These Three Words

By ileta! A. Sumner

Author’s Preamble:

Generally, it is the goal of an expository writer to give enough details on a topic, present the facts, and let the reader come to her own conclusion. However, as you may know, or may come to see, this special topic is viewed very differently given one’s frame of reference. Therefore, I openly admit, I am very biased. For the majority of my thirty-year marriage, I have lived with three black males under my roof.

When my younger son was 18, a police car turned on its spiraling lights, beckoning him to pull over. Rather than stop, though, since he was six blocks from home, my son maintained his speed but continued to drive to our home. Upon my son’s arriving home, my

husband and a minimum of seven of our neighbors stepped outside to assess the situation. Thankfully, everything was resolved peacefully.

Nevertheless, a mere six months later, a similar occurrence took place down the road in Schertz, Texas, and instead of a mannerly conversation like that among the police, my son, and my husband, something else happened. That 18-year-old was tasered for failure to follow a police command; a large woman officer kneed the “adult” in the back as he screamed in pain, cradled in the fetal position, whimpering for his father all the while. The incident made the national news. There but for the Grace of God . . . .

Hence, I am not only biased, but I am extremely moved by this topic. It is personal and grabs me emotionally. Thus, it has been incredibly difficult to research and has taken an extremely long time for me to put pen to paper, so to speak. While it is not my intention to persuade anyone to adopt my viewpoint, I do hope to educate my readers about how this topic can be viewed so differently by people who may even have a lot in common. At the very least, I hope to enlighten our community about why this topic has moved the world to action, and it is my hope that this series of articles introduces at least one new fact to you, the readers, in this divided country, for:

Black Lives Matter

Justice for All.

Throughout the existence of the United States of America, and even before this land was so designated, the presence of black people on this soil has accompanied friction and contradiction. As their use within this piece suggests, there have been many three-word phrases that describe and proscribe life and the emotions connected with it since “We the People” was written by putting quill to parchment in the 18th century. Yet in the 21st century, in hindsight, we know that those three words did not mean ALL people. Perhaps if they had, we would not be experiencing the polarizing effect that the term “Black Lives Matter” elicits among many Americans. Rarely have three words universally caused as much division and derision while being uplifting and a catalyst for change. Consequently, no three-word phrase seems to have been so misunderstood.

Black Lives Matter.

These three words should not have to be said. Nonetheless, in 2021 they must be said, for nearly daily news breaks about another person of color being shockingly beaten—or even killed—in an unbelievable manner. As a result, these occurrences have had a radically adverse effect on the black community.

On May 25, 2020, something changed. A 17-year-old-girl named Darnella Frazier filmed an almost ten-minute video of a thenunknown police officer, Derek Chauvin, as he knelt, not in prayer, but in what appeared to be the exhibition of pure hatred, until his suspect, George Floyd, whispered his last utterance. The world watched it in abject shock. With the Floyd case, the scab was ripped off the wound of racism, and many were reminded of the anomaly that those who have fought and died for national rights in every war since the American Revolution have ironically struggled to obtain and retain these same rights for their own sector of the population.

However, if the philosophy of George Santayana (1863–1952) is indeed true, that “those who cannot remember the past are condemned to repeat it,” then to understand the Floyd case and the plethora of incidents involving brutal actions of law enforcement that could be caused by systemic racism, one should first look back at the unique way some of these patterns began.

First: The Backstory

We the People.

From the very beginning of the Preamble to the Constitution of the United States of America, those three words presented a paradox for the Founding Fathers. First of all, “people” at that time in our history automatically excluded women. It also excluded indigenous populations and black people. Worse yet, it demoted the black community brought from Africa and their heirs to the status of chattel.

The reasoning for this subordination was to resolve the controversial issue of slavery in service of the larger goal of securing unity for the independence of the United States. The larger Northern states wanted representation in the legislative branch to be based on population. However, there was friction over counting slaves as “people,” for it would give smaller Southern states a boost in their census numbers. On the other hand, while the smaller Southern states could appreciate the numerical bump in the numbers of people representing them, counting enslaved populations as “people” was problematic because the first Africans were brought to this land solely for the purpose of servitude. They were considered as nothing more than the shipment of chattel; bought, sold, and traded not unlike other pieces of property. Therefore, nowhere within the documents that laid the foundation of this country does the word “slavery” appear, despite the fact that the very existence of slavery violated the ideal of liberty that was central to the American Revolution. Likewise, when referring to the residents of this country, the Continental Congress purposefully deleted the word “slave” from the final version of the Declaration of Independence and the unamended Constitution.

Ultimately, in 1787, the framers added the Three-fifths Clause to the Constitution (which Clause would later be repealed in 1868 by the Fourteenth Amendment). The Three-fifths Clause defined “Persons” as the “whole number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, [and] threefifths of all other Persons.” Under the Clause, which was the result of a compromise among the framers, only three-fifths of each state’s enslaved population counted toward the state’s total population for purpose of apportioning the House of Representatives. Even though an enslaved person was considered three-fifths of a person for counting a state’s representation, no such person could vote.

Whether a black person was seen as less than a whole person, or if the black population was considered property, they were not accorded any of the rights that “persons” (i.e., white men) automatically received under either the Declaration of Independence or the original Constitution. Thus, from before the time that our nation began, black people have been considered “less than,” and have been climbing the incline to parity seemingly on a treadmill that allows some still to view African Americans as a race that has yet to catch up.

Protect and Serve.

The goal of law enforcement to “protect and serve” the community it serves is an oath taken by every level of policing in the United States.

Sir Robert Peel, who served as prime minister in England during 1834-35 and 1841-46, established the first major organized police department after passing of the Police Bill in 1828. American policing can trace its roots back to English policing when centralized municipal police departments began to form in the early 19th century based on the Peelian model. But early origins of American law enforcement were actually born out of a need to police enslaved Africans, control the behavior of black people, and protect the financial interests of their enslavers. The essence of what would ultimately become the basis of American policing can be traced back to when the very first slave ship, a Dutch Man-of-War vessel, landed in Point Comfort, Virginia, in 1619. As a matter of fact, the first documentation of deaths of persons of African descent at the hands of law enforcement can be traced back to that year.

Enslavers co-opted Barbadian slave laws (that were originally set up by the British to justify the practice of slavery and legalize the planters’ inhumane treatment of their enslaved Africans) into a colonial version of Slave Codes, beginning in the mid-1660s. Instituted in both Virginia and nearby Maryland, under these Slave Codes, the cargo that had been “persons” in their homeland were now no more than animals and, it follows, could not be accorded “human” rights. As property, enslaved people could not engage in activities that their white enslavers did.

More importantly, the the codes justified and permitted punishment for what the enslavers deemed unacceptable behavior by enslaved Africans. The underlying rationale for this manner of “protection” was that, ultimately, strict Slave Codes would save white lives.

As populations of enslaved people increased to work the expanding landscape of, and dependence upon, cash crops such as tobacco and cotton, white Southerners formed Slave Patrols. Beginning in 1704, these patrols (referred to as “paddy rollers” by black workers) were first developed in South Carolina and spread to Virginia (1727), North Carolina and Tennessee (1753), Georgia (1757), and by the time John Adams was President in 1800, Slave Patrols had dispersed to every slave state.

Historians believe the Slave Patrols lay at the roots of this nation’s violent and racist behavior toward black Americans. These patrols were, at their creation, a volunteer vigilante force that was charged with hunting runaway slaves and white people who assisted enslaved people escaping from the plantations. In addition, they were tasked with suppressing rebellions and crushing potential uprisings that could be mounted by enslaved Africans and those of African descent fairly easily (theoretically) for their numbers certainly surpassed those of their enslavers.

Therefore, the Slave Patrols worked only under cover of night, riding from plantation to plantation, stopping black people, forcibly entering cabins without warrants or permission, and searching homes regardless of race, whipping blacks for any or no reason, leaving everlasting welts on their bodies or beating them until the skin peeled away and exposed bloody muscles underneath. Furthermore, they would kill enslaved people who did not possess a pass from their enslavers (and many who did) or for the slightest alleged provocation, instilling fear and spreading terror throughout the black population. It was not unusual for one or more black family members to be whisked away during the night, never to be seen again. Even worse, many would be dragged away while working, going to or from work, or even in the midst of worship, only to be strung and lynched from enormous trees, often in a highly populated location where onlookers, many with picnic baskets and children in tow, would be provided that afternoon’s entertainment by watching as the black person(s) were lynched. This reassured the race in power that their version of law enforcement was reinforcing that population’s dominance while instilling holy terror in the lives of the enslaved.

For each body that could be seen swaying in the wind until a family member or some kind soul could surreptitiously remove and bury the carcass, there could have been a minimum of fifty who were never found. The takeaway from these Slave Patrols is that they were race-oriented instead of being raceneutral, for they were not designed to protect public safety but, like the Slave Codes from which they sprung, to protect white wealth and maintain the economic and social status quo, and their practices influenced policing for decades to come.

One Nation, Indivisible

As the size and number of plantations continued to grow, Slave Patrols were no longer useful. Starting in Boston in 1838, centralized police departments were created in larger cities, followed by New York City and Albany (1844), Chicago, Philadelphia, Newark, and Baltimore (1851). In their infancy, police departments were more focused on responding to disorder than stopping crime. It follows, then, that police officers were expected to control the “dangerous underclass,” which included the poor, immigrants, and especially black people.

As with the officers of England, American police officers at that time were unarmed. However, in 1858, an unarmed Irish immigrant who posed no threat to an arresting officer was, nonetheless, killed by a New York City officer who was carrying his personal gun. After the officer was exonerated, departmentissued weapons became the norm.

In the meantime, what had begun as a group of loosely connected colonies in the 17th century, had become by the late 18th century a formal country with rights under the purview of the individual states along with allegiance to, and protection by, the federal government as a whole. Those separate units became the United States of America. As such, the federal government began to make laws that pertained to all residents of the nation.

While the Southern states were enacting their Slave Codes, some individual Northern states created laws mandating that those who escaped enslavement be sent back to their former residence in the South. Likewise, in 1793, the federal government entered the fray by authorizing the return of such escapees with Fugitive Slave Laws. By 1850, the Fugitive Slave Laws expanded to include denying blacks the right to trial and the right to testify in their own defense, literally making them mute in a courtroom before a jury—not of their peers— but consisting only of white men.

After the Southern states seceded from the United States and the Civil War broke out, the announcement of the Emancipation Proclamation along with the passage of the Thirteenth Amendment signaled to the South that they could be in for a drastic change of lifestyle if they were to lose the Civil War. When the Civil War ended, with the South indeed losing, the Slave Patrols were formally disbanded. At long last, black people were given the freedom to travel, work, live and thrive in the manner of the ruling class, at least in theory. While black people did make some strides during Reconstruction, the concept that they were an “undesirable” group of heathens continued to hinder most of them, as the former Confederate states sought creative ways to constrain them geographically so that they remained the crux of the Southern workforce.

Then there were the Black Codes. These were a separate set of laws—some written, most simply “known”—that managed to govern the black population as if it lived in a different country. Some of the Black Codes were unwritten rules. For instance, black persons were prohibited from referring to their white employers, counterparts, or even sharecroppers—who may have been poorer than them—by their given names, always calling them “Mr.,” “Miss,” or “Ma’am,” while refraining from looking the white person directly in his or her eyes. In turn, black persons were always called by their first names, a daily reminder of their inferiority. Other Black Codes were mostly unreasonable demands. For example, if a black person were to drink from a “White’s Only” water fountain, he or she could be detained by the police indefinitely; or if an African American were to dip her toe in a public swimming pool, the facility would have to be drained, cleaned, and refilled while the violator could be incarcerated or worse.

Policing was used as a means of social control, once again protecting the interests of the ruling class. Fear was the overriding emotion instilled throughout the community.

The Black Codes ushered the era of Jim Crow laws into the lives of a majority of the black community. These Jim Crow laws replaced the Black Codes after Reconstruction and solidified a segregated America that was legitimized by the United States Supreme Court in the infamous 1896 decision in Plessy v. Ferguson. Plessy was the law of the land until 1954, when it was reversed by Brown v. Board of Education, but many Jim Crow laws continued in practice through the Civil Rights Movement of the 1960s.

Who’s Jim Crow?

The Jim Crow laws that were pervasive throughout the South and were enforced impudently by the police force as well as the everyday citizen had to have been created by some well-known politician named Jim Crow, right? Well, somewhat.

The person was indeed famous. However, Jim Crow was a fictional, dimwitted, exaggerated caricature of a black man who was played by the white actor Thomas Dartmouth “Daddy” Rice in the early 1830s. Rice was said to have developed the character, which he first performed between the acts of a play called The Kentucky Rifle, after watching an elderly black man crooning a tune called “Jump Jim Crow” in Louisville, Kentucky. Later, Rice appropriated the Jim Crow persona into a minstrel act, in which he wore rags and used burnt cork on his face (a thickened material that was darker than any natural pigmentation would ever appear) to give widespread acceptance of “black-face.” In black-face, Rice would perform an off-kilter dance with an outrageous dialect. Rice’s characterization of a black man fed on, and encouraged, outlandish stereotypes of the black culture, all the while heightening fascination with black life. As audiences became enthralled with the off-putting fictional character, “Jim Crow” became a derogatory euphemism for all black people. Though delight for the demeaning show finally began to die, an entire way of life was born in its wake.

The resulting Jim Crow laws were established to widely institute the notion that blacks and their lives were inherently inferior. Jim Crow laws also gave legitimacy to, and rationalization for, denying blacks equality and access to the simple necessities of life; and such laws ruled over absolutely every part of black culture. This happened with the consent and participation of law enforcement, to force black people to remain subservient to the white Southern traditional lifestyle.

Separate but Equal

Jim Crow laws (circa 1880–1965) overwhelmed black life in its entirety. They ushered in yet another era of white supremacy based on erroneous theories that those taken from Africa and their descendants where naturally less than—less than human, less than deserving, less than others who were given an opportunity for improvement, less than any and every white person they would ever encounter.

It is imperative to note that even though Jim Crow was the law of the Southern land, the majority of Americans, as well as the rest of the world, was ignorant of the heartless restrictions put on the entire black community in the South. Blacks were forced to live in substandard housing and to work in demeaning places of employment for almost no pay. Blacks had access only to certain businesses, or they were forced to receive limited services from white establishments (i.e., receive minimum service from the backdoor of a white restaurant). Even then, they were often subject to having those few rights snatched away at the whim of any white person. As in past centuries, “modern” policing was used to keep black people in their place according to the mores of the times. Police oversaw literacy tests or other inane methods of disenfranchising black men from exercising their relatively new right to vote. Likewise, the Jim Crow laws banned interracial relationships to prevent the “bastardization” of the white race. Hence, most Southern blacks were relegated to dilapidated parts of towns and cities and were physically removed from the premises if they attempted to move into a white part of a state.

Moreover, as before, many levels of law enforcement and the judiciary not only allowed this conduct to occur, but also backed it with force. Policing was used as a means of social control, once again protecting the interests of the ruling class. Fear was the overriding emotion instilled throughout the community.

This is not to imply that no segregation existed outside of what were once the Confederate states. Blacks were only allowed to attend certain schools, churches, libraries, restaurants, dime stores, salons, and to separate sections of movie theaters (often being forced to use a different entrance than “normal” people) in many cities across Northern, Midwest, and Eastern states as well. Still, while the police were trained to enforce the aura of superiority in those locations, as in the South, their tactics did not seem to be quite as vicious as the law authorities of the South. Historians believe that the ability of members of the police force to kill at will with any provocation—or with no provocation at all—remains an underlying impetus for how police have continued to react to potential suspects well into the 21st century.

To be continued . . .

What effect did the beginnings of policing have on 21st century interactions between law enforcement and black men, and why did Black Lives Matter become involved? Why does the Black Lives Matter agenda include voting reform? The answer to these and other nagging questions will be considered in upcoming issues of San Antonio Lawyer®, continuing the series: These Three Words.

ileta A. Sumner, esq. is a former President of the Bexar County Women’s Bar (2002) and the original General Counsel and creator of the legal department of the Battered Women’s and Children Shelter. She has been disabled since 2006. She can be reached at (210) 421-2877 (cell), litig8rij@aol.com.