Protest, Repression, and Rights in United States

This is a guest blog written by Todd Landman, Professor of Political Science and Pro Vice Chancellor of the Faculty of Social Sciences.

Last week, George Floyd’s funeral in Minneapolis took place amidst a popular outcry and expression of solidarity across the United States in the form of large-scale and diverse protest events, punctuated by rioting, looting, and destruction of property. Federal, state, and local responses to the uprisings varied considerably, ranging from the use of rubber bullets and teargas to disperse crowds to members of the police ‘taking a knee’ and walking with protestors in certain jurisdictions. Running through these various protest events is a strong collective grievance expressed over systemic and institutionalised practices of racism that have been an enduring feature of American history, politics, and society.

Collective movements to challenge racism in America have ebbed and flowed during this history. Such movements include the long struggle against slavery, the contestation over ‘Jim Crow’ laws after the formal emancipation of slaves in 1863, the popular abhorrence to the widespread use of lynching in the early 1900s, the civil rights movement and desegregation struggles in the 1950s and 1960s, and the continued contestation over the disproportionate use of violence, patterns of judicial sentencing, the persistence of socio-economic inequalities, and everyday forms of racism experienced by African Americans and other people of colour. State responses to these different movements have variously involved strong forms of repression and warfare, lobbying and advocacy, and legal reform and progress; patterns which have been fragmented across the different institutional and political geographies of the United States.

The dynamics of protest and repression have long been a feature of social science research, broadly configured into social movement studies that focus on the phenomenon of ‘contentious politics’. Social theories examine the rational, structural, and cultural explanations for the emergence, demands, trajectories, and impact of large-scale social protests, the dynamics of which often feature the use of state repression. The relationship between protest and repression varies by the type of regime in power, where democracies are less likely to engage in sustained repression than non-democracies, but are equally willing to deploy repressive responses in the face of large-scale popular dissent. This dynamic itself is further mediated by the nature of the dissent (peaceful or violent), the willingness of dissenters to accommodate state responses, and the willingness of the state to accommodate the demands of dissenters.

The current standoff in the United States fits these larger comparative findings, while notions of ‘the state’ are further differentiated across federal, state, and local jurisdictions. The US Constitution is founded on the idea of the separation of powers across each of the levels of government, which is designed to constrain political actors and prevent what James Madison called ‘the tyranny of the majority.’ The repressive capacity of the state resides in the federal government, state governments, and local governments with no overall coordinating institution and a degree of relative autonomy afforded to each level of government.

The use of police and other security forces against private citizens was proscribed in the Third Amendment in the Bill of Rights passed in 1789, which says that ‘No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.’ In 1807, the US Congress passed the Insurrection Act empowering the President to deploy the US Military and National Guard to suppress civil disorder, insurrection and rebellion, while the 1878 Posse Comitatus Act (updated in 1956 and 1981) limits the power of the federal government to use military personnel to enforce domestic policies. The last several decades have seen an increasing militarisation of the police and propensity to use excessive force across many instance of civil unrest, while the President last week sought to invoke the Insurrection Act to deploy the military to quell unrest across affected states and cities.

Freedom of speech, expression, association, and assembly are mainstay features of American democracy (and democracy more generally). These freedoms, protected in the US Constitution and part of the international law of human rights, allow for individuals to express their grievances, challenge incumbents, form political parties, trade unions, and other groups that engage in ‘interest intermediation’, and thus provide the primary channels through which to hold governments to account for their actions.

The current situation in the United States is thus the product of a rich array and complex nexus of race, rights, power, principle, and law. Civil society groups are exercising long held rights to expression and speech in the articulation of their grievances against racism. Government authorities are torn between protecting these rights, while at the same preventing the worst forms of violent protest. Attempts at reform have not progressed in ways that have eradicated the underlying problems that have triggered these latest protests. The impulse for protest is morally correct, legitimate, and based on well-documented evidence. The means of protest is largely typical of other peaceful protests. Some actors within both of these groups (civil society and the state), however, have overstepped the boundaries of reasonableness, which has seen an escalation in the use of violence and the undermining of the many freedoms that are at the heart of American democracy.

Research on social movements often uses the term ‘cycles of protest,’ where it is typical for protests to evolve through periods of rise, peak, and decline, and as like other movements, this current cycle of protest in the United States will dissipate at some point. The end to this current cycle, however, begs the question of ‘what is to be done?’ In 2016, the United Nations Working Group of Experts on People of African Descent published its report on its mission to the United States. Among its many findings, evidence of progress, and identification of gaps in implementation, the report makes a number of very strong claims relevant to recent events.

First, it expressed its concerns over ‘alarming levels of police brutality and excessive use of lethal force by law enforcement officials committed with impunity against people of African descent.’ Second, it expresses disappointment that there is no requirement for the 18,000 police departments and law enforcement agencies to report killings (see also the work of data scientist Patrick Ball here) and the relatively low rates of formal prosecution for such killings. Third, it highlights the disproportionate targeting of African Americans in ‘police surveillance, and experience and witness public harassment, excessive force and racial discrimination;’ the over-representation of African Americans in the penitentiary system; and the disproportionate use of the death penalty for African American prisoners. Fourth, it expresses disdain for the prevalence of hate crime and white supremacist groups that target African Americans. Fifth, it notes that patterns of discrimination limit the ability for African Americans to enjoy ‘their rights to education, health, housing and employment, among other economic, social, cultural and environmental rights.’

Along with other scholars and practitioners, the United Nations working group calls for the establishment of national human rights commission in line with the ‘Paris Principles’ that relate ‘to the status of national institutions for the promotion and protection of human rights.’ In 2016, University of Nottingham colleagues Christopher Phelps and Karen Salt joined me in a podcast discussion about how in addition to the establishment of such a human rights commission, the United States could follow the example from many other countries in setting up its own Truth Commission. Such a commission would have the legal mandate to gather testimonies, hold public hearings, and engage in a systematic data collection and analysis programme to provide the evidence, public acknowledgment, and actions to begin to heal the deep wounds felt by so many from this history and contemporary set of experiences. A national reckoning and concrete plan of action in the ensuing years are needed to address these enduring problems and reinvigorate a spirit of social cohesion and political consensus in order to ensure the future health of American democracy.

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