Americans have been on an endless quest to embody in our system of laws the idea of moral perfection. Disappointment is our constant companion on this journey because the law is a poor substitute for a well-formed moral conscience. Those who proclaim what is known as “Natural Law” theory may disagree with me, but in fact, American history proves, time and again, the terribly finite limits of the law when it comes to morally correct decisions.
The susceptibility of law to a narrow (and narrow-minded) construction of words interpreting evidence as understood through the filters imposed by one point of view (a prosecutor, a judge, a juror) produced morally repugnant decisions from Dred Scott (1857, denying citizenship to African Americans) to Plessy v. Ferguson (1896, upholding racial segregation) to Korematsu (1944, upholding internment of Japanese American citizens) to Carrie Buck (1927, upholding forced sterilization). Sure, American legal history has also produced some redeeming moments like Brown v. Board of Education (1954, desegregation of schools), the Civil Rights Act of 1964 and the Voting Rights Act of 1965, among other landmarks of civil rights — all in danger of curtailment in an era when we feel less urgent about protecting civil rights and liberties.
More frequently, however, and especially in recent years, we have seen vigorous and loud debates over whether certain laws and legal decisions are not just legally correct but morally right — some denounce Roe v. Wade (1973, legalizing abortion) as immoral while others hail it, and in the same way some would demand Hobby Lobby (2014, private employers can refuse to cover contraception) and Citizens United (2010, unlimited corporate spending on elections) be enrolled as immoral decisions while others believe they are morally right.
Interestingly enough, the loud public debates today about law and morality seem to revolve around sex and money, while some of the gravest injustices continue to affect and afflict people on the basis of race despite the appearance of settled law on this topic, illustrating the rather large gap between law and morality.
Reading the testimony, evidence and results of the grand jury decision in Ferguson, Missouri, concerning Michael Brown’s death at the hands of now-resigned Officer Darren Wilson — and considering the aftermath including Wilson’s subsequent interview on ABC — what’s clearest of all is the limitation of the law, once again, to satisfy fundamental concepts of morality. The question is not really whether the grand jury decision was right or wrong — in our legal system, the grand jury was entitled to review the evidence presented and render its decision. The decision is what it is, a most unsatisfying answer, to be sure, but in fact, most likely legally correct based on how the evidence was presented.
In the aftermath, the immense expressions of outrage and passionate denunciation of the legal process and its agents (the prosecutor, the police) reveal the plain fact that the grand jury could not satisfy the quest for a morally correct result in the sad and tragic death of Michael Brown. Indeed, the evidence that came forward after the announcement of the decision exacerbated the sense of grave injustice, appallingly immoral decision-making on the part of those entrusted with keeping the peace.
In particular, the testimony of Officer Wilson — both in what he said to the grand jury, and in what he said later to George Stephanopoulos in the ABC interview — is an object lesson in what might be legally correct and morally repugnant. Legally, he said he was in fear and responded in self-defense. The grand jury accepted this line of reasoning. But a moral ear to his testimony would have heard him describe the young black man, Michael Brown, as a “demon,” using shamefully stereotypical language often associated with the worst forms of racism in the past. Wilson had other options to avoid shooting Brown; he could have summoned help, stayed in his car and waited for help. But to Wilson, based on Wilson’s own language, Brown was not a human being but some kind of monster to be killed.
Wilson could have tempered his heat-of-the-moment perception of Brown had he expressed any second thoughts in his ABC interview. Instead, the now-resigned police officer said that he had no regrets, that he would do it exactly the same way all over again.
Agree or disagree with the self-defense line, what kind of human being expresses no regret whatsoever for killing another? Such obtusely amoral sensibilities raise a frightening spectre of police officers as automatons, fearful borgs of sci-fi lore, shooting to kill with no second thoughts. Shooting at whomever appears to be a “demon” — playing to ancient racist stereotypes that make black men, in particular, constant targets. Even children are not safe, as the recent news of the killing of Tamir Rice in Cleveland confirms.
The most painful lesson of Ferguson is the realization that more than half a century after the great legal triumphs of the Civil Rights Era, in too many places moral practice has not begun to catch up with the laws that were put into place to ameliorate centuries of racial injustice. In too many jurisdictions, police receive training that encourages them to react with force and violence, rather than intelligent and rational analysis of the scene. The trend toward police militarization fuels the perception of “us v. them” with “them” being aliens, beings who do not look like “us” — people whose skin color or accent or other characteristics place them outside of the “norm” perceived by those with power. With guns, badges and the legal authority to shoot-to-kill based on their own judgment, even if that judgment is lacking in sound moral reasoning. Many commentators noted, after the Ferguson grand jury decision, that indictments are rare after police shootings.
Moral failure produces the gravest of injustices. The law puts on the appearance of correctness, but the results are completely unfair, unjust and warped in a way that debilitates the community. African Americans, in particular, continue to suffer not only discrimination but serious threats to their lives and livelihoods as a result of a still-pernicious culture of suspicion, fear and racial hatred in many parts of the nation. Racial hatred also fuels the irrational opposition to immigration reform. Racial hatred is the clear subtext in so much of the more virulent opposition to President Obama.
What’s to be done when we can’t rely on the law to protect everyone in the community, when our reliance on law fails so miserably? We must start by remembering that the law is not a substitute for morality, that what is legal may not lead to the correct moral choice at all. We must insist that police and law enforcement authorities everywhere receive better education and training in moral reasoning and conflict resolution. We must urge courts and the legal system to adopt what Trinity Alumna Liana Fiol Matta ’67, Chief Justice of the Supreme Court of Puerto Rico, called the virtue of “empathy” in applying the law in any given circumstances. In her remarks at Trinity on November 19, Chief Justice Fiol Matta, she said, “A perspective that is respectful and empathetic is essential to attain justice.”
We can never stop working to achieve that grand vision of legal justice as perfectly aligned with our deepest understanding of morality. And yet, being pragmatic, we also must understand that the highest expression of the human intellect is not deferring to the law, but rather, upholding what is moral. Those of us who make our life’s work in teaching and learning need to think long and hard about the educational challenges at the center of the Ferguson problem.
What are the lessons of Ferguson that we must continue to explore? I welcome comments from members of the Trinity community — click on the comments link below or email me at firstname.lastname@example.org