No question: American law’s worst moment in 2020 was the police murder of George Floyd.
His murder was a stand-in for countless instances of police violence directed against Black people, including Breonna Taylor, Ahmaud Arbery, Elijah McClain, and Rayshard Brooks. And, on the last day of the year, yet another Black man, Dolal Bayle Idd, died after being shot by law enforcement officers in Minneapolis, Minnesota, the same city where Floyd was killed.
But these horrible events, which rightly launched waves of angry protest, were by no means the only time during the last year when the American constitutional and legal system was put to the test and failed badly.
Think about:
- The Senate acquittal of President Trump in his impeachment trial in January.
- Mitch McConnell’s hypocrisy in expediting the confirmation of Amy Coney Barrett.
- Justice Brett Kavanaugh’s startling endorsement in a Wisconsin voting rights case of a wild theory that federal courts should not allow state courts to intervene in the administration of presidential elections.
- Justice Samuel Alito’s “ultra-partisan” rant before the Federalist Society.
- State legislatures imposing arbitrary restrictions on mail-in ballots.
- Attorney General William Barr’s complicity in the president’s grotesque photo op at Washington’s St. John’s Church (and, actually, almost everything Barr touched).
- And, far from least, President Trump’s abuse of the clemency power.
(No doubt you will have your own list.)
But all pale in comparison with the wave of racially tinged police killings epitomized by George Floyd’s murder.
No words are adequate to capture the brutality and inhumanity of that act.
It is hard to find the right language to name moments when those charged with upholding the law turn it into an instrument of evil. But the effort to find those words should be an important part of the work of legal scholars. It is also important for citizens and activists to name such moments as they resist abuses of power and perversions of legal authority.
That’s why I would label the May 25 murder of George Floyd as “infamous.”
As almost every student of American history knows, President Franklin Delano Roosevelt used that word to describe Japan’s December 7, 1941, attack on Pearl Harbor, calling it a “date that will live in infamy.” But it has seldom been used to describe instances of law’s own failings.
To offer but one example of this reticence, take Jamal Greene’s justifiably renowned article on the Supreme Court’s “anticanon.” Greene labels a few of the most odious Supreme Court decisions—Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States—”anticanonical,” but not infamous.
Perhaps he avoided the language of infamy because his analysis was empirical, rather than normative. Cases are marked as anti-canonical, he suggests, by the frequency with which subsequent cases and legal scholarship repudiate them. They serve as what Greene called negative reference points in a narrative of constitutional progress.
Their anticanonical status does not derive from the fact that they were poorly reasoned or from the judgment that they are morally wrong. Indeed, in Greene’s view, identifying cases as anticanonical showcases the ease with which reasonable judges can perpetrate constitutional wrongs.
I suspect that scholars and activists avoid the language of infamy when they describe the moral horrors perpetrated by legal officials because the word seems odd, out of date, a leftover from a different time. Yet it is not completely foreign to American law.
In various places, infamy has been part of the story law tells about citizens’ conduct, rather than the stories citizens and scholars tell about the law. Designating someone or something as infamous can be traced back to Ancient Greece and Rome where “infamia” was used to describe certain dishonorable behavior. That designation could be based on a legal finding, usually attendant to conviction for committing a crime. Alternatively, it could be based on a pattern of conduct which, while not criminal, the community regarded as disreputable.
But whether a legal designation or a social fact, “infamia” transformed people into social outcasts, stripping them of honor and dignity. It also deprived those so designated of the privileges of citizenship, including the right to vote or testify in court.
Infamy stigmatized. To be infamous was to be put on the other side of a social boundary, marked as other. It was reserved for offenses and behaviors that went to the core of what it meant to be an upstanding person.
Malicious conduct carried out in the name of the law, like the murder of George Floyd, offends against America’s core constitutional and legal values and should be labeled infamous—and marked as outrageous, as other.
Doing so is not easy or uncomplicated. The history of the term infamy is not a happy one. In the ancient world, “infamia” was also used to oppress certain groups of people and to defend the existing social hierarchy.
A fear of abuse in the designation of infamous crimes is reflected in the Fifth Amendment to the American Constitution, which entitles persons accused of such crimes to a grand jury hearing. Commentators on American criminal law at the time the Fifth Amendment was ratified said that “an infamous offence is one involving moral turpitude in the offender, or infamy in the punishment, or both.”
The McCarthy era brought renewed attention to worrying stories of infamy’s misuse and its legal meaning. It witnessed the birth of “badge of infamy” claims in due process cases. These claims were brought by people who refused to take loyalty oaths and, as a result, were branded as disloyal in some government proceedings.
The Supreme Court acknowledged that a “badge of infamy” would be affixed to anyone branded disloyal by the government but, in another failure of law, held that that in itself was not sufficient to trigger the due process guarantees of the Fourteenth Amendment.
The badge of infamy affixed to the people victimized by McCarthyism who nonetheless stood up for free speech, freedom of association, and the right to dissent was in truth a badge of honor. It recognizes the courage it took to stand up for American law’s core values.
That courage is needed now to resist creeping authoritarianism which threatens to turn law to its purposes and call out and end brutality behind a badge.
The murder of George Floyd was American law’s worst moment in 2020, as well as the most horrifying example of cruelty and cowardice carried out by persons sworn to uphold and defend the law.
May 25, 2020, is a date that will live in infamy.
