After Officer Darren Wilson shot and killed Michael Brown on August 9, 2014, it seemed as if it was the summer of 1967 again. The same series of events that happened in Newark and Detroit in 1967 happened in Ferguson, Missouri, in 2014. A white man shot and killed a black man. The predominantly black population protested, rioted, and looted. The predominantly white police force was overwhelmed. The governor called out the National Guard and imposed a curfew. When these things happened in the summer of 1967, President Lyndon B. Johnson, by Executive Order 11365, established what would become known as the Kerner Commission to find out what happened and why it happened. (1) To paraphrase, President Johnson, like much of white America, wanted to know: What's wrong with black people? (2) The Kerer Commission's answer was: "Our nation is moving toward two societies, one black, one white--separate and unequal." (3)
What's wrong with black people? Just like 1967, this question lies at the core of much of the response to events in Ferguson and other cities where the killing of an unarmed black man touched off violent protests. (4) Just like 1967, framing the issue as "What's wrong with black people?" states a value judgment. Today, the question still reflects a viewpoint that there could not possibly be anything wrong enough to justify the response sparked by Michael Brown's death and the killings of other unarmed black men by white police officers. Just like 1967, the question assumes that an escalation from legal peaceful protest to illegal violent protest runs counter to a shared set of cultural norms. Similar to the Kemer Commission's findings in 1967, today, white people believe there is still one society and our nation is still moving toward two separate societies. White society still reflects our nation's values. (5) Black society still does not. If that is the case, it is no wonder that white people still want to know "What's wrong with black people?" (6)
There is good reason to doubt the Kerner Commission's basic assumption that one society ever existed in America in the sense that the overriding cultural norm was that personal value and worth arose solely from the content of one's character rather than one's skin color and social status. (7) If it did, John F. Kennedy would not have needed to go on national television in 1963 to declare that we would become a color-blind society. (8) If it did, Martin Luther King would not have needed to write his letter from the Birmingham jail. (9) If there was one society, all of the blood spilled over the difference between black and white from 1789 until today would never have been shed. On the other hand, if white and black people never shared one society, rather than ask "What's wrong with black people?", ask "Why don't I understand what's wrong with black people?" Or, even better, "Why don't I understand the black experience in America?"
Seeking an understanding of the black experience in America is a new aspiration. (10) If we frame the issue as a desire to understand someone's experience, the declaration of a desire to comprehend jettisons pre-judgment and candidly declares a void of knowledge. Woven deep into the fabric of the black experience is a steady diet of negation and brutality. (11) Woven equally deep into the white experience is a steady diet of hatred and contempt for black people. This fabric is the one society we share. (12) To deny the history of the black experience is to deny the white experience as well. When a white person seeks a better understanding of the black experience, he or she seeks a better understanding of his or her own experience. The purpose of this Article is to partially illuminate one aspect of our common experience: the deep and abiding knowledge that, historically, black life does not matter as much as white life. (13) It is not as valuable in terms of the ability to earn a wage. (14) It is shorter. (15) It is harsher. (16) It is not free. (17)
I assume that almost no one reading this Article has ever asked him or herself: "I wonder what my life would be like if I were black?" (18) I base that assumption on the further assumption that almost no one who reads law journals is black because journal articles are largely written by legal academics and there are very few black legal academics. (19) Based on my compounded assumptions, I ask you to imagine that you are a black American. Imagine that when you woke up today and went about your morning ritual, you saw yourself in a mirror and the face looking back at you was my face. (20) When you saw your new face, you felt no panic or fear. (21) You knew the face and realized you were looking at yourself. As we all do, looking in the mirror, you reflected about your life, your prospects, your possibilities, your ancestors, and your children. You began a review of some of the things you know about the value of black life in America.
HATRED: THE GREAT EQUALIZER
One of the most bitter things you realize as you look in the mirror is this country's long history of hatred for the face you are looking at. Not hatred for something you or any distant ancestor had done, but hatred for the purpose of political control of the class of rich whites over poor whites. Although your people likely came here as slaves, your initial status was similar to the white indentured servant. As demographics, economics, and political power changed in the colonial era, the time came when the formerly indentured whites became a danger to the white master class. Because of that danger, as Edmund S. Morgan explained in American Slavery American Freedom, although blacks had value as slave labor, those who enslaved blacks taught themselves that black lives did not matter. (22) According to Morgan, in the mid-1600s, colonial American slave society began to recognize the need to devalue black people as living beings. (23) Devaluing black lives gave poor, un-propertied whites social status. (24) Devaluing black lives also made the work of driving slaves easier on the masters. (25) Morgan explains that inculcating white people with racial hatred for black was a key element of the devaluation of black life. (26)
According to Morgan, once African slavery dealt with the issue of labor scarcity, white freedmen formed the majority of the voting population in Virginia. (27) It was, however, a potentially dangerous political majority because those in power wished to remain in power. (28) Moreover, the large numbers of slaves represented the danger of servile insurrection. (29) Sensitive to the possibility of rebellion from whites and blacks, the ruling class acted to create a social link between propertied and property-less whites. (30) Forging this link relied on making heretofore absent racial contempt the cultural norm. (31) Contempt for servants was not new. (32) Contempt for servants, the poor and idle white freedmen, was part of English culture. (33) What was new was the transference of the contempt from social status to color. (34) In Virginia, the contempt focused on both black slaves and Native Americans. (35) Racism became a formal matter of policy: "By a series of acts, the assembly deliberately did what it could to foster the contempt of whites for blacks and Indians." (36) In 1670, the legislature made it illegal for free blacks or Native Americans to own white servants. (37) In 1680, the legislature made it a crime for any black person or any slave to raise his hand in opposition to any white person. (38) "This was a particularly effective provision in that it allowed servants [white by definition] to bully slaves without fear of retaliation, thus placing them psychologically on par with masters." (39) In 1705, when the lawmakers authorized the punishment of unruly slaves by dismemberment, it forbade the whipping of servants while naked without an order from the justice of the peace. (40) Lawmakers also acted to punish interracial sexual relationships. (41) Whites who married blacks of any shade or Native Americans were subject to banishment from the colony. (42) The penalties against interracial relationships and the fruit of such relationships when the father was other than white describe a conscious focus by those in power to prevent the blurring of the distinction between whites and non-whites and the political value of whiteness. (43)
With about 100 years of practicing racial contempt and the hardening belief that black slaves literally were not people, there should be little wonder that slavery survived the American Revolution and became embedded in the Constitution as a symbol of the limited value of black lives in contrast with white lives. (44) One well-known and documented reason for the exclusion of blacks from the benefits of full citizenship was the Founding Fathers' belief that servitude and dependence naturally disqualified anyone from participation in political life. (45) Accordingly, blacks, indentured servants, and women did not possess the capacity to properly exercise the right to vote. (46) Of this group of potential citizens, however, only blacks were robbed of their humanity by a century of racial hatred. When the time came for bargaining over the contents of the Constitution, blacks became discounted bargaining tokens for the promise of the southern states to accept membership in the United States. North and south, a white man counted as a whole person for purposes of determining representation in the House of Representatives. North and south, black slaves balanced the disproportion in white demographics. North and south, black slaves were worth three-fifths of a white man. (47)
Having considered the historical basis for the hatred of your face, as you continue to look into the mirror, it occurs to you that despite the country's hatred of you, your forefathers answered the call to arms in the Civil War. (48) Over the course of the Civil War, 200,000...