'Black Lives Matter' As a Claim of Fundamental Law

67 Pages Posted: 20 Jan 2019

See all articles by David McNamee

David McNamee

Princeton University, Department of Politics; State University of New York (SUNY) - Baldy Center for Law and Social Policy

Date Written: January 9, 2019


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.

Keywords: Constitutional Theory, Constitutional Law, Democratic Theory, Fourteenth Amendment

Suggested Citation

McNamee, David, 'Black Lives Matter' As a Claim of Fundamental Law (January 9, 2019). University of Massachusetts Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3312825

David McNamee (Contact Author)

Princeton University, Department of Politics ( email )

Princeton, NJ
United States

State University of New York (SUNY) - Baldy Center for Law and Social Policy ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
6153301521 (Phone)

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