1492 is an historic date, as it heralds the beginning of European exploitation and domination of North and South America. Because of that fortuitous collision, anyone who did not descend from Northern Europeans has often been treated with antipathy, and their entitlements of human rights have been usurped (Clarke, 1992). The most salient manifestation was of course, slavery. Slavery denied all rights to enslaved Africans. Though chattel slavery has ended, discrimination continues, and many of the descendents of Africa continue to be denied basic constitutional rights, including first and fourth amendment privacy rights, carrying on the legacies of slavery and Jim Crow, now known as defacto segregation.
To get a more in depth understanding of the permutations, exhibited by displaced African people, caused by the denial of first and fourth amendment privacy rights, let us begin examining the United States Constitution.
The adoption of the Declaration of Independence on July 4, 1776 signified a new era for America. The statutory piety exuding from its preamble:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”
did not cover Native Americans or enslaved Africans. The same benign neglect was bestowed on others who migrated to the shores of America seeking a better life. And so the story continues.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
The United States Constitution, in 1787, while not explicitly endorsing racial discrimination, contained clauses that helped to maintain slavery while its tenets extolled liberties and safe guards for all.
Slave clauses in the Constitution of the United States were numerous. In
Article I. Section 2. Clause 3:
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the, whole number of free Persons, including those bound to service (providing service by contract) for a term of years, and excluding Indians not taxed, three fifths of all other Persons (African slaves).”
Clearly, enumeration and political representation was a privilege afforded only owners.
Article I. Section 8. Clause 15:
"To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions"
What is an insurrection? I like to think of it as an unsuccessful revolution. In the 1800’s who had better cause to revolt than the enslaved Africans? There were several “insurrections.” On august 30, 1800, Gabriel Posser (and about a thousand enslaved Africans) efforts to be free were defeated by a storm and two obsequious slaves who betrayed their cause. In January of 1811, Louisiana slaves rebelled, thirty-five miles outside of New Orleans. U.S. troops stopped their efforts. On July 27, 1816, U.S. troops attacked Fort Blout on Apalachicola Bay, Florida after it was seized by enslaved Africans and Indians (they kept the U.S. soldiers at bay for several days). May 30, 1822, defeated Denmark Vesey’s revolt (said to be one of the most elaborate plots on record) was defeated in Charleston, South Carolina. The last of the famous revolts by enslaved Africans was lead by Nat Turner in august of 1831. This article allowed the United States to hang each of these men for their efforts to realize the rights afforded others under the Bill of Rights, ratified on December 15, 1791, (Brock, 2000).
Article I. Section 9. Clause 1:
"The Migration or Importation of such Persons as any of the States now existing shall think prefer to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed an such Importation, not exceeding ten dollars for each Person."
In this clause, the Constitution provides for an increase of slavery by prohibiting the suppression of the slave trade for twenty years after its adoption. After 1808 it was left to the discretion of Congress to prohibit, or not to prohibit, the African Slave Trade (Brock, 2000).
One must ask, did such provisions assist in continuing the use of Africans as captives and slaves, after slave owners have possession and ownership? Could this document have made it possible for enslaved Africans to be free here in America and allowed, through self-determination and freedom, to live? It might be said, that because of the Constitution, the United States became responsible for 169 years of British slavery and labor value (Bennett, 1978,).
The extension of this slave traffic in Africans to 1808, was voted by all of the New England States, including Massachusetts, and opposed by Virginia and Delaware. The other slave clauses were inserted in the Constitution by votes of the New England States along with the South.
Article IV. Section 2. Clause 3 of the Constitution states:
"No person held to service or labor in one state, under the Laws thereof, escaping into another, shall, in Consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on Claim of the party to whom such service or Labor may be due."
A person held to service or labor was either a slave or indentured servant (a person bound by contract to serve for a specific period of time). Today, the thirteenth Amendment renders this clause useless, but keep in mind, the 13th Amendment did not get ratified until December of 1865, seventy-eight years later.
Article IV. Section 4:
"The United States shall ...protect... and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence."
On October 17, 1859, an army of U.S. soldiers, under the command of Colonel Robert E. Lee, captured John Brown and his eighteen followers at Harpers Ferry. Could it be said the U.S. army was protecting the institution of slavery against “domestic violence?”
"...provided that no Amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the Ninth Section of the first Article..."
It would appear that these articles are a deliberate act to cause and protect the “peculiar institution” (as slavery was called). This article could be interpreted as an admission of intent to continue African slavery. Who prohibited Congress from amending the Constitution? Who reserved and limited the government and congress in amendment X?
Article I. Section 9. Clause 4:
"No capitation (or other direct) tax, shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."
This article’s purpose was to collect tax from everyone equally. Enslaved Africans were never going to be able to participate equally; therefore, were they ever to be “equal” under this provision?
Bills are introduced and lobbied for, amendments are made, articles are debated and attached to established legal documents, and new laws are enacted in Washington. But…one must ask the question: though these documents seemed functional in theory, did their practical application affect any change in the lives enslaved Africans? Were these legislative maneuvers mere machinations, or were they sincere endeavors that were rendered useless by those with enforcement authority?
All of the above articles helped to strip enslaved Africans of their first and fourth Amendment rights, assuring that none would bask in the safety of protected privacy. Being enslaved meant having no control of one’s self, children, and possessions. The auction block presented the greatest indignities, because enslaved Africans often had their clothing removed. Their teeth, breasts, buttocks, hands, ears, and genitals were inspected and touched before crowds of exploitative, and potentially abusive owners, like in the procurement of livestock. Let’s take a closer look at some of the changes that have taken place over the years.
In the case of Edward Prigg vs. The Commonwealth of Pennsylvania, 1842, the Supreme Court would not authorize state officials to return run away slaves to their owners (Internet-Unknown 2000). In the Compromise of 1850, California was permitted to enter as a free state; other territories entered with no decision on slavery, some with very strict guidelines for compensating slave owners. In the case of Washington, D.C., slave trade was banned (Brook, 2000).
The Fugitive Slave Law of 1850 made it possible for non-enslaved Blacks to be seized and re-entered into slavery. The Kansas- Nebraska Act of 1854 revoked the nebulosity existing in the Missouri Compromise. These states would make some decisions about the question of slavery (Bennett, 1978).
In 1857 The Dred Scott Case saw the Supreme Court render the verdict that Negroes were not United States citizens. Dred Scott first went to trial to sue for his freedom in 1847. Ten years later, after a decade of appeals and court reversals, his case was finally brought before the United States Supreme Court in what is perhaps the most infamous case in history (Clift & Low, 1981).
The case actually began in 1833, when a Dr. John Emerson, a physician in St. Louis, Missouri, began a tour of duty at Fort Armstrong, Illinois., and later for Fort Smelling, Minn. (then in the Wisconsin Territory), in company with Scott, his enslaved African. By 1846, Emerson had died, leaving Scott to his wife, Irene; Scott, too, had acquired a wife, Harriet, and a daughter, Eliza. Early litigations for Scott’s freedom began in this year by Scott’s friends, mainly Henry Taylor Blow.
Scott sued for his freedom on the grounds that his residence in a territory from which slavery was excluded by the terms of the Missouri Compromise (the area north of 36 30’ within the Louisiana Purchase and excluding Missouri itself) made him free even after his return to a slave state. The local Missouri court freed Scott, but a Missouri Supreme Court reversed the decision on the grounds that whatever his status while in the free territory Scott was a slave when he returned to Missouri. The ultimate goal was to have this case heard in the U.S. Supreme Court, where the entire question of slavery in the territories might be decided.
The court decided that all people of African ancestry -- slaves as well as those who were free -- could never become citizens of the United States and therefore could not sue in federal court. It was there that Chief Justice Roger B.Taney, who gave the majority decision stated that since Negroes had not been citizens at the time the Constitution was adopted and had not become citizens of the nation since (Denis, 1995):
"Negroes have no rights which the white man is bound to respect.”
The court also ruled that the federal government did not have the power to prohibit slavery in its territories. Scott remained a slave.
In 1861 the Civil War began and ended in 1865. The war was between the Southern states, which wanted to preserve slavery and an agricultural way of life, while the North states wanted to break the economy of the South, usher in a more modern way of life; and also abolish slavery. Though African people fought on both sides (for the Union and the Confederacy), both treated them poorly, but , eventually better by the North.
The Emancipation Proclamation was signed on January 1, 1863 signaling the end of chattel slavery in the rebel states with exception of thirteen parishes (including New Orleans) in Louisiana, forty-eight counties in West Virginia, and seven counties (including Norfolk) in eastern Virginia. The Emancipation Proclamation did not apply to enslaved Africans in Border States (Bennett 1973). It was not until January of 1865, that the thirteenth amendment of the Constitution was ratified and chattel slavery officially ended in the United States. Unfortunately, this was not enough to give newly freed enslaved African the same protection under the law.
After the assassination of Abraham Lincoln in April of 1865, the Mississippi Legislature established Black Codes. These codes were enacted in other states to re-enslave Africans. Any white person could arrest a Black, and force them to work with out pay. Blacks could be made to work from sunrise to sun set, Blacks had to be quiet and orderly, and go to bed at “reasonable” hours. It was a crime in Mississippi for a Black man to own farm land, and in South Carolina, Black people had to get a special license to work outside the domestic and farm laborer categories. As Chief Justice Roger B.Taney stated in the Dred Scott decision: “Negroes have no rights which the white man is bound to respect (Bennett, 1978).” Sadly, today this sentiment still seems true.
Finally in April of 1866, the Civil Rights Bill was passed over president Andrew Johnson’s veto, and the Fourteenth amendment was passed in 1868. The fifteenth Amendment was ratified on February 3, 1870 giving Black people the right to vote. The passage of all of those Amendments still did not provide protection and equity under the existing laws. Jim Crow Laws were ushered in to subjugate Blacks in the mid 1890’s taking away fundamental protections guaranteed under the law.
Today we have racial profiling, redlining, illegal search and seizures, and shooting deaths that have segued into the year 2000. All of the aforementioned are concomitants of a society that has been led to believe, “Negroes have no rights which the white man is bound to respect.” With this racist ideology woven into the tapestry of America, it now has to pay dearly for its societal myopia.
Black farmers have had to sue the United States Department of agriculture, for not helping all farmers equally or equitably. In 1997 the situation was so bad that the USDA was holding 67% of Black farmers deeds in trust. Black-owned farmland shrunk from 1,000,000acres in 1940 to 16,000 in 1997. Black farmers received less than two percent of the loans from the USDA. Out of $1.9 billion in loans the USDA granted in 1997, Black farmers received 1.3 percent (The Final Call, 1997).
In 1999, the U.S. Department of Agriculture agreed to settle the 1997 class action suit, which accused the agency of rejecting loans to Black farmers. The landmark agreement requires $375 million to be divided among the 3, 500 Black farmers who brought suit. Unfortunately, it can never repay for the decimation of Black owned farms, which dropped from one million Black farms in 1920, to fewer than 20, 000 in 1999, loss of land (through government theft), and the break-up countless Black families . The government has confiscated land, it illegally set up the circumstances to siege.
Bruce Wright once stated that, “judges are the administrators of the Constitution.” Assuming that to be true, then we must also assume that police and the military are the enforcers of the tenets established in that document. This is why police and the military agencies can harass, beat, and even kill with impunity. They are the vanguards of the Constitution; therefore, whatever they do is perceived to be correct and justified. One only has to look at the numerous cases involving police shooting civilians. Each time there is a kill, the police officers are always found innocent. After a kill, often police are rewarded, as in the case of the East Haven, Connecticut officer who shot and killed Malik Jones. Members of that police department even created tee shirts with pictures of white police slamming a Black suspect on the hood of the car. The caption on the shirt read, “Boys on the Hood” (Advocate, 1997).
On February 4, 1999, Amadou Diallo, age 22, an immigrant from New Guinea, was shot at forty-one times by white police. Nineteen of the bullets riddled his body, as he attempted to get his wallet for identification. He had done nothing wrong. In the case of Archie “Artie” Elliott III, in Prince County, Maryland, he was last seen alive on the evening of June 18, 1993. The police, on what has now come to be known as “racial profiling”, stopped him. Though he complied, he was shot 22 times; 14 of the bullets tore through his body. Patrick Bailey, age 22, and a Wall Street clerk/aspiring stockbroker, was shot to death by white police officers. He was inside the apartment building his parents owned on October 31, 1997 (Essence, 1999). Let us not forget the October 4, 1995 revenge killing, of 20-year-old Antwan Sedgwick in Hampton, Virginia. He was found dead just hours after the first OJ Simpson verdict of not guilty. He got into an argument with two white police officers about the OJ Simpson trial, and a couple of hours later, he is found hanging from monkey bars (The Final Call, 1997).
The country was flabbergasted, with the illumination of the brutal and savage assault on Abner Louima, a Haitian immigrant on August 9, 1997. He was sodomizied by four police of the 70th Precinct in New York City with a toilet plunger. This was not the first time New York newspapers, and mayor Rudolph Giuliani were told this kind of conduct was going on. Back in April of 1994, Earl Caldwell a reporter for the Daily News reported the story of six Haitian cab drivers (all men) who came forward after being raped and sodomized by a police officer. The officer used his service revolver, uniform, and the police van to carry out these despicable acts. The city did nothing, and to keep Earl Caldwell quiet, he was fired, and essentially barred from large mainstream press.
The phenomenon of “Racial Profiling,” targeting individuals solely because of their race, is so flagrant in this country, that law enforcement has not paid attention to the patterns it has established. In 1997, the American Civil Liberties Union found that 73% of the drivers stopped on Interstate 95, between Baltimore, Maryland and Delaware were Black. The shocking part… Black people only comprised 17% of the population that traveled that route. A Black person traveling on Florida’s highways are 6.5 times more likely to be searched than whites (Daily News, 1997).
All of these cases speak to the non-adherence of fundamental privacy rights for Blacks that are pontificated under the Constitution’s 1st and 4th Amendments. If a Black person can be stopped indiscriminately, searched without provocation, and killed unjustifiably, then those who unctuously state that democracy reigns in America need to rethink their position.
Law enforcement today, is really pressing beyond the boundaries established by the addition of the fourth amendment. People of color aren’t safe in their cars, homes, or persons. Racial profiling by police, airport security, and department store employees have found fertile ground here in America. The right to vote can be usurped by police, and reinforced by a judicial system, that clearly treats poor people, and people of color unjustly. As Bruce Wright articulated so eloquently in one of his speeches, “when the country goes too far to the right, what’s left?” (Wright, 1987)
The fundamental miscarriage of democracy, as it has come to be known here in America, is its inability to be inclusive of persons of color, and especially African American males. African American males appear to have the least protection against racial profiling, harsher court sentencing, violation of privacy rights, and protection against unreasonable search and seizures. These incessant assaults on persons of color, primarily Blacks and Hispanics have begun to impact other areas, such as our schools.
"In our system, state-operated schools may not be enclaves of totalitarianism School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution." U.S. Supreme Court Justice Abe Fortas, Tinker v. Des Moines School District (1969)
This view is clearly getting lost in today’s “zero tolerance” society.
Urban centers have become increasing populated with people of color. Therefore, public schools become more segregated. Take a city like New Haven. It’s schools are approximately 57.4% African American, 27.8% Hispanic/Latino, while whites make up 12.5%. Our suburban schools are just the opposite. Hamden, CT on the other hand is 24.1%Black, Hispanic/Latino is 4.8%, and whites comprise 67.0%. Westport, CT student population is 0.9% Black, 1.6% Hispanic/Latino, and 94.5% white (State of CT 1998-1999). As a result, the facilities that house the schools tend to be worse, standards drop, and all partakers are viewed as thugs. People fleeing to the suburbs feel they have an edge over their urban counterparts. But upon closer scrutiny, it’s all a façade. Now, couple that false sense of security, with a feeling of “we’re better here,” and you spawn a Littleton, Colorado or, Deming, New Mexico; Jonesboro, Arkansas, and a Richmond, Virginia. All of these schools have one thing in common…they are in more affluent and whiter communities. As such, privileges are extended there that are not given to students in the urban centers.
Let’s look briefly at the majority of the shootings to date:
May 26, 2000 Lake Worth, Fla. A seventh-grade teacher was shot to death Friday during the last period on the final day of classes, and a student was arrested as he attempted to flee.
Feb. 29, 2000 Mount Morris Township, Mich. 6-year-old girl fatally shot in her first grade classroom, allegedly by a 6-year-old boy.
Dec. 6, 1999 Fort Gibson, Okla. Four students were shot at a middle school in a farm town 50 miles southeast of Tulsa. A 13-year-old student at the school is suspected.
Nov. 20, 1999 Deming, N.M. Dressed in camouflage, 13-year-old Victor Cordova Jr. fatally shot a 13-year-old female classmate in the head at their school.
May 20, 1999 Conyers, Ga. T.J. Solomon wounded six peers in an pistol and shotgun attack at Heritage High School. The district attorney filed 21 charges against Solomon including aggravated assault, cruelty to children and possessing firearms. Solomon's lawyer claims the attack was due to a mental collapse, possibly triggered in part by the drug Ritalin.
May 21, 1998 Springfield, Ore. Kip Kinkel, a 15-year-old freshman, opens fire in a cafeteria, killing two and wounding 22. Kinkel's parents were later found dead at their home.
May 19, 1998 Fayetteville, Tenn. Three days before his graduation, Jacob Davis, an 18-year-old honor student allegedly opens fire in parking lot at high school in Fayetteville, Tenn., killing Robert Creson, a classmate who was dating his ex-girlfriend. Davis is awaiting trial.
April 24, 1998 Edinboro, Pa. Teacher John Gillette is shot dead at a school dance, allegedly by Andrew Wurst, age14. Two students and another teacher are wounded.
April 20, 1999 Littleton, Colo. Two members of a school gang, dressed in black trench coats and heavily armed, slay 13 in Columbine High School before turning their guns on themselves. Another 23 were injured.
March 24, 1998 Jonesboro, Ark. Mitchell Johnson, 13, and Andrew Golden, 11, allegedly fake a fire alarm and open fire on students and teachers at Westside Middle School. Four female students and a teacher are killed. Both boys are charged as juveniles with five counts of capital murder and 10 counts of battery.
Dec. 15, 1997 Stamps, Ark. Joseph "Colt" Todd, 14, is arrested in the sniper shooting of two students outside their high school. The students recovered; Todd, who faces trial later this year, said he was tired of being picked on.
Dec. 1, 1997 Paducah, KY. Michael Carneal, 14, entered his high school and headed for a prayer meeting where he shot eight students, killing three.
Oct. 1, 1997 Pearl, Miss. Luke Woodham, 16, opened fire on his classmates, killing two and wounding seven more in the school cafeteria.
Feb. 19, 1997 Bethel, Alaska. After making multiple threats, Evan Ramsey, 16, fatally gunned down his high school principal and one of his classmates.
July 26, 1996 Los Angeles, Calif. High school junior Yohao Albert Rivas, 18, shot and wounded two classmates in a stairwell on campus.
Feb. 2, 1996 Moses Lake, Wash. Barry Loukaitas, 14, killed his teacher, fatally wounded two teen-age boys and wounded a girl.
Feb. 2, 1996 Moses Lake, Wash. Barry Loukaitas, 14, killed his teacher, fatally wounded two teen-age boys and wounded a girl.
Oct. 30, 1995 Richmond, Va. Edward Earl Spellman, 18, shot and wounded four students outside their high school.
May 1, 1992 Olivehust, Calif. Eric Houston, 20, killed four people and wounded 10 in an armed siege at his former high school. Prosecutors said the attack was in retribution for a failing grade. Houston was convicted and was given a death sentence (ABC News).
Ironically, even with the data above, inner city schools are still viewed as bastions of violence. A concomitant of the rash of shootings is, America’s students are under heavy siege and there are no such things as privacy rights for young people. Once you have denied the rights of one group, it can easily be replicated with another group. Since Black and Hispanic children are seen through stereotypical lens more often than not, and are treated poorly, it’s very easy to see how society can cross the lines.
Resounding applause can be heard, when people say and think, relinquishing privacy rights under the first, fourth, and fifth amendments need to be trampled upon if that means that my child is safe. Students are being subjected to having their diaries and essays land them in police precincts if an adult has deemed them too graphic. Student lockers are routinely searched. Our youth are further subjected to random drug testing, curfews, being banned and/or harassed from public properties. For instance, in New Haven, Connecticut, police ran New Haven Public School students off the sidewalks surrounding the Chapel Street Mall everyday from September through November 1999, by persons mounted on Clydesdale horses. Keep in mind that these horse belong to a family categorized as Draft horses. They can weigh between 1,500-2,000lbs and are the horse of choice for riot control. What is the city saying about its young.
Recently, in New Jersey four kindergarten students were suspended from school for playing “Cops and Robbers.” Their crime…utilizing and pointing their finger and thumb as guns. Are we carrying our tolerance for safety too far? Do we want our young to get comfortable with not realizing constitutionally sanctioned rights?
America will always have problems with race, for it was woven into the foundation on which the constitution stands. As a result of America’s issues with race, and anything deemed unorthodox, she has always usurped that groups privacy rights and continues to do so today. As America embarks upon this new millennium, hard decisions are going to have to be made. If America continues suffering with chronic bouts of cognizant dissidence and selective amnesia the constitutional abuses will