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Litigating Birthright Citizenship in the Shadow of World War II: The Continuing Relevance of a Forgotten Case
With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has received little prior attention: the degree to which restrictionist arguments, past and present, have relied on the statutory frameworks of their respective eras. The 1942 litigation, which represented the culmination of two decades of efforts by anti-Asian groups to strip Japanese Americans of citizenship, sought to tether judicial interpretation of the Fourteenth Amendment’s Citizenship Clause to the racial exclusions then embodied in the immigration and naturalization laws. While the restrictionist arguments being put forward today are quite different, they, too, are deeply dependent on a particular statutory framework – namely, the array of late-twentieth century legislative changes that have collectively produced the contemporary construction of immigrant illegality. This Article argues that if courts were to allow the interpretation of the Fourteenth Amendment’s Citizenship Clause be guided by the shifting configurations of exclusion embodied in U.S. immigration policy, they would be defeating one of the central aims of the Fourteenth Amendment: to place birthright citizenship beyond the reach of repeal by a subsequent Congress.Police Surveillance and the Perils of Techno-Solutionism
This Article charts domestic law enforcement’s use of video surveillance, beginning in the backlash to the Civil Rights movement in the late 1960s, continuing through the War on Terror and, more recently, in the context of the post-George Floyd public critiques of policing. The undergirding philosophy of policing’s embrace of surveillance technology is techno-solutionism, the view that all complex social situations can be simplified to measurable data primed for quick-fix, unbiased, algorithmic answers. While technology may have initially been adopted by police to respond to specific problems, it has changed the problems themselves, altered the array of potential solutions, and changed policing’s ultimate objectives. In the early 2020s, as data became capable of greater integration and algorithmic analysis, law enforcement turned to video surveillance as a tool to address staffing challenges – a “force multiplier” promising increased efficiency in meeting policing goals with fewer officers. While intended to solve perceived staffing challenges, surveillance technology has remolded the purposes of policing. It has reoriented policing from evidence gathering and deterrence to a focus on constant data collection and crime prediction. This Article introduces the concept of the suspect data double, virtual profiles that reduce each of us to uninterrogated correlations mined from constant surveillance and utilized by law enforcement. It argues that the expansion of police surveillance in the last fifty years, in general, and its techno-solutionist trajectory, in particular, lead to troubling implications concerning how surveillance technology will deepen racial bias and move policing towards pervasive data gathering.The Vanishing Voice: Juror Disenfranchisement in Capital Cases and The Erosion of Constitutional Protections
After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. Florida and Alabama were no exception and have continued to evolve their death penalty laws. Alabama evolved from the requirement of a jury to agree on a death sentence to a requirement of a ten-vote majority for a death penalty recommendation. On the other hand, after the heinous acts of Nikolas Cruz in Parkland in 2018, Florida removed the unanimity requirement and implemented the lowest requirement of any state – eight votes – for the death penalty recommendation. The change was in response to the outcry against Cruz being sentenced to life imprisonment, rather than death. However, it also enhanced an underlying systematic flaw of juror disenfranchisement seen in several states, which has reverted the power of the minority juror vote back to the era of Jim Crow. This Article examines the history of the death penalty and the historical struggle of minorities to gain the right to vote on death penalty panels. It explores the removal of the unanimity requirement’s impact on the minority vote, including the present state of minority underrepresentation on death panels, the feelings of death penalty jurors, and minority divergent perspectives on death. Data has reflected that the use of peremptory challenges leaves death panels with very few minorities to participate in a core process of the legal system. Under these circumstances, the removal of unanimity extinguishes meaningful discussion and creates detrimental consequences, increasing the likelihood that a minority vote on the death panel will be ignored or suppressed and, therefore, abridged. The combination of these factors leads to an erosion of constitutional protections under the Sixth and Fourteenth Amendments. This disenfranchisement cannot be allowed to continue, and solutions such as abolishing the death penalty, extending the Batson test with data requirements for death cases to ensure juror diversity, and requiring all states to mirror the federal death penalty’s procedural protection of unanimity should be considered.Internal Scholarship
An In-Depth Criticism of Shaw v. Reno
If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination.1 See, e.g.Implications for Race-Based Scholarships in the Wake of SFFA
This past summer (June 29, 2023) the United States Supreme Court overturned 45 years of precedent and ruled that the University of North Carolina and Harvard University’s affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment by considering race in their admissions process–effectively ending affirmative…Teaching Slavery in Commercial Law: The Simulation
THIS SIMULATION IS REFERRED TO IN VOLUME 28, ISSUE 1, TEACHING SLAVERY IN COMMERCIAL LAW BY CARLISS N. CHATMAN. The Simulation: Syllabus: Slavery and Commercial Law At Washington and Lee Teacher’s Manual…
