Abstract

Excerpted From: Erin M. Carr, The “History and Tradition” of the Sanctification of Structural Violence: A Review of the Cyclical Corrosion of Constitutional Protections, 27 Journal of Gender, Race and Justice 1 (Winter, 2024) (521 Footnotes) (Full Document)

On June 19, 1968, mere months after the assassination of her husband, Coretta Scott King addressed a crowd of over 50,000 anti-poverty and civil rights activists at the National Mall in Washington D.C. Ms. King's Solidarity Day Address was in support of the Poor People's Campaign, Dr. Martin Luther King Jr.'s final and perhaps most ambitious dream to further equality through economic self-sufficiency. Ms. King, in echoing the sentiments of the “I Have a Dream” speech that her late husband had delivered five years earlier at the Lincoln Memorial, spoke poignantly of what would be required to realize full equality for all Americans. In reflecting upon the “broad dimensions of violence” regularly employed against people of color and the poor, Ms. King noted: “[S]tarving a child is violence. Suppressing a culture is violence. Neglecting school children is violence. Punishing a mother and her child is violence. Discrimination against the working man is violence. Ghetto housing is violence. Ignoring medical needs is violence. Contempt for poverty is violence.”

The state-based policy violence described by Coretta Scott King is an established facet of the American democratic experiment. It has a historical basis in American society, having been facilitated by democratic institutions for the purpose of systematically limiting the civic, social, and economic participation of peripheral groups. Structural violence was present during the Constitutional Convention. It thrived during slavery and was again rejuvenated in the aftermath of the Reconstruction era and during the JimCrow period. It became a powerful force to counter the Civil Rights, feminist, and gay liberation movements and, predictably, has found its resurgence in the period immediately following the election of the first Black president, the legal recognition of gay marriage, the browning of higher education, and the emergence of women as powerful economic forces in American society. Policy violence, in its simplest terms, is an institutional response to legal gains by those who have never been allowed to be full participants in the American economic or political system. Systemic violence is simultaneously a feature of, and a threat to, democratic advancement.

Although intensified to heightened levels, state-based policy violence is by no means a historical irregularity. Violence perpetrated and legitimated through formal democratic structures against dispossessed groups is the basis on which our country was founded and has been a persistent feature of the American democratic system ever since. Notably, structural violence is most pronounced when minoritized groups achieve political, economic, or legal gains. Any modicum of progress is perceived as a threat to existing power structures, thereby necessitating a recalibration of the socio-political equilibrium that can best be accomplished through state-administered structural violence.

Most modern iterations of structural violence, as represented by reconstituted racist, misogynistic, and homophobic policies, have been largely achieved by undermining newly recognized rights through both legal and political processes. Though less overt than other forms of violence, such as sexual or physical violence, policy violence is no less pernicious or destructive to the communities it targets or to the overall health of democratic institutions. State-based harm is the product of a system that communicates a consistent, forceful message of inferiority, indignity, and inhumanity toward those whom our laws and policies have systemically “othered” on account of their race, gender, and sexual orientation and identity. laws and policies have been constructed on, and have indeed fortified, these models of inferiority. Consequently, American sociopolitical structures have enabled the weaponization of democratic institutions to reify systems of violence and exclusion directed against peripheral communities.

A basic premise of this Article is that law and policy reflect broader sociopolitical values. The United States is a democratic project that has gone to great lengths to reconcile the inherently irreconcilable tension between equality and socio-legal stratification. law and legal institutions have fostered an entrenched, multi-layered system of economic, racial, and gender inequality that has nurtured and legitimized political extremism and state-sanctioned violence. This has resulted in the development of a governance apparatus that functions to divest humans of agency and reinforce the inhumanity of peripheral groups. This particularly pernicious form of structural violence reproduces and magnifies the vulnerability of marginalized communities. It has produced legislative bodies that are able to justify the codification of discrimination and a legal system that is reticent to recognize the constitutional personhood of women, people of color, and individuals with non-normative sexual identities and orientations.

In examining the role of the Supreme Court and the political process in pioneering and perpetrating systemic violence, this Article analyzes the longstanding historical usages and modern expressions of policy violence, specifically as applied to the erosion of unenumerated fundamental rights for people of color, women, and members of the LGBTQ+ community. A central goal of this research is to examine the omnipresence of state-sanctioned violence from the country's founding to the present day in order to engage in a critical interrogation of questions integral to citizenship, personhood, autonomy, and democratic governance.

Accordingly, this Article aims to redefine the problem of legal inequality and the corrosion of constitutional protections with a renewed focus on the role and effects of structural violence. This work expounds upon earlier scholarship addressing state-based policy violence directed at marginalized and oppressed groups by examining how historical forms of policy violence may inform our current understanding of the systematic erosion of substantive due process rights. Recent Supreme Court decisions, in tandem with a proliferation of state and local initiatives to curtail fundamental rights, require renewed attention and urgency in addressing long-standing and persistent institutional harm.

Part one of this Article offers a historical overview of the protracted legacy of structural violence within the American socio-political system and its cyclical appearance in response to even the most constrained civil rights gains. The second part discusses the origins, impetus, and instigators of policy violence, providing a more focused description of the sources and actors of state-based harm. Part three aims to connect the historical and descriptive information contained in the introductory parts to explain the contemporary expressions of policy violence as it uniquely affects communities of color, women, and the LGBTQ+ population.

The final substantive part of the Article offers an analysis of how an incomplete articulation of the nation's “history and tradition” has resulted in modern forms of structural harm effectuated by the Court. The Court's modern substantive due process analysis has served as a basis to restrict, and in some cases revoke, legal rights for women, communities of color, and LGBTQ+ people. The misuse of history and tradition by the Court in determining constitutional rights is itself a form of systemic violence that degrades the integrity of democratic institutions, including the Court. The Article concludes by considering the governance implications for a socio-political system based on entrenched structural violence and suggests that redress will not be realized solely through judicial victories or the enactment of new legislation but through the countervailing forces of community-based and individual resistance.

[. . .]

This Article advances the fundamental thesis that state actors--primarily represented by members of the Court and state officials--are more than simply untrustworthy partners in the ever-present need to obtain legal equality for peripheral groups. Historically and continuing to the present day, state actors have operated under a veneer of democratic legitimacy to limit the definition of citizenship and humanity to a privileged few. Structural violence is a prominent part of our national identity that is concomitantly unacknowledged and exploited by modern state actors of structural violence.

Reliance on the Court and state legislators for the recognition and enforcement of basic rights has rarely been an effective strategy. Legal historians and activists have long questioned the wisdom of a rights-centered approach, characterizing limited judicial victories as evidence of a broader preoccupation with legalism and the fragile nature of constitutional protections. Whereas some constitutional and social movement scholars have maintained that the utility of a right-centered strategy is context-dependent, others have cautioned that the advancement of civil rights through judicial action can be fleeting and even counterproductive. Critical theorists have been especially vocal in noting the deficiencies of formal legal equality and antidiscrimination law, which have proven inadequate in recognizing and redressing the institutional harms that affect marginalized groups. At its worst, legal equality strategies may not only fail to address institutional harm but may function to legitimize and expand oppressive and violent institutions.

The contributions of critical scholars to the discourse surrounding the limitations of rights-based advocacy are instructive in understanding both the reoccurring nature and devasting consequences of systemic violence towards politically vulnerable communities. The deficiencies of legal equality strategies and the efficacy of policy violence are equally influenced by the critically important fact that both rely on a rights-based system in which access to rights is limited to an exceedingly limited class of individuals. Arguments that seek to advance legal equality--and the structural violence that those arguments commonly elicit--are constrained by legal and political systems that are founded upon and sustained by gendered racialization. Constitutional protections that are proclaimed to be universal and accessible to all are dependent on socially dictated norms that reward whiteness, heteropatriarchy, and wealth. The artificially constructed, zero-sum framing of civil rights functions to expand harmful systems by reinforcing structures of domination, reproducing a false hierarchy of deservingness of rights, and fracturing constituencies with shared rights aims. It is this very system that dooms the efficacy of rights-based advocacy that concurrently enables the virulency of structural violence.

More American than apple pie, policy violence and social suffering are deeply entrenched in American political and legal culture and traditions. In fact, systemic violence is perhaps one of the most prominent and persistent facets of our nation's history and tradition. Despite this historical fact, the Court's conceptualization of history and tradition for purposes of constitutional interpretation has tended to focus narrowly on the intentions of the Founders at the expense of adopting a historical lens that accounts for the influence and effects of the structural violence that informed the creation of the nation's constitutional order. In only considering the history and tradition of wealthy, white, male enslavers who were responsible for early constitutional history, the Court has adopted an approach to constitutional law that remains firmly rooted in the pre-Civil War patriarchal slavocracy.

Federal congressional intervention is needed to counter the structural violence that has become heartily embraced by the Court and the states. Yet, this is neither likely nor will it be sufficient to repair our damaged democracy. Law and freedom will not come solely from institutional action. Redress will not be realized through judicial victories or the enactment of new laws alone. We should not look to the law or government institutions as providing a panacea for the social ills that it is responsible for having created. Local action, individual resistance, and community activism is the most powerful countervailing force to state violence.

Critically, our future need not be as bleak as our past. We can cease to operate on myths and reject those fables as a basis for constitutional interpretation. We can invite a purposeful reckoning of our history and tradition of systemic violence. We can reclaim and reconstitute our history and traditions with integrity and accuracy. We can embrace a full and truthful accounting of our collective past so that it may serve as a guide and a cautionary tale, rather than enabling the continuation of an incomplete national narrative that propagates policy violence. We can combat the erasure of minoritized people contemplated by structural violence by elevating their voices and experiences in the telling of that reclaimed history. We can center our national history and traditions on those who have resisted systems of exclusion and oppression as opposed to those responsible for the creation of those systems of exclusion and oppression. We can--and must--replace our violence-based governance structure with a humanity-oriented, truly democratic system. Structural violence is a part of our history and tradition, but it need not govern our future.

Erin M. Carr, Assistant Professor at Seattle University School of Law.