Black Lives Matter Might Just Rescue American Democracy

The past weeks in the United States have produced two horrifying varieties of violence.

First, and all too familiar, the police killings of Breonna Taylor in Louisville, George Floyd in Minneapolis, and Rayshard Brooks in Atlanta follow a long and awful tradition of brutal state violence directed against Black Americans, beginning with chattel slavery and extending through the fugitive slave laws, lynchings, and right up to the present. The Black Lives Matter movement, which rose to prominence after earlier police killings of Eric Garner in New York City and Michael Brown in Ferguson, Missouri, rightly emphasizes this terrible lineage and contends that achieving racial justice today requires coming to terms with the past.

Second, and less familiar, we see an American president openly embracing tools of authoritarian rule. President Donald Trump has incited violence against peaceful protesters, threatening to use “vicious dogs” and “ominous weapons” against them and demanding that the authorities “dominate” citizens gathered to express their values. At the same time, the police have responded with documented instances of violence against members of the press seeking to cover the protests, while military units and military equipment have been deployed against peaceful protesters in Washington D.C. and threatened against protesters throughout the country.

These two injustices — racism and authoritarianism — may seem merely to coincide, perhaps because of the person who happens now to occupy the White House. But they are, at least at this moment in American history, deeply intertwined. The writer Akilah Green observes (in a Tweet) that “Police are now brutalizing everyone just to maintain their ability to brutalize black people.” This is more than a Twitter slogan:  it captures a deep and powerful social logic. 

The Intertwined Evils of Racism and Authoritarianism

In the current American context, racism invites authoritarianism by pervasively corrupting the way in which the state deploys its power. This has long been clear in communities of color and has now simply become apparent to everyone else. State-sanctioned police violence against Black people has encouraged police forces that have become militarized, both through their equipment and their mindset, and that now suppresses protesters generally.

In the United States, police too often function domestically as an occupying army does in an empire, and they inevitably learn the authoritarian lessons of the occupier, treating those they are meant to protect not as citizens to be respected but as threats to be controlled. The Pentagon’s 1033 program, which transfers surplus military equipment to civilian police departments, even redeploys the weapons of empire on the home front.

The racism paves the way for authoritarianism by another means, as well: It breeds distrust of state institutions and the democratic traditions that have governed them. The police, after all, operate within a political system that has created and deployed them as among the most visible representatives of governing institutions in the state or city where they work. The ways in which they then not only engage in racist violence but literally police racial boundaries — Monica Bell calls it “pro-segregation policing” — necessarily alienate citizens from the institutions that oversee them.

How can democracy and ordinary politics be defended when it manifests in this way? This situation gives those sick of the racism they see emanating from the police good reason to conclude that free and fair elections and the rule of law cannot be the answer — because elections and law enforcement have produced the system that now enables systematic repression. Indeed, when people are being killed, calls for abiding by democratic norms and the rule of law can seem quietist or, worse, as denying the urgency of fighting white supremacy. The “rule of law” becomes tainted by the agenda of “law and order.”

What we have learned is that the two injustices — racism and authoritarianism — must now be cured together.

Recognizing and acknowledging the racism — and in particular anti-blackness — that has always pervaded our politics and political institutions is the necessary first step toward resuscitating those institutions as true tools of justice and thus worthy of defense and support by the people who are protesting for their basic human rights. Meanwhile, the rule of law — restrictions on arbitrary state violence and the requirement that power be justified, always, to those against whom it is used — is an essential protection for Black people and other people of color, even while it is not sufficient, in itself, to address racial injustice.

If the authoritarian tactics adopted to suppress Black Lives Matter, including militarized police and active-duty soldiers, are allowed to succeed, this will exacerbate racism, engendering even harsher policing against Black Americans. On the other hand, respecting the protests trains the police to respect the protesters more broadly. Green’s logic can work in reverse as well:  just as racist police brutality coarsens the state to become generally abusive, so a state educated to respect its citizens will teach its police anti-racism as well.

Steps to End Both Menaces

How do we achieve this? It will require a range of policies designed to address both sets of problems.

First and foremost, it is essential to end systemic racism in our police and other public institutions. The rallying cry of the protesters to “defund the police” has been rejected by many on the left, most notably presumptive Democratic presidential nominee Joe Biden and House Speaker Nancy Pelosi, as too radical.

But it is worth looking behind the slogan. It means different things to different people, but it includes moving some of the funding that has been used to militarize police departments over the last couple of decades and redirecting that money to government or nonprofit community-based programs that serve and empower rather than tyrannizing communities of color: public education, enhanced social services for the poor, and, importantly, mental health services. It means reforming emergency services to recognize that an officer with a gun is not always the right person to respond to every call. It requires getting armed officers out of our schools, where they fuel the school-to-prison pipeline. And it means ending racial profiling generally. Fighting racism in these ways also promotes the rule of law, by checking state institutions that control people through violence and boosting institutions that empower democratic citizenship.

Second, it is necessary to promote and protect the rule of law directly. It is true that law enforcement has too often been a tool of white supremacy, but real rule of law—which requires equal treatment under that law—can be deployed to undermine white supremacy. The rule of law guarantees all people the right to be free from excessive use of force and not to be deprived of their life or their liberty without due process of law.

To that end, every level of government — federal, state, local — must embrace general limits on police violence. The police should, at a minimum, be trained to de-escalate conflict rather than dominate every dispute. Perhaps they should be prohibited from using force to combat petty crimes, so that nobody is ever even manhandled for jaywalking. There are already first steps in the right direction: The Obama Foundation has issued a Mayor’s Pledge that commits mayors to take concrete steps to introduce “common-sense limits on police use of force,” and new legislation in Congress aims to crack down on police brutality. When state violence is disproportionately directed at Black people, categorical limits on violence would promote racial justice and rule of law at the same time.

A third set of reforms directly concerns the current Black Lives Matter protests, but extends beyond them as well. Congress must take steps to ensure that all people have the right to speak freely, protest peacefully, and call publicly for a redress of their grievances. Freedom of the press — and the capacity of members of the press to report without undue restraint or fear of violence — is essential to this fundamental and Constitutionally protected right. The use of the military against protesting citizens and for political purposes must be prohibited and even taboo. It is deeply undemocratic and corrodes the most basic principles of collective self-government. It is a despotic abuse of the president’s powers as commander in chief and any authority to do so should be eliminated now.

A genius of the Black Lives Matter movement has been to expose these complicated connections. By confronting racist police violence, the movement weaves objections to white supremacy and objections to authoritarianism into a single, integrated accusation. The thuggish responses to the protestors may have been meant to silence the movement, but they have instead vindicated it, and growing support for the protests shows that the movement is persuading the broader public, on both fronts.

By forcing us all to recognize and face up to the deep and longstanding connection between racist and authoritarian violence, Black Lives Matter may just rescue American democracy.

IMAGE: Protesters surround police headquarters on June 14, 2020 in Richmond, Virginia, to protest against police brutality and the killing of George Floyd and to call for the firing of the police officers involved in a hit-and-run against several protesters the night before.  (Photo by Eze Amos/Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Daniel Markovits

Guido Calabresi Professor of Law at Yale Law School and Founding Director of the Center for the Study of Private Law. Follow him on Twitter (@DSMarkovits).