Chapter 1

Michael Brown, Dignity, and Déjà Vu: From Slavery to Ferguson and Beyond

Christopher Alan Bracey

There is a rhythm to the destruction of black lives by American law enforcement. Each death or episode of brutality strikes at the core of our humanity—a vicious and tragically familiar downbeat. Next is the incendiary cocktail of emotion—anger, sadness, outrage, guilt, and fantasies of retribution. The burst of emotion transitions into exhaustion amid a crescendo of cries for justice. These calls rarely elicit a meaningful response, but instead are routinely met with deflections, or an effort to blame the victim, or worse yet, a deafening silence—a long pause that yields to a familiar lamentation to systemic inaction, a begrudging, tacit acceptance of the status quo, and a swelling sense of racial resentment. Then the universe delivers another downbeat, and the cycle begins anew.

Situated within this rhythm of destruction is the killing of Michael Brown, an unarmed 18-year-old, by Ferguson police officer Darren Wilson and its aftermath—a tragic turn of events that is remarkable and, on a deeper level, entirely unremarkable. Nothing has proven more corrosive to American race relations than the manner in which African Americans are stopped, detained, arrested, defiled, killed, and incarcerated more than any other racial group. The killing of Trayvon Martin, Eric Garner, James Crawford III, Michael Brown, Tamir Rice, Rekia Boyd, Walter Scott, Freddie Gray, Sandra Bland, Samuel DuBose, Laquan McDonald and others and the institutional and popular responses represent only the most recent and publicized incidents through which this rhythm of destruction has played out.¹ It is important to remember that this cycle of brutality, outrage, and inaction is a rhythm of racial oppression that has been pounded into our social conscience, week after week, generation after generation. For nearly half of a millennium, racial oppression has played out through the ritual destruction or defilement of black bodies by law enforcement officials.

The events in Ferguson cannot be dismissed as a social anomaly—a blip on an otherwise steady radar of the post-civil-rights era of racial equality. To the contrary, the shooting of Michael Brown is reflective of a much older and deeper pathology that lies at the core of our shared national identity. The U.S. Constitution declared Americans free from the confines of English aristocracy, and signaled a fundamental commitment to freedom, equality, justice, and prosperity for all.² Yet at the time of its ratification, Negro chattel slavery had existed in America for more than a century.³ America, the world’s beacon of light for freedom and equality, was also the home of one of the most devastating modes of racial oppression the world has ever witnessed—a most peculiar institution committed to the simultaneous valuation, devaluation, commodification, and destruction of black bodies.⁴ In short, a core founding principle of this nation was the belief held by whites that blacks did not possess equal humanity and therefore did not deserve equal treatment—that they could be thoroughly objectified, exiled from civil society, and enslaved for benefit of whites.⁵

This widely accepted percept of American culture, rooted in the ritualistic denial of basic dignity and equal humanity, underlies a great deal of historical racial interactions in American life. It reveals itself in the killing of Michael Brown as well, which may explain in part why his death cut so deeply into the American cultural consciousness. For many of us, but especially perhaps for African Americans, these events are acutely tragic because they repeatedly strike us precisely where we have come to expect it—in that place where our serial racial wounds, from the minute to the magnificent, never seem to receive sufficient time to heal. Officer Wilson may not have committed an offense for which he can be prosecuted under federal civil rights laws. However, the cultural context in which he performed his law enforcement function that resulted in the death of a black child has been revealed as one powerfully shaped by racist attitudes and racially disparate treatment.

For this reason, Michael Brown’s death becomes part of that familiar rhythm. Whether blacks lives are snuffed out by an officer’s bullet, choked out by an officer’s bare hands, or defiled by an officer’s night-stick, the message delivered and received is the same now as it has been before: black lives are not worthy of equal dignity. Once again, African Americans find themselves in the absurd yet familiar position of having to plead their equal humanity—to proclaim that “Black Lives Matter.”⁶

The connection between the Ferguson shooting and our racial past does not end there. Indeed, one cannot fully appreciate what happened in Ferguson without reference to the epic struggle for racial equality in American life. This chapter provides both the theoretical and historio-graphical grounding for a deepened discussion about the shooting of Michael Brown, the popular and institutional reaction, and the prospect of emancipation from the rhythmic destruction of black lives.

The Theoretical Lens: Racial Oppression as Dignity Expropriation

The fact that African Americans once again demand to be treated with basic human dignity—nearly 150 years after the ratification of the Thirteenth and Fourteenth Amendments to the Constitution, 50 years after the passage of the Civil Rights Act of 1964, and nearly a decade after the first African American President of the United States was inaugurated—is a sad but not unsurprising development when the struggle in Ferguson is understood as simply yet another redux of the never-ending struggle to overcome the legacy of attitudes, assumptions, and beliefs about the status of blacks in American life. Put differently, racial oppression, including racially discriminatory law enforcement, is at its core a dignity expropriation enterprise.

By dignity expropriation I mean that racial oppression, particularly when enabled or carried out by the state, is at its most fundamental level an effort to deny the basic dignity and equal humanity of others simply because they are of a different, socially disfavored race.⁷ Like any other act of expropriation, racial oppression seeks to strip away or modify an element of central importance to the individual—basic human dignity—in service of some larger agenda. The means to accomplish this end can be individualized or structural, physical or sociocultural, transient or permanent. Importantly, the act of expropriation is understood, from the perspective of the taker, as entirely justifiable on political, social, or moral grounds. This notion of racial oppression as dignity expropriation is of transhistorical significance because it helps us understand and comprehend more fully all modes of racial oppression, from slavery to Jim Crow to racial profiling to the maintenance of the prison industrial complex.

Humans are communal in nature. As social beings, we define ourselves and often thrive in our relations to one another. Our individual existence often relies upon a larger mutual dependency with other people.⁸ Our social and communal interactions are arguably the key features that designate and distinguish us as fully human.

This communal nature is an essential feature of American democracy. Consider the preamble to the U.S. Constitution, which declares emphatically that “We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States.”⁹ The Constitution, which provides the very foundation of our American national identity, rests upon a deep sense of community and shared destiny.

The discourse of “community” may evoke the image of social and political sanctuary, but it is equally effective at conjuring and delineating boundaries. Communities typically have criteria of membership, and it is this feature of community—the power of inclusion and exclusion—that becomes powerfully relevant in the race context. At the time of the framing of the Constitution, when the American people came together to form a democratic nation of individuals vested with equal dignity and equal humanity, Negroes (slave and free) and other racial minorities were designated as social and political pariahs. How are we to reconcile these two competing phenomena?

The answer, at the time of the founding fathers, rested in the definition of “community.” In American society, the default political community has always been defined largely by citizenship. Chief Justice Roger Taney would later explain in the infamous Dred Scott decision that the rights and protections of the Constitution extended only to members of the relevant political community, which categorically excluded Negro slaves. This was not his personal view, but that of the framers of the Constitution themselves who, “by common consent, had [excluded the Negro race] from civilized Governments and the family of nations, and doomed [Negroes] to slavery.”¹⁰

The placement of Negro slaves outside the relevant political community was of particular consequence in America, where our national identity rests upon the twin premises of basic dignity and equal humanity. The question of citizenship, in Taney’s view, was (and perhaps still is) at bottom a question of humanity. When we acknowledge citizenship or bestow it on an individual, we embrace that individual as a full member of our political family. We are, at the deepest levels, acknowledging and affirming that individual’s essential humanity. We are telling that person that he or she is one of us—our political, social, and cultural equal.

The refusal to recognize Negroes as citizens, as members of the relevant political community, therefore represented far more than a simple status determination by the Court. Rather, it was a statement about the essential humanity of Negroes or perhaps more accurately, the Court’s perception of whether or not Negroes deserved to be treated with equal dignity. Answering that question in the negative, Justice Taney explained:

[Negroes] had for more than a century before been regarded as being an inferior order; and altogether unfit to associate with the white race …; and so far inferior that they had no rights which the white man was bound to respect; and that a the Negro might justly and lawfully be reduced to slavery for [the white man’s] his benefit.¹¹

From this dignitary perspective, the Dred Scott decision is a particularly tragic moment both in American legal and cultural history because it represents such an emphatic rejection of the idea of black humanity. Dred, Harriet, Eliza, and Lizzie Scott, as well as most, if not all, other blacks, did not simply lack equivalent legal status as whites. In the eyes of the highest Court in the land, they were judged to possess a deeper, sociocultural failing. Blacks, according to the Supreme Court, were social and cultural pariahs, unworthy of basic human interaction and certainly not worthy of inclusion in the political community or family of nations. Put differently, the Court’s legal determination that blacks were not worthy of citizenship was simultaneously a denial of their essential human dignity.

One should keep in mind that these dignitary implications are not purely symbolic, but also have distinctly materialist effects as well. That is, dignity expropriation through racial repression is both symbolically stigmatizing—marking someone as an outsider, an “other”—and economically debilitating. The lived experience of the Scotts and generations of black families before and after reveals that dignity expropriation through racial repression leads to inequality in educational and employment opportunities as well as a diminishment of the full range of wealth-generating and life-sustaining activities.

The Dred Scott decision is powerfully illustrative of the idea of racism as dignity expropriation, but it is important to remember that it did not represent a significant departure from what had come before it. As commonly known, the founding of the American Republic embodied a formal commitment to the liberal ideals of freedom, equality, and democracy for all. Yet this formal commitment took shape against the backdrop of devastating modes of racial oppression. Thus, American culture from the outset embodied both the triumph of liberal ideals and an unflinching commitment to the principles and practices of racial subordination, exploitation, pain, and death.¹²

Dignity expropriation lies as the heart of the institution of Negro chattel slavery, which was premised upon the notion that one could own property in man. It was an axiom of plantation society that a slave deserved a life of humiliation for having refused an honorable death.¹³ It was the central animating feature of Indian removal,¹⁴ and Eurocentric immigration and naturalization policy as well.¹⁵ It also drives modern modes of racial oppression, such as employment discrimination, housing discrimination, discriminatory lending practices, and the like. And perhaps most tragically, dignity expropriation is implicated in discriminatory and deadly law enforcement practices like the ones at issue in Ferguson, Missouri.

Dignity Expropriation as Concept in the Modern Era

Basic dignity is (and always has been) a central area of concern in the struggle for racial justice. Early proponents of racial justice were well aware of this connection, although they perhaps did not describe it in precisely these terms. The Reconstruction Amendments, of course, directly repudiated Justice Taney’s declaration in Dred Scott that blacks could not be citizens because they were widely regarded by whites as “being of an inferior order, and altogether unfit to associate with the white race.”¹⁶ Indeed, as others routinely point out, the repudiation of Justice Taney via the Fourteenth Amendment was done in a manner that would grant Congress, in the words of one commentator, substantial enforcement power “to enact certain laws designed to affirm that blacks were equal citizens, worthy of respect and dignity.”¹⁷

The dignitary interests attended to by the Reconstruction Amendments were openly acknowledged and affirmed in the Court’s first interpretation of those amendments in the Slaughterhouse Cases.¹⁸ Justice Samuel Miller, writing for the majority, stated unequivocally that the Reconstruction Amendments should be interpreted in light of their overriding purpose: “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”¹⁹ The Court reiterated this sentiment eight years later in Strauder v. West Virginia. Justice William Strong, in striking down a West Virginia statute that systematically excluded black jurors from participation in trials, addressed the twin dignitary concerns of self-worth and social value with surprising candor:

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to the race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure to all others.²⁰

Despite these episodic acknowledgments of the interests of dignity, the early 20th century would become infamous as a period of radical expansion of segregation and racial repression.²¹ Although the latter half of the 20th century would provide an important resurgence of human dignity as a concept in American law and culture, dignity remains an underappreciated value within society.²² The evasion of the interests of dignity today represents a crucial failing because it deprives us of a coherent and comprehensive moral vision or theory of racial justice. Law and culture that overlook the dignitary harm of racial oppression are fundamentally nonresponsive to the core feature of racial inequality. This may explain why contemporary race jurisprudence—civil rights and constitutional law cases dealing with race matters—remains fundamentally unsatisfying: whatever it is doing, it is not doing the work of cultural remediation, of replacing prevailing attitudes of complacency and indifference to racial disparities with a culture fundamentally committed to basic dignity and equal humanity.

Dignity Expropriation and Police Culture in Ferguson: The Department of Justice Reports

The events in Ferguson, Missouri, reveal a police culture trafficking in the ritual denial of equal dignity and equal humanity to African Americans. Indeed, the pattern of disparate law enforcement in Ferguson uncovered by the postshooting Department of Justice (DOJ) investigation bears an eerie resemblance to disparate law enforcement of the late 19th century that was explicitly designed to oppress Negro slaves and newly emancipated blacks. A brief review of the DOJ’s findings highlights how racially disparate law enforcement in the modern era—at least in Ferguson, Missouri—is part and parcel of the long-standing dignity expropriation exercise.

The DOJ completed its investigation of the shooting in March 2015, and issued a report in which it concluded that the evidence was insufficient to support the criminal prosecution of police officer Darren Wilson for the shooting of Michael Brown, an unarmed 18-year-old, the previous summer.²³ Officer Wilson had testified that he feared for his life after Brown first tried to grab his gun and then came toward him in a threatening manner.²⁴ The DOJ found that Wilson’s account was corroborated by physical evidence and eyewitness testimony. Given Officer Wilson’s perception of the threat posed by Brown, DOJ investigators determined that it would prove difficult to establish that Wilson “willfully”—that is, knowing that it was against the law to do so—used unreasonable force against Brown.²⁵ Thus, the DOJ investigators concluded that there was not a sufficient basis upon which to prosecute Officer Wilson for a specific civil rights violation in connection with the shooting.

However, the DOJ released a second, and far more unsettling, report on the overall police culture in Ferguson.²⁶ In this second report, investigators describe “a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law.”²⁷ At nearly every stage of law enforcement, there appear to be truly surprising racial disparities.

For instance, the percentage of African Americans among persons charged with petty offenses (95 percent of persons charged with “Manner of Walking on Roadway,” 94 percent of persons charged with “Failure to Comply,” and 92 percent of persons charged with “Peace Disturbance”) is unusually high given that African Americans comprise 67 percent of Ferguson’s total population.²⁸ A similar pattern was revealed in the context of vehicle stops and arrests: DOJ investigators found that African Americans represented 85 percent of people subjected to a vehicle stop, 90 percent of people who received a citation, and 93 percent of people arrested pursuant to a stop.²⁹ Interestingly, investigators found that African Americans are more than twice as likely as white drivers to be searched during vehicle stops, but are found in possession of contraband 26 percent less often than white drivers—a fact “suggesting officers are impermissibly considering race as a factor when determining whether to search.”³⁰

Racial bias and excessive harshness seem to permeate police culture in Ferguson. DOJ investigators found that African Americans were more likely to receive multiple citations based upon a single incident. During the same data collection period, the Ferguson Police Department issued four or more citations to African Americans on 73 occasions, but issued four or more citations to non-African Americans only twice.³¹ Similarly, African Americans seem overly common targets for the use of unreasonable force. Eighty-eight percent of documented force used by Ferguson police officers was used against African Americans.³² One hundred percent of the 14 canine-bite incidents during the data collection period happened to African Americans.³³

Racist jokes e-mailed by Ferguson police officers to one another about the First Family and blacks more generally also provide a window into a police culture suffused with racism. A few of these e-mails trafficked in familiar outmoded racial stereotypes. For example, one e-mail noted that President Obama was unlikely to complete his term because “what black man holds a steady job for four years.”³⁴ Others simply demonstrated a striking level of cultural insensitivity, such as one that included a photo of a bare-chested group of black women, seemingly dancing in Africa, with the caption, “Michelle Obama’s High School Reunion.”³⁵ Still others proved downright hateful and disrespectful of blacks as a class of people, whether ascribing minstrel dialect to blacks, or suggesting that the correlation between race and criminality is so strong that a black woman should receive a cash award from “Crimestoppers” for having aborted her black baby.³⁶ This is the cultural context in which Officer Darren Wilson performed his duties as a law enforcement official for the Town of Ferguson—a town in which the majority of residents are African American. Although these findings might not sustain a criminal prosecution, they are powerfully indicative of a culture that does not view African Americans as worthy of equal dignity.

Historical Antecedents: From Slavery to Ferguson

The sickness reflected in Ferguson’s police culture has deep historical roots. To be sure, there has been substantial racial progress in this country. The fundamental ideals of freedom, justice, and equality that were denied to blacks well into the 20th century are now enjoyed as a matter of course by millions of African Americans. But it is also true, despite the radical expansion and transformation of these liberal ideals and significant progress in American race relations, that racism, racial inequality, and the corresponding denial of basic human dignity remain naturalized elements within the American cultural landscape. And it is often the case that these norms of racial oppression get instantiated in our criminal laws and law enforcement policies.

If one were to look back in an effort to identify historical antecedents to the racially disparate treatment by law enforcement officials at issue in Ferguson, one might very well begin with a review of slave codes. Slave codes, of course, were laws enacted by whites that applied specifically to Negro slaves. Although some provisions did apply to whites and free blacks,³⁷ the general thrust of these laws was to construct a parallel system of laws designed to manage interactions that slaves had with nonslaves and each other, and to generally reinforce the core values of the slavery regime—the monetary value of slaves as property, the security of the master class, and public tranquility for those concerned.³⁸

In most jurisdictions, the slave codes contained specific criminal offenses, authorized punishments, and rules of criminal procedure that applied only to Negro slaves and free Negroes. For example, the first specific crime listed in the Virginia slave code was “rape of a white woman,” which was punishable by death.³⁹ The second specific crime listed was murder of a white person, which was also punishable by death.⁴⁰ Further down the list, one discovers that slaves could be punished by stripes (i.e., public flogging) for “provoking language or menacing gestures to a white person.”⁴¹ None of these offenses or their corresponding punishments applied to whites.

Contrary to popular belief, many slave code provisions applied to free Negroes as well. In Virginia, free Negroes were required to register with the county in which they resided—not unlike modern-day sex offenders—because of the inherent danger they posed.⁴² Furthermore, every white person in Virginia was empowered by law to make an arrest of a person accused of being a runaway, and could demand a reward,⁴³ which predictably made free blacks the target of increased harassment under the guise of law enforcement. At the same time, free blacks were constrained in their ability to defend themselves fully against whites or anyone else. Possession of a weapon, which would have been useful and perhaps necessary to fend off would-be slave catchers, was illegal under Virginia law and punishable by stripes.⁴⁴

The DOJ investigators found that Ferguson town officials engaged in racially disparate assessment of fines and court fees against black Ferguson residents. These fines and fees imposed significant and, in some cases, severe, financial hardship against a population already disproportionately poor in order to secure funds to maintain the very institutions (the police and court system) engaging in the discrimination. This particular mode of oppression has its roots in the antebellum era as well. Particularly instructive on this point is the Fugitive Slave Act of 1850,⁴⁵ a federal law designed to facilitate the orderly return of runaway slaves to their masters. The practice of slave catching was a notoriously messy business, with unscrupulous slave catchers often attempting to claim free blacks as slaves that would then be subsequently sold at auctions. When citizens of northern states began to interfere with slave catchers, Congress stepped in to ensure that proper protocol was respected.

The Fugitive Slave Act established the creation of commissioners who would receive all claims on runaway slaves. A summary review process was required before any slave catcher would be allowed to remove a Negro from the jurisdiction. However, commissioners would be compensated differently, depending on how they ruled on the slave catcher’s claim. Specifically, if the commissioner denied the slave catcher’s request for a certification of removal, then the commissioner would receive a fee of $5.⁴⁶ If, however, the commissioner granted a slave catcher’s certificate of removal (i.e., validated the claim), the commissioner would receive double that amount, or $10, as his fee. Thus, the slave catchers and commissioners, much like Ferguson law enforcement and court personnel, had a strong financial incentive to request and grant certificates of removal—perhaps even in circumstances where removal was not warranted.

The same was true after the Civil War and ratification of the Thirteenth Amendment, which abolished slavery. All southern black codes relied on vagrancy laws to pressure freedmen to sign labor contracts. South Carolina’s Code, enacted a mere 12 days after ratification of the Thirteenth Amendment, did not limit these laws to unemployed persons, but included others such as peddlers and gamblers.⁴⁷ The Code provided that vagrants could be arrested and imprisoned for up to one year hard labor.⁴⁸ But the county sheriff could “hire out” black vagrants to a white employer to work off their punishment. The courts customarily waived such punishment for white vagrants, allowing them to take an oath of poverty instead. The custom of convict leasing in South Carolina and other southern states enabled those jurisdictions to generate substantial revenues on the backs of victims of discriminatory law enforcement—much like the assessment of racial disparate fines and court fees in Ferguson.⁴⁹

The Familiar Call for Equal Dignity

#BlackLivesMatter⁵⁰ is a painful reminder that the call for equal dignity and equal humanity has, in certain segments of society, remained fundamentally unanswered. Whether it is Sojourner Truth’s “Ain’t I a Woman,”⁵¹ Fredrick Douglass’s emphatic claim that the Negro is “self-evidently a man, and therefore entitled to all the rights and privileges which belong to human nature,”⁵² Malcolm X’s insurgent demand for dignity,⁵³ Martin Luther King’s dream for equality,⁵⁴ or Rodney King’s nonrhetorical question “Can we all get along?,”⁵⁵ each generation has called for justice with the full knowledge that such cries routinely fall upon deaf ears.

For many of us, the sad truth is that we have been conditioned over the years to expect and, to some extent, accept the sorry state of affairs produced by decades of efforts to deprive blacks of their dignity—the reality of racial disparities reflected in virtually every index of socioeconomic well-being. The police culture in Ferguson is part and parcel of a larger and perhaps more insidious culture of racial inequality. How exactly does one go about eradicating the culture of racial inequality—this centuries-old enterprise of dignity expropriation that continues to confound us today? How are we to remedy a culture that for nearly half a millennium has worked the magic of blunting our collective sense of outrage over the profoundly uncivil and unequal treatment of racial minorities in America?

The most obvious response is to promote a culture of racial equality and racial inclusiveness. But how exactly does one do that? In my view, the key to accomplishing this may lie in placing greater emphasis on the issue of paramount importance to the Dred Scotts of the past, to black Americans of the present, and to the future Michael Browns: the acknowledgment and deep affirmance of equal dignity and equal humanity of all races, enforceable by law.

This requires us to historicize, contextualize, and deepen our public conversation about race in American society. One cannot acknowledge another’s equal humanity without first interrogating the nature of that person’s humanity, as well as one’s own. This entails, among other things, a strong consideration of the lived experience of racial minorities as well as a thorough examination and appreciation of both the historical and present forms of oppression that provide content to the peculiar racial reality of subordinated racial groups. For African Americans, this may entail a deepened sense of appreciation of how the legacy of slavery, segregation, and stubborn beliefs in cultural inferiority continue to negatively impact their lives. For Latinos, this may entail a greater appreciation of the ritual degradation and ethnic discrimination experienced by immigrant, low-skilled workers as well as members of established Latino communities that is not altogether different from the African American experience. For Native Americans, this may entail a greater sensitivity regarding the extended history of governmental and nongovernmental oppression, alienation, and stereotyping that continue to constrain social and economic mobility of indigenous Americans. For Asian Americans, this may entail a greater appreciation of how the legacy of alienation and marginalization exemplified by racist naturalization policy, labor exploitation, and internment feed contemporary mythology of Asian Americans as “perpetual foreigners” that plagues and confounds second-, third-, and fourth-generation Asian American citizens.

At the same time, affirmance of equal dignity and equal humanity also demands that we take seriously the task of examining and dismantling existing barriers to social inclusion. If whites are to affirm the dignity and presumptive worthiness of inclusion of racial minorities, a necessary precondition is that whites examine critically and self-consciously not only the effects of racial subordination on minorities, but the myriad ways in which the culture of racial subordination has distorted and disfigured majority society in general and white identities in particular. That is, dignity demands that whites not only indulge the prospect of an ever-expanding circle of people deserving respect, but also reflexively examine the question of what allows some white Americans to see racial minorities as their presumptive inferiors and unworthy compatriots in the first place. This requires a level of reflection and introspection that few institutions and even fewer individuals are willing to voluntarily undertake. Such an admission not only opens one up to stigmatic injury (having been denoted a racist), but also to legitimate claims for significant racial redress.

Michael Brown’s death is yet another vicious downbeat in the rhythmic assault on black humanity—a tradition of oppression that has been a part of the American cultural consciousness since the founding era. We know this absurdly tragic and familiar pattern all too well. We now assert our collective demand for equal dignity and humanity, as we have so many times before. History teaches us that for racial minorities, and blacks in particular, respect and equal humanity have proven notoriously difficult to secure. Consider the words of Brown University professor and race scholar Glenn Loury, who reminds us that “people do not freely give the presumption of equal humanity. Only philosophers do that…. [T]he rest of us tend to ration the extent to which we will presume an equal humanity of our fellows.”⁵⁶ The criminal indictments of police officers involved in the deaths of Walter Scott in North Charleston, Freddie Gray in Baltimore, Samuel DuBose in Cincinnati, and Laquan McDonald in Chicago. give reason to be optimistic.⁵⁷ Perhaps things will be different this time. If not, we must nevertheless remain vigilant and press on in pursuit of equal dignity—either because we imagine some future victory for racial minorities in America, or because, in the final analysis, we really have no other choice.

Notes

1. Deborah E. Bloom & Jareen Imam, New York Man Dies after Chokehold by Police, CNN (Dec. 8, 2014, 5:31 AM), http://www.cnn.com/2014/07/20/justice/ny-chokehold-death/ (Eric Garner); Michael Pearson & Greg Botelho, 5 Things to Know about the George Zimmerman-Trayvon Martin Saga, CNN (Feb. 26, 2012, 10:51 AM), http://www.cnn.com/2013/02/25/justice/florida-zimmerman-5-things/index.html?iid=article_sidebar (Trayvon Martin); Elahe Izadi & Peter Holley, Video Shows Officer Shooting 12-Year-Old Tamir Rice within Seconds, WASH. POST, Nov. 26, 2014, http://www.washingtonpost.com/news/post-nation/wp/2014/11/26/officials-release-video-names-in-fatal-police-shooting-of-12-year-old-cleveland-boy/ (Tamir Rice); Mark Berman, Wesley Lowery & Kimberly Kind, South Carolina Police Officer Charged with Murder after Shooting Man during Traffic Stop, WASH. POST, Apr. 7, 2015, http://www.washingtonpost.com/news/post-nation/wp/2015/04/07/south-carolina-police-officer-will-be-charged-with-murder-after-shooting/ (Walter Scott); Sasha Goldstein, Chicago Cop Charged with Killing Unarmed Young Woman during Off-Duty Confrontation, NY DAILY NEWS, Nov. 25, 2013, http://www.nydailynews.com/news/crime/chicago-charged-killing-unarmed-young-woman-article-1.1529041 (Rekia Boyd); Evan Bleier, How Did a 27-Year-Old Black Man Die of an Almost Severed Spine after He Was Arrested? Baltimore Investigates Mystery Death, May 5, 2015, http://www.dailymail.co.uk/news/article-3045937/Baltimore-hospital-says-man-injured-police-encounter-dies.html#ixzz3Yi3tlqmx (Freddie Gray); Chicago Cop Indicted on 6 Murder Counts in Laquan McDonald Slaying, Chicago Tribune, Dec. 18, 2015, http://www.chicagotribune.com/news/local/breaking/ct-jason-van-dyke-indictedlaquan-mcdonald-met-20151216-story.html (Laquan McDonald).

2. U.S. CONST. pmbl.

3. A. LEON HIGGINBOTHAM, IN THE MATTER OF COLOR 26 (1982).

4. For an interesting discussion of the valuation, devaluation, and commodification of black lives, see Robert Evans, Jr., The Economy of Negro Slavery, in ASPECTS OF LABOR ECONOMICS 185–256 (1962).

5. Prigg v. Pennsylvania, 41 U.S. 539 (1842); Dred Scott v. Sandford, 60 U.S. 393 (1857).

6. The #BlackLivesMatter movement began as a hashtag after George Zimmerman’s acquittal for the shooting death of Trayvon Martin in 2013, and gained momentum after the shooting of Michael Brown. For more information, visit http://www.blacklivesmatter.com (last visited June 24, 2015).

7. For more on the importance of dignity in the race relations context, see Christopher A. Bracey, Dignity in Race Jurisprudence, 7 U. PA. J. CONST. L. 669 (2005).

8. See ANDREW FAGAN, HUMAN RIGHTS: CONFRONTING MYTHS AND MISUNDERSTANDINGS 136 (2009) (“Human rights exist … because of the degree to which we are exposed to one another and, to some extent and in some respects, mutually dependent upon one another.”).

9. U.S. CONST. pmbl.

10. Dred Scott, 60 U.S. at 410.

11. Id. at 407.

12. Compare U.S. CONST. pmbl. (“We the people of the United States, in order to … secure the blessings of liberty to ourselves and our posterity do ordain and establish this Constitution….”), with U.S. CONST. art. I, § 2, cl. 3 (counting Negro slaves as three-fifths of one person for political representation purposes), repealed by U.S. CONST. amend. 14, and U.S. CONST. art I, § 9, cl. 1 (allowing for the importation and federal taxing of slave labor until 1808), repealed by 9 Cong. ch. 22, Mar. 2, 1807, 2 Stat. 426, and U.S. CONST. art. IV, § 2, cl. 3 (creating a constitutional right to the return of fugitive slaves), and U.S. CONST. art. V (prohibiting amendment of the slave importation and taxation provision of the Constitution prior to 1808). As former president John Quincy Adams famously explained, “[C]ircumlocutions are the fig-leaves under which these parts of the body politic are decently concealed.” JOHN QUINCY ADAMS, ARGUMENT OF JOHN QUINCY ADAMS, BEFORE THE SUPREME COURT OF THE UNITED STATES (1841), in THE CASE OF THE UNITED STATES, APPELLANTS, VS. CINQUE, AND OTHERS, AFRICANS, CAPTURED IN THE SCHOONER AMISTAD 39 (1969). See also KWAME TURE (STOKELY CARMICHAEL) & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION 29 (Vintage 1992) (“From the time black people were introduced into this country, their condition has fostered human indignity and the denial of respect. Born into this society today, black people begin to doubt themselves, their worth as human beings. Self-respect becomes almost impossible.”).

13. KENNETH GREENBERG, HONOR & SLAVERY 109 (1996). It is important to remember that degradation, dishonor, and remarkable disparities in socioeconomic well-being were both the desired and intended consequences of slavery. See ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY 182, 183 (1982).

14. See Worcester v. Georgia, 31 U.S. 515 (1832).

15. See Ping v. United States, 130 U.S. 581 (1889) (Chinese Exclusion Case)

16. Dred Scott, 60 U.S. at 407.

17. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 105 (2000).

18. Slaughterhouse Cases, 83 U.S. 36 (1873).

19. Id. at 71.

20. Strauder v. West Virginia, 100 U.S. 303, 307 (1880).

21. For a discussion of the explosion in segregation laws across the country following the Court’s decision in Plessy v. Ferguson, 163 U.S. 537 (1954) (upholding racial segregation state laws under the separate but equal doctrine), see THE ORIGINS OF SEGREGATION (Joel Williamson ed., 1968); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 97–109 (3d ed. 1974) (noting spread of Jim Crow laws both before and after Plessy, which had the effect of “constantly pushing the Negro farther down”); C. VANN WOODWARD, ORIGINS OF THE NEW SOUTH 1877–1913, 211–12 (Wendell Holmes Stephenson & E. Merton Coulter eds., 1951) (“It took a lot of ritual and Jim Crow to bolster the creed of white supremacy in the bosom of a white man working for a black man’s wages.”).

22. In the late 20th century, dignity began to figure more prominently in Eighth Amendment jurisprudence. See Furman v. Georgia, 408 U.S. 238, 270 (1972) (Brennan, J., concurring) (“The primary principle [advanced by the Eighth Amendment’s prohibition on cruel and unusual punishment] is that a punishment must not be so severe as to be degrading to the dignity of human beings.”). More recently, the Court has championed human dignity in the sexual orientation context. See Obergefell v. Hodge, 576 U.S. ___ (2015) (declaring that all states must recognize gay marriages because “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”); Lawrence v. Texas, 539 U.S. 558 (2003) (invoking the concepts of respect and equal dignity in striking down Texas statutory ban on sodomy).

23. DEP’T OF JUSTICE, DEPARTMENT OF JUSTICE REPORT REGARDING THE CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON, MISSOURI POLICE OFFICER DARREN WILSON 78–85 (2015), http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.

24. Id. at 6.

25. Id. at 85–86.

26. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT (2015), http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.

27. Id. at 1.

28. Id. at 4.

29. Id.

30. Id.

31. Id. at 5.

32. Id.

33. Id.

34. Id. at 72.

35. Id.

36. Id. (quoting an e-mail stating “An African-American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $5,000. She phoned the hospital to ask who it was from. The hospital said, ‘Crimestoppers.’”).

37. See, e.g., VA. CODE tit. 54, ch. 190, § 32 (1849) (denoting it a crime for a white person to “assemble with Negroes for the purpose of instructing them to read or write”).

38. State v. Mann, 13 N.C. 263, 268 (1829) (“[I]t will be the imperative duty of the Judges to recognize the full dominion of the owner over the slave [as] this dominion is essential to the value of slaves as property, to the security of the master, and the public tranquility.”).

39. VA. CODE tit. 54, ch. 100, § 1 (1849).

40. Id. § 2.

41. Id. § 8.

42. Id. tit. 30, ch. 107, §§ 1–3, 6.

43. Id. tit. 30, ch. 105, § 4.

44. Id. § 8.

45. Act of Sept. 18, 1850, ch. 60, 9 Stat. 462.

46. Id. at § 8.

47. SOUTH CAROLINA BLACK CODE, reprinted in CIVIL RIGHTS AND THE AMERICAN NEGRO: A DOCUMENTARY HISTORY (Albert Blaustein & Robert Zangrando eds. 1968).

48. Id. at 224–25.

49. For more on convict leasing, see MATTHEW MANCINI, ONE DIES, GET ANOTHER: CONVICT LEASING IN THE AMERICAN SOUTH 1886–1928 (1996).

50. See supra text accompanying note 6.

51. The conventional narrative is that Sojourner Truth delivered this signature line in connection with a speech delivered in May 1851 at the Women’s Convention in Akron, Ohio. That speech was subsequently published in The History of Woman Suffrage, which was edited by Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage. But according to at least one scholar, the phrase “Ain’t I a Woman?” was never uttered by Sojourner Truth herself, but instead was introduced by the publisher as an embellishment to the original speech. See MAXINE LEEDS CRAIG, AIN’T I A BEAUTY QUEEN: BLACK WOMEN, BEAUTY, AND THE POLITICS OF RACE 7 (2002).

52. FREDERICK DOUGLASS, Prejudice against Color, in THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 2:130 (Philip Foner ed., 1975).

53. MALCOLM X, The Ballot or the Bullet, in MALCOLM X SPEAKS: SELECTED SPEECHES AND STATEMENTS 23 (George Breitman ed., 1988).

54. Martin Luther King, “I Have a Dream” Address (Wash., D.C., Aug. 28, 1963).

55. Rodney King Speaks Out: “Can We All Get Along?”, N.Y. TIMES, May 2, 1992, at A1, A6.

56. GLENN LOURY, THE ANATOMY OF RACIAL INEQUALITY 87 (2002).

57. Optimism in Baltimore may be tempered somewhat as jurors were unable to reach an agreement on any of the charges against the first Baltimore police officer tried in connection with Freddie Gray’s death. Justin Fenton and Kevin Rector, Mistrial Declared in Trial of Officer William Porter in Death of Freddie Gray, The Baltimore Sun, Dec. 16, 2015, http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-porter-trial-jury-wednesday-20151216-story.html.