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Document Type

Symposium

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 29 (2018)

Abstract

In Parts I and II, I examine precedents involving the two broad topics with which this Essay began: policing and race, respectively. The narrative is perhaps more familiar in the policing context. Attorney General Jeff Sessions articulated it succinctly in a March 2017 memo ordering the reevaluation of all consent decrees the Justice Department had entered with police departments because “[t]he misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”4 The narrative applies with respect to race, as well, although it comes in different forms: the ideal of color blindness, the notion that we are living in a nearly post-racial society, the feeling that we would finally get past our racial history if we’d simply stop obsessing about it. After all, we hear, slavery ended 150 years ago, whites and blacks drink from the same water fountains, and the voters twice elected a black president. In this worldview, racial discrimination is cabined to the deplorable acts of a few retrograde individuals.

When the Few Bad Apples narrative has been ascendant—as I believe it is now—it has entailed the contraction of substantive rights and the erection of procedural barriers to redressing constitutional wrongs. The narrative has not always prevailed, however. At times, a majority of the Supreme Court has identified systemic injustice and reoriented legal doctrine to address it.

The narrative is constantly being contested, sometimes among the Justices themselves, more often in the arena of public debate. Our time is no different. In Part III, I briefly review how the Few Bad Apples narrative is inconsistent with what we know about police misconduct and racial discrimination. In Part IV, I conclude by considering how constitutional doctrine might change if the Few Bad Apples narrative were to lose currency in the area of civil rights, and what reasons there are to think this might or might not come to pass.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

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