Race aside, there’s a Constitutional reason the Ferguson grand jury was wrong

The dialogue about Michael Brown’s death in Ferguson, Missouri, and the system of policing and prosecution that allowed his killer to walk free has focused on race. In the wake of the November 24th announcement that a Ferguson grand jury would not indict Darren Wilson, the police officer who shot Brown in broad daylight, people of all races responded by protesting, looting, crying, steeling for the next encounter. The favored social hashtag: #blacklivesmatter.

The dynamic is highly racialized – as it probably should be. Compelling black Americans to circumscribe their actions and behavior on the theory that an armed representative of the state can murder you without consequence is a terrifying idea. It is not freedom. It is wrong.

As a law student, though, I think it’s possible to describe and condemn the injustice of Ferguson without bringing race into the equation. On a basic level, this series of events is un-American. Deeper than the grind of racial prejudice, the failure to indict Darren Wilson for Michael Brown’s killing represents the rejection of 200 years of American legal and political tradition.

When the killing happened in August, I was hosting friends for dinner. Coastal progressives, some fellow lawyers—“justice” types. We began debating why it was Mike Brown’s killing offended our sense of fairness and soured us on American justice.

At the time, our outrage centered on the violent response on the part of police in Ferguson. Armed to the gills with American military surplus gear, punishing the indignant crowd with tear gas and rubber bullets, Ferguson police represented nothing short of an occupying authority in the neighborhoods they policed. Never mind their race (94% white in a 67% black population): The military occupation of American neighborhoods was something the first Americans would never have tolerated.

Later, I cracked open a textbook: History of the Common Law, to the page depicting the Boston Massacre, during which British soldiers killed five unarmed American civilians, including Crispus Attucks, a freed slave and early revolutionary. In the book, a 1770 engraving by Paul Revere, made just three weeks after the incident, shows some American colonists with their hands up, perishing at the barrel of guns held by imperial British redcoats.

I suspect more American middle schoolers than adults could tell you about the Boston Massacre. Until I took the course named for that textbook, I had forgotten the history myself. But to understand why Mike Brown’s death offends, the massacre was instructive. First, it reminds us that the American Revolution was about living free from occupation. Second, it reminds us that the most politically inflammatory and public disputes can be resolved in fairness at trial.

After the public execution of protesting American colonists, leaders like Revere began to build consensus: this is not how we want to be treated. It’s no wonder that the US declared independence from the British within the decade.

The subsequently drafted constitutional Bill of Rights represents a rough shopping list of priorities held by those first Americans. Chief among them and familiar to us: the rights of free speech, religion, and assembly (1st), the right to bear arms (2nd), the right to be free from searches and seizures (4th). The 5th amendment establishes the grand jury system that freed Darren Wilson.

But the third item on the first American wishlist—prohibiting the quartering of soldiers in homes—was an equally important piece of the edifice protecting Americans from their government. On the US citizenship exam, we ask eager immigrants to “name one reason the US declared independence from the British.” There are three suggested answers: taxation, religious freedom and quartering of soldiers.

We have given a great deal of contemporary oxygen to the early amendments to the Constitution. And this is fair enough—the madness of censorship, school shootings, and surveillance deserves debate in modern times. But while public discourse obsesses over the grammar of the second amendment, or the process due under the fifth, the third amendment may be the least cited, least written about part of the original Bill of Rights. There has never been a Supreme Court case assessing its merits.

Today we discuss occupation in the context of foreign hotspots or historical colonialism, or even the original forced accommodation of British soldiers—without thinking that the domestic policing presence in many communities of color in America is indistinguishable. When officers have the right to control your motions, actions, and fate, there is no other word but occupation. The hashtag of the summer, #handsupdontshoot, powerfully captures the humiliation and vulnerability of being subject to occupation. It is a fate in which the founding Americans would have been deeply disappointed.

When the Ferguson dialogue moved from the outrage of the streets to the gentility of the legal system, the history of Boston Massacre again proved instructive. The British soldiers who opened fire on American colonists in 1770 were arrested and prosecuted. And the trial in which two were convicted of manslaughter was the first instantiation of a modern legal framework: “beyond a reasonable doubt.”

It’s worth reading some of the primary documents of this trial, including the indictment of the soldiers who shot Crispus Attucks. Though as high profile and controversial as the Wilson case, and though some soldiers went free, this trial took place before America had a constitution in place—executed with transparency and faith in fundamental American values. The simple, one page indictment was produced in 8 days—a far cry from the fearful and contorted production of the grand jury process in Ferguson.

To bring it back to race: When officers have the right to control your motions, actions, and fate, there is no other word but occupation. When, on top of that, the occupiers look nothing like you and do not share a community with you, it is far worse.

The assumption and despair of Ferguson watchers has been that the law does not protect black Americans. 400 years of state sponsored terrorism, coupled with the biases of policing and churn of the contemporary prison system are the key pieces of evidence in that case.

The legal traditions of freedom exist for all Americans to claim. And the American legal tradition is on the side of Mike Brown. The most basic instincts of our pilgrim forbears were to be free from occupation, and confident enough to submit disputes to a justice system. That we have forgotten this history and practice is the most disturbing part of this ongoing tragedy.

You can follow Dayo on Twitter at @madayo. We welcome your comments at ideas@qz.com.

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