Over the past few weeks, at least 1500 BLACK LIVES MATTER protests have swept across America. These were spurred by the outrage over the death of George Floyd who died as a Minneapolis police officer pressed a knee to his neck for nearly nine minutes while he lay handcuffed, face down on the ground. George Floyd is one of approximately 1,000 Americans killed annually by police, a disproportionate number of people whom, like him, are Black. The continued violence and brutality against Black Americans forces us to look in the rear view mirror and examine a key element of our constitutional heritage, the 14th amendment. It is clearly time to remember and reclaim this original promise, acknowledge the pain and anger felt by Black Americans, and form a unified front in the fight for racial equality.

The Equal Protection Clause of the 14th Amendment provides that a state may not… “deny to any person within
its jurisdiction the equal protection of the laws.”

Having Empathy is to acknowledge someone else’s pain and anger while feeling for them as human beings.

Unity is the state of being united or joined as a whole.

My first real exposure to Constitutional Law was a class taught by Supreme Court Justice Antonin Scalia at Pepperdine Law School 30 years ago. I knew this was a once in a lifetime opportunity. A chance to learn from a final arbiter of the law – a guardian and interpreter of our Constitution. However, I quickly discovered that I did not see eye to eye with his vision of the equality protections provided under the Constitution.

Justice Scalia interpreted the 14th Amendment of the Constitution using the concept of “originalism” – the idea that the document could only be interpreted using the literal text and its meaning when penned. Since the 14th Amendment was drafted after the Civil War to create equality for African/Black Americans, Justice Scalia argued it wasn’t meant to provide broader protection to individuals based on gender-based or sexual orientation discrimination matters. Luckily, the other Supreme Court Justices didn’t agree. Most of the other Justices have utilized an empathetic version of jurisprudence in their decision-making process to create laws which reflect the realities of peoples’ lives in our evolving society. This ensures that 19th century words and ideals don’t dictate our 21st century norms. The 14th Amendment has proven vital in the creation of laws to assure the protection of the rights and liberties of all Americans.

Fast forward to 2020 and recent events which demand a careful examination of our nation’s history with its promises to eliminate oppression and provide equal opportunities to historically subjugated minorities. Discussions of BLACK LIVES MATTER currently saturate social media, sometimes interspersed with statements that “all lives matter.” Of course, all lives matter. But it is important to put this statement into context and realize that not all lives are facing persecution.

For years, I represented special needs children against school districts and State Regional Centers who denied these children their constitutional rights to early intervention services and an appropriate education. While fighting to obtain services such as speech and occupational therapy, applied behavior analysis, and other educational requirements for these disabled children, I would not have welcomed the comment that “all children have a right to an appropriate education.” While the statement is true, it shows a lack of empathy and disregard of the violation of these victims’ human rights. Similarly, not all Americans are unjustly impacted by the systemic racism and police brutality experienced by Black Americans.

In March of 2020, amid concerns to contain the coronavirus, the government instituted public health regulations, stay at home orders, and created essential and non-essential employment categories. As a result, we modified our daily routines; sheltering at home with immediate family, working out of the house, and checking in with loved ones and friends only by telephone. Did this crisis bring the nation together and create a sense of a shared national fate? No, it didn’t. As people raided the toilet paper isles, and conflict rose over invasion of personal liberty claims stemming from the required use of face masks, the pandemic served less to unite us than to emphasize the issues that divide us.

The BLACK LIVES MATTER movement has accomplished what neither the establishment of the 14th amendment nor a pandemic has been previously able to do – it caused people to discover common ground while serving as a catalyst to unify us. The Movement has resulted in a nationwide outrage against social injustice and a desire to drive change. The tragic death of George Floyd provided the breaking point where many Americans finally understood and acknowledged the marginalization and oppression that Black Americans have felt for years. This is evident by today’s demonstrations which are markedly interracial, with diverse groups of people protesting together, creating solidarity and a springboard for sweeping reforms for equality. Only by working together can we can spark a global movement to effect change; whether it be by debating the restructuring of the police forces, supporting the universal wearing of body cameras by police, discussing the representation of Black Americans on the boards of companies, or the long overdue investment in education and economic development in poor and minority neighborhoods.

By exhibiting empathy, elevating each other’s voices, listening to new perspectives, and marching together, rather than against each other, we will initiate the positive change required to find real and permanent solutions to systemic racism. It is time to remember and reclaim the 14th Amendment’s promise of equal protection for all under the law to ensure that this amendment serves as the path to freedom and establishes full equality for every American citizen.