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Applying Basic Political and Legal Principles in Addressing Our Current Crisis
America's ongoing racial strife should prompt deep reflection. Professors who have dedicated their careers to studying law, government, political science, and history should share their expertise by providing reasoned opinions, while humbly recognizing that we have limited policy influence. In this spirit, I have tried to identify certain core legal and political ideas and realities that Americans should keep in mind as we work through our current serious problems.
FIRST, in our constitutional democracy, governments must protect people from two harms: (1) criminal activity, particularly injury to one's person or property; and (2) discrimination or other abuse based on inherent characteristics, most notably race. American governments at all levels -- local, state, and federal -- have failed to adequately provide both kinds of protection.
SECOND, to remedy this problem at its most basic level, each government must properly train and deploy police and other law enforcement officials -- and hold them responsible when they use their positions of authority to violate people's rights to equal treatment and liberty. Such accountability has been lacking, especially in cities where governments have executed agreements with police unions that make it extremely difficult to discipline or remove offending officers. Derek Chauvin, whose killing of George Floyd ignited the current protests, is merely one example. The lack of accountability for bad cops also tarnishes the reputation of the many officers who courageously work to protect the public.
THIRD, when government officials abandon their duty of proper law enforcement, the urban poor -- particularly minority communities -- are especially vulnerable. During ordinary times, such government abdication often takes the form of allowing the use of unnecessary, excessive, and sometimes lethal force against African Americans and other groups. During times of unrest, such abdication means allowing criminal activity -- looting, arson, assault, and murder -- that has a hugely disproportionate impact on minority communities. History teaches that urban areas victimized by such misconduct recover extremely slowly, if at all.
FOURTH, governments must respect the constitutional rights of Americans to peacefully assemble and protest, but must also impose reasonable restrictions necessary to protect public health, safety, and welfare. Therefore, we should carefully distinguish legitimate protesters from those who are engaged in criminal activities.
FIFTH, Americans must continue their efforts to eliminate race discrimination in criminal justice, education, employment, housing, health care, and other areas. Reasonable people acting in good faith will disagree, however, on the best specific policies to achieve those goals. Therefore, we should work together to consider a variety of approaches, not demonize anyone who disagrees with us.
Robert Pushaw is James Wilson Endowed Professor of Constitutional Law at Pepperdine University Caruso School of Law. You can reach him by e-mail at robert.pushaw at pepperdine.edu Posted
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