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05/31/2021

Evan Bernick: Policing as Unequal Protection
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Policing as Unequal Protection (86 pages) on SSRN.  Here is the abstract:

This Article proposes a constitutional framework for resistance to police violence that is informed by the history of the Fourteenth Amendment and of policing, as well as the vision of a radical social movement: the Movement for Black Lives (“M4BL”).

Central to the Article’s analysis is the concept of policing. “Police” usually calls to mind either (a) individual law-enforcement officials; or (b) the institutional body of which those officials are a part. But the term originally referred to a mode of governance — one that was hierarchical, discretionary, and largely unaccountable to the law. It will be argued that the institutional police in the United States have engaged in policing-as-governance since the Founding; that the design of the Equal Protection Clause of the Fourteenth Amendment was informed by the policing of Black Americans before and after the Civil War; and that the Clause was designed to prevent subjugation — the forcible control of some people by unaccountable others — of a kind that is inherent to policing, though not to law enforcement.

The Article then uses the frame of anti-subjugation to analyze particular proposals that have been advanced and modes of resistance to police violence that have been used by M4BL activists and allied scholars. These include “cop-watching,” community bail funds, the contestation of police budgets, the BREATHE Act, disparate-impact-based regulation of policing, and legal challenges to Fourth Amendment and Equal Protection doctrines that have enabled police violence. Finally, the Article argues that critical engagement with the strengths and weaknesses of the historical Equal Protection Clause could not only help reduce the harms of oppressive systems in the present but be generative of ideas about future constitution-building.