In this Article, I argue that we should understand #BlackLivesMatter as a claim on the Constitution—a very special kind of constitutional claim, on the Constitution as fundamental law. It is a paradigmatic contemporary example of this category of constitutional law for citizens, one that reaches back past the roots of the American Revolution and underlies the logic of popular sovereignty at the core of our system. Section I develops a conceptual sketch of fundamental law and its features. Section II then turns to the content of “Black Lives Matter” as a constitutional principle and traces its position in the arc of Black constitutional thought, from the emancipatory protestantism of Frederick Douglass to the provocations of Judge Bruce Wright and beyond. Section III explains why this principle matches the features of fundamental law and why it matters—developing the idea of the “constitutional bases of respect” and exploring the consequences of “Black Lives Matter” as a mediating principle in several areas of constitutional doctrine.
McNamee, David B.
""Black Lives Matter" as a Claim of Fundamental Law,"
University of Massachusetts Law Review: Vol. 14
, Article 1.
Available at: https://scholarship.law.umassd.edu/umlr/vol14/iss1/1