Racial Injustice & the Bill of Rights

In this time of  Black Lives Matter, and after the killing of George Floyd, Breonna Taylor and so many others, I wanted to go back and find this post I wrote in 2012 about how the Constitution and the Bill of Rights contribute to the discrimination and abuse of black men and women, so entrenched in America history, with no signs of abating.

I had been reading about the work of the late William J. Stuntz, a law professor at Harvard, who dedicated his life to studying the roots of racial discrimination in America’s criminal justice system. He was a conservative. Upon his death an obituary in the Nation said: “Widely acknowledged as the leading criminal procedure scholar of his era, Stuntz defied easy labeling. He was a conservative and an evangelical Christian whose preoccupation with race and mercy allied him with liberals, and whose insights were contrarian and often quite radical.” His solutions to the inequities of the criminal justice system had two parts: making trials local, and basing justice on principles rather than procedure. 

The Collapse of American Criminal Justice (Stunt’s book) asks what went wrong and how it can be put to rights. Stuntz covers much ground and floats many reforms, but his answer is two-pronged. The first part of it is structural: “local democracy” must be restored to the criminal justice system by reducing plea bargaining and holding more jury trials—and the jurors must live in the same communities as the victims and the accused.

The second part of Stuntz’s answer is technical: he argues that we must turn away from the law of criminal procedure—broadly speaking, the guarantees of the Bill of Rights like the right to counsel and the freedom from unlawful search and seizure—and toward the substantive law of equal protection, which the Supreme Court left for dead during Reconstruction. The former proposal is an arresting insight that seems broadly correct and broadly unobjectionable (except to prosecutors). The latter is as provocative as anything you will read from a serious legal commentator, and raises many problems. Both proposals will be probed and tested by scholars for years.”

Stuntz looked for the underlying reasons why we arrived at this impasse in America, how we are still, in 2011 when he wrote his book, seeing the unending injustice towards black people, finding it, ultimately, in the Constitution, and particularly in the Bill of Rights. I was hard struck by how right he was in what was wrong. The problem, as he sees it, is that the Bill of Rights is about process and procedure, rather than principles. Compare, he says, the French Declaration of the Rights of Man and the Citizen with our Bill of Rights—Bills 4-8 establish our judicial system, and are how we end up with more black men in prison than were slaves in 1850, and more than six million people under “correctional supervision”. It’s appalling.

Adam Gopnik writes

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice…You can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.


I’d always been uneasy with the over-valorization of the Constitution, and felt there was something off about the Bill of Rights, and certainly have always felt that the justice system rarely dispenses justice, but more often perpetuates the prejudices and privileges already existing in society rather than overcoming them–but I didn’t have the least idea why it was so bad. This is why.

Also from Stuntz: The Pathological Politics of Criminal Law

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