As the debate about police mis/conduct rages at least in conscientious circles, I have given the question much consideration and researched why we continue to see these instances of police violence without any end to them.
In my search for answers, I have been led away from the easy suggestions of more and better police training by those who exploit these issues for ratings and clicks on the one hand and those on the other side in the Black community who speak in infantile terms about this issue by raising housing, education, employment, and other social issues, as if being properly housed, educated, and employed, have stopped police from murdering innocent unarmed black men and women.
The myriad instances of unlawful violence against people of color by police for minor infractions speak to a sense of impunity, as it does to the system that makes it almost impossible for officers to be held accountable for their crimes.
Even in the most extreme cases in which the system cannot twist itself any further to justify the atrocities they commit.
It is a complex web of deceit, lack of accountability, and racist attitudes created to keep African-Americans subjected to a different form of slavery that does not result in forced labor on cotton plantations, one that is far less visible in its savagery but is no less destructive in its full execution.
In that complex web, legislators legislate against segments of the population, others who sign them into law, courts that validate them, and the police who enforce them.
In addition to the culture of racism on which the system was built, propaganda warfare is waged by the media and Hollywood in their glorification of cop-culture, in films, and on television. Anything is permissible as long as the good guys get the bad guys.
The presumption of innocence never makes it into the conversation when the bad guy’s imagery, whether on television or in films, continues to be the Black guy. The resultant outcome is a population socialized into accepting brutality and death on people of a darker hue as a necessary part of ensuring their own safety.
There is no separation between either of those groups. The same voters support them all; their ability to collude, particularly in small towns and in backwoods municipalities, makes a mockery of the word justice; it opens up to the world the hypocrisy of America’s position on human rights.
It is a system so despicably toxic and complicit that cops who murder innocent blacks are almost assured of getting their jobs back on the rare occasion they are fired. If not by the same department, a department that wants to show it agrees with the murderous tactics that cop displayed.
“Come over here; we will hire you, Sheriffs and local police departments advertise we will stand with you.” In some cases, the murderer cop gets promoted by the same department that hired him/her in the first place; the same department gets to decide his innocence, usually with the local prosecutor’s complicity and their pro-police grand juries.
At the top of this system that destroys black lives as a matter of policy sits the United States Supreme Court. The Court is the final arbiter of all legal issues. So it bears examining how judicious the court has been in its deliberations and interpretations of the laws under the constitution.
As we begin that process of examination, it bears mentioning that the doctrine of (qualified immunity) that was just last week voted down by the Maryland Legislature last Saturday was created by the Supreme Court, like a shield that allowed police nationwide to get away with murder and other violent crimes committed against the public and has given them the impunity that we see playing out in their racist and reckless assault on the citizenry.
In April of 2015, Sean Rosenthal writing for the Foundation For Education, wrote the following. What makes a Supreme Court decision bad? And what are the worst precedents handed down by our highest court?
I’ve been thinking about this a lot recently, and here are my nominees for the worst SCOTUS opinions to date.
The standard I’m using for “worst” is three-fold:
- First, the holding of the case is unambiguously still guiding precedent.
- Second, the holding of the case is inconsistent with the Constitution.
- Third, the case either A) have egregious consequences for individual liberty or B) is clearly ideological- or policy-driven rubbish as a matter of constitutional law (whether or not I happen to like the consequences).
Under the first prong, I will exclude from consideration a number of infamously horrific decisions: Dred Scott (ruling black people aren’t citizens), Plessy v. Ferguson (allowing separate-but-equal), Buck v. Bell(permitting compulsory sterilization), and Korematsu v. United States(upholding Japanese internment camps).
Dred Scott and Plessy have been clearly overruled. Buck and Korematsumay were not technically overruled, but I think the reason is that a similar case hasn’t provided the opportunity. I may be wrong about that for Buck and Korematsu — I hope not — but I am making the assumption that they’re not good law anymore.
Using the second and third prongs, I think the case that wins the “honor” for the worst active Supreme Court decision in American history is Helvering v. Davis (1937). Helvering upheld the constitutionality of Social Security on the basis that Congress has a general power to spend on whatever it deems to be in the general welfare.
This ruling completely upended the system of enumerated powers. Congress only had the powers delegated to it by the Constitution and eviscerated the Tenth Amendment that restricted the federal government to its defined roles.
Since Helvering, Congress can spend money on anything it wants, facilitating the welfare state and the federal government’s immense growth in the last 80 years. If I had to make a rough estimate, I’d say about 75% or more of the spending currently done by the federal government relies on this holding in Helvering, making the overwhelming majority of what the federal government does unconstitutional.
Thus, Helvering is the central case that flipped the system from limiting the government to what is explicitly allowed to permitting anything that isn’t explicitly banned — effectively ending federalism.
Here are various runners-up, in approximately chronological order:
- Slaughter-House Cases /United States v. Cruikshank (1873 /1875)
Rulings: Eviscerated the Privileges or Immunities Clause of the 14th Amendment, preventing the Amendment from broadly protecting individual rights to this day.
- Chae Chan Ping v. United States (1889)
Ruling: Upheld the Chinese Exclusion Act on the basis that Congress has an inherent power to restrict migration into the United States, despite Congress not actually being enumerated this power.
- Hans v. Louisiana (1890)
Ruling: Declared that the symbolic meaning of the 11th Amendmentprevents citizens from suing their states, even though the text makes no such reference, and thus inadvertently damaged the 4th Amendment by foreclosing the most effective means of enforcing it.
- Home Building & Loan Association v. Blaisdell (1934)
Ruling: Allowed states to alter banking contracts after the fact and thus effectively eliminated most of the Contracts Clause that prevents states from impairing private contractual obligations.
- United States v. Carolene Products/Williamson v. Lee Optical (1938 /1955)
Rulings: Removed virtually all protection for unenumerated rights, particularly economic liberties, and granted the government nearly unlimited power to blatantly and unambiguously promote special interests at the expense of the public.
- Wickard v. Filburn/Gonzales v. Raich (1942 /2005)
Rulings: Allowed Congress’s power to regulate interstate commerce to be used to regulate purely local and essentially non-commercial activities, and thus empowered Congress to regulate essentially anything it wants.
- Baker v. Carr (1962)
Ruling: Declared that a “One Person, One Vote” standard is essential to democracy, despite the fact that the Constitution doesn’t follow OPOV in elections for the Senate or the presidency; facilitated gerrymandering by requiring every state to redo its districts every census to comply with OPOV.
- Jones v. Alfred H. Mayer Co./Runyon v. McCrary (1968 /1976)
Rulings: Declared that Congress’s power to ban slavery includes a broad power to ban virtually anything that could conceivably be deemed discriminatory, including private individuals refusing to sell private houses or admit students to private schools based on race, and thus transformed the power to stop slavery into a broad power to restrict private and voluntary choices.
- Buckley v. Valeo (1976)
Ruling: Granted broad deference to Congress on campaign finance restrictions that limit political speech, despite the 1st Amendment’s core protection being for political speech.
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
Ruling: Granted administrative agencies’ broad deference in creating regulations based on administrative interpretations of laws and thus granted administrative agencies of the executive branch broad lawmaking powers.
- McCleskey v. Kemp (1987)
Ruling: Declared that Georgia’s application of the death penalty did not violate its victims’ Equal Protection rights, despite admitting that racism played a substantial role in determining who received the death penalty and, by implication, insulated the entire criminal justice system from any obligation not to be discriminatory in effect or operation.
- Morrison v. Olson (1988)
Ruling: Allowed Congress to create an independent counsel with the power to investigate and prosecute people independent of the president, even though the president is vested with executive power, and prosecutions are purely executive powers.
- Kelo v. City of New London (2005)
Ruling: Declared that using the power of eminent domain to take property from poorer people and give the property to large corporations (who pay more taxes) to be a “public use” under the Takings Clause of the 5th Amendment.
- NFIB v. Sebelius (2012)
Ruling: Allowed Congress to force people to buy health insurance from private companies on the basis of the regulation being a “tax,” by implication allowing Congress to do virtually anything with the taxing power that no independent power, even the expansive Commerce Clause, would allow.
Mister Rosenthal invited readers of his work to feel free to disagree with any of his choices and encourages others to add their own nominees for badly decided cases in the comments.
♦ I would add the horrifically decided 2013 5 – 4 decision of the court in Shelby County vs. Holder on the issue of voting rights.
On June 25, 2013, the Court ruled by 5 to 4 that Section 4(b) was unconstitutional because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.
Immediately after the court removed section 4(b), Republican-run states embarked on a massive campaign to prevent African-Americans from voting, rivaling the jim crow era.
The January 21st, 2010 Citizens United decision. The Court overruled Austin v. Michigan Chamber of Commerce (1990), which had allowed different restrictions on speech-related spending based on corporate identity, and a portion of McConnell v. FEC (2003) had restricted corporate spending on electioneering communications was argued in 2009 and decided in 2010. The Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.
Since that ruling, the floodgates have been opened, allowing for the creation of super PACs and a torrent of other dark money into the electoral process.
This phenomenon essentially endorses the concept of money talks bullshit walks. The average American voice has essentially been drowned out; the process now caters to the corporate agenda.
Mike Beckles is a former Police Detective, businessman, freelance writer, black achiever honoree, and creator of the blog mikebeckles.com.