares is Walton Hale Hamilton Professor of Law at Yale Law School. You can reach her by e-mail at tracey.meares at yale.edu