History Tells Us Black Americans Need Better Legal Protection

By Jeff Powell | July 19, 2020, 8:02 PM EDT

Jeff Powell
The murder of George Floyd should teach us many hard truths, and not the least is how to understand the true meaning of freedom and slavery in the context of American history. Though we have sometimes forgotten it, freedom and law are not enemies in the American constitutional system, but partners: Individual liberty involves not simply the ability to do as one wishes, but of equal importance, the ability to call on the community, through its legal system, for protection from the misuse of freedom by others.

In its most famous early decision, Marbury v. Madison, the U.S. Supreme Court considered the question of whether it is possible, in the American system of government, for someone to suffer an injury recognized by the law and yet have no legal means of seeking a remedy. "If he has a right, and that right has been violated, do the laws of this country afford him a remedy?"[1]

The Supreme Court ultimately concluded that Maryland businessman William Marbury needed to file suit in a different court, but the justices rejected as unthinkable the idea that "the laws of this country" could fail to provide him an effective judicial remedy for a violation of his rights.

Chief Justice John Marshall, who wrote for the court, thought that Marbury's attempt to vindicate his claim through law implicated fundamental constitutional principles. To recognize that Marbury had been injured, and yet deny him a remedy in court, would be in a very real sense to deprive him of his freedom, to treat him to that extent as outside the political community that exists in part to safeguard that freedom for all.

As Chief Justice Marshall explained, "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."[2] "Civil liberty," freedom in the American constitutional sense, is by definition shared by everyone within the community, and it becomes a reality only when each individual has effective access to legal remedies. Freedom for any person truly exists only when the laws protect every person.

What Chief Justice Marshall failed even to mention, of course, was the massive contradiction to his principle of civil liberty posed by the existence of slavery. In other early cases, judges who could not follow Marshall in conveniently overlooking the contradiction made various attempts to excuse the presence of slavery in a political system supposedly dedicated to the protection of "every individual," often by asserting that slaves simply weren't part of the community, or that the laws governing them did indeed "protect" them.

But a quarter-century after Marbury v. Madison, the North Carolina Supreme Court offered no such excuses as it made brutally explicit the unspoken corollary to Marbury's definition of freedom as the state of being protected by the law. The question before the state court in State v. Mann was whether to uphold a jury verdict convicting a white man of a "cruel and unwarrantable" assault on an African American slave whose services he had hired from her owner; the court's answer was that the laws did not protect a slave against even the most brutal attack, short of killing, by her master.

"The power of the master must be absolute, to render the submission of the slave perfect."[3] The powerlessness of the slave, her lack of any legal recourse against even cruel and unwarrantable oppression, "is inherent in the relation of master and slave."[4] The very essence of slavery, in other words, is to be excluded, by definition, from the law's protection.  

The State v. Mann court offered none of the common, cheap judicial excuses for the mockery of civil liberty that follows from dividing individual human beings into those the law protects, and those whom the law leaves defenseless. "It constitutes the curse of slavery to both the bond and free portions of our population."[5]

In particular, and remarkably, the Mann judges did not rationalize their brutal conclusion by claiming that slaves, or Black persons generally, were outsiders, aliens to the political community that makes the laws. Instead, State v. Mann candidly admitted that those to whom the court was denying protection were themselves part of the community. "The Court therefore disclaims the power of changing the relation in which these parts of our people stand to each other."[6] "Our people" — or "We the People" as the preamble to the Constitution puts it — is the language of American Constitution-making. Slavery excluded from the law's protection members of the very people who are the source of law.

We can no longer ignore the fact that the curse of slavery is still with us. The heart-rending video of Floyd's last minutes displayed for us the same absolute power, directed against a powerless Black person, that State v. Mann identified as the essence of slavery, not just unchecked by the law but inflicted by officers of the law to the point of murder.

But our response must not be the passivity of the Mann court in the face of injustice. We cannot and therefore we must not disclaim our power to change the tragic reality that the law so often leaves Americans, members of our people, beyond its protection or without access to a legal remedy when they are injured, because they are Black. Eliminating, once and for all, the legacy of slavery will not be the work of a day or a year, but there are concrete measures Congress can and should take immediately to extend the protection of the law to all Americans.

First, we must ensure that individual African Americans unlawfully injured by law enforcement officers have an effective legal remedy.

Since 1871, federal law has in theory authorized legal actions against state and local officials for violating individuals' constitutional rights. Several decades ago, however, the Supreme Court invented, and then extended, a rule of "qualified immunity" that protects against individual liability "all [officials] but the plainly incompetent or those who knowingly violate the law."[7]

A special report published by Reuters in May concluded that under the court's expansive application of the rule, qualified immunity "has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights."[8] While it is possible that the justices may reconsider or tweak their handiwork, the better solution is for Congress to pass the Ending Qualified Immunity Act, which was recently introduced in the House of Representatives.

The possibility that they may be held personally liable for the use of excessive force or some other abuse of their authority will not prevent all police brutality, but qualified immunity effectively gives a green light to such misconduct.

Second, we must ensure that federal employees involved in law enforcement are equally liable when they violate someone's constitutional rights. While federal officers are not covered by the 1871 act, in a 1971 decision called Bivens, the Supreme Court held that a federal court could award money damages to an individual subjected to an egregious and warrantless search in violation of the Fourth Amendment.[9]

Subsequent cases extended the Bivens rule to a couple of other specific constitutional violations, but more recently the court has been consistently unwilling to allow the imposition of liability on federal officials under Bivens. The recent and highly questionable deployment of officers from a hodgepodge of federal agencies to deal with protestors in Washington, D.C., is a forcible reminder that it is not only local police who can pose a threat to freedom. Congress should enact legislation expressly providing for damages actions for any federal-officer violation of individual rights.

Third, Congress should strengthen the 2009 Hate Crimes Act, which currently makes it a federal crime for anyone to cause bodily injury, or attempt to do so using a weapon, "because of the actual or perceived race, color, religion, or national origin of any person." The act's coverage should expand to include any attempt to cause bodily injury regardless of the means employed, and any threat of violence, and to apply to other persons assisting or acting in concert with the actual assailant.

Furthermore, Congress should eliminate the provision limiting prosecutions under the act to certain narrow circumstances.[10] That provision assumes that federal criminal law protection against racially motivated violent crime should be a narrow exception rather than the general rule, but such an assumption is neither appropriate nor constitutionally necessary.

Congress has the power to enforce the Thirteenth Amendment's guarantee of "universal freedom" through legislation that is "primary and direct in its character" (like state criminal law),[11] and in 2013, the U.S. Court of Appeals for the Tenth Circuit upheld the racial violence section of the Hate Crimes Act as a valid means of banning the badges and incidents of slavery, citing State v. Mann as authority for the conclusion that racially motivated violence was "one of slavery's most necessary features."[12]

None of these changes to federal law ought to be controversial or seen as partisan: In fact, all three would provide more effective legal protection to persons of all races against behavior that is in every instance already illegal. That they would be likely to disproportionately benefit African Americans is a product of the fact that existing law falls so far short in protecting those Americans. Congress has no excuse not to take these actions, and we the voters should hold our senators and representatives to account if they fail to act.

Freedom for all of us depends on justice for each of us. None of us have any just claim to civil liberty unless the laws protect all of our people equally. As Marbury v. Madison taught long ago, one of the first duties of this republic is to afford that protection to every individual. That duty must now, at long last, become reality.

H. Jefferson Powell is a professor of law at Duke University School of Law. He is a former deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Marbury v. Madison , 5 U.S. (1 Cranch) 137, 162 (1803).

[2] Id. at 163.

[3] State v. Mann , 13 N.C. (2 Dev.) 263, 266 (1829).

[4] Id. at 267.

[5] Id. at 266-67.

[6] Id. at 267.

[7] Malley v. Briggs , 475 U.S. 335, 341 (1986).

[8] https://web.archive.org/web/20200612051417/https://www.reuters.com/article/us-usa-police-immunity-scotus-specialrep-idUSKBN22K18C.

[9] Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388(1971).

[10] The racial violence provision is codified at 18 U.S.C. § 249(a)(1). Section 249(b)(1) requires certification by the attorney general or his designee before a prosecution may begin, and limits certification to a short list of circumstances.

[11] Civil Rights Cases, 109 U.S. 3, 20 (1883).

[12] United States v. Hatch , 722 F.3d 1193, 1206 (10th Cir. 2013).

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