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Symbolism and the Thirteenth Amendment: The Injury of Exposure to Governmentally Endorsed Symbols of Racial Superiority
One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state that merely asserting offense at a message does not meet this requirement, even if the message is offered by the Government. In this article, I show that holding to be incorrect. The Constitution provides certain absolute rights that the government may not infringe upon. One of those rights is the right to be free from slavery, which the courts have expanded to include all of its badges and incidents. Though courts have gone back and forth on what constitutes a badge of slavery, a historical look at the Thirteenth Amendment shows that amongst the things the drafters intended the definition to include was the philosophical message of racial supremacy if it is communicated by the government. In my article, I demonstrate that the scope of the Thirteenth Amendment includes a ban on the governmental endorsement of racial supremacy, including endorsements made in the form of symbols. I show that mere exposure to such a message is the unique form of injury that a violation of that right creates and, as such, is a concrete harm on which Article III standing can be based. Finally, I provide a workable test for determining whether a particular exposure to a symbol of racial superiority possesses all the elements necessary to constitute an injury in fact for the purposes of standing.Digital Colonialism: The 21st Century Scramble for Africa through the Extraction and Control of User Data and the Limitations of Data Protection Laws
As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism. Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and resources to access untapped data on the continent. Scant data protection laws and infrastructure ownership by western tech companies open the door for exploitation of data as a resource for-profit and a myriad of uses including predictive analytics. One may believe that strengthening data protection laws will be a barrier to digital colonialism. However, regardless of their relative strength or weakness, data protection laws have limits. An analysis of Kenya's 2018 data protection bill, the General Data Protection Regulation (GDPR), and documented actions of largescale tech companies exemplifies how those limits create several loopholes for continued digital colonialism including, historical violations of data privacy laws; limitations of sanctions; unchecked mass concentration of data, lack of competition enforcement, uninformed consent, and limits to defined nation-state privacy laws.
An Overlooked Consequence of the Government Shutdown: The Expiration of the Violence Against Women Act
By Mackenzie Walz Associate Editor, Vol. 24 On December 22nd, 2018, the United States government entered a partial shutdown after Congress and the White House failed to reach an agreement over the amount of funding to appropriate for the construction of a wall at our southern border. Since that moment, the national conversation has focused on the plight of immigrants and of federal workers. But the shutdown had another dire consequence, which, despite the effort of some Senators,[1] went virtually unnoticed: the Violence Against Women Act expired,[2] which left the fate of several grant programs critical to the protection of many Native American[3] women uncertain. The Violence Against Women Act (VAWA) was passed by Congress in 1994 in response to persistent advocacy from survivors, advocates, police, attorneys, and scientists to address the prevalence of violence plaguing women throughout the country.[4] After years of blatant inattentiveness to this violence, the passage and substance of VAWA was revolutionary.[5] The Act aims to reduce domestic violence, dating violence, sexual assault, and stalking by increasing the availability of victim services and by holding offenders accountable.[6] These objectives are carried out through the appropriation and disbursement of funds to programs run by independent nonprofit organizations or state, local, and tribal governments. Congress established the Office on Violence Against Women (OVW) within the Department of Justice to administer the grant programs. While four of the grant programs are considered “formula grant programs” and are funded through congressional appropriation, the remainder of the grant programs are discretionary, meaning OVW has the authority to determine the scope, eligibility, and funding of these programs.[7] VAWA has reduced the prevalence of domestic violence throughout the United States, but it has not eliminated it. Domestic violence still affects people from all different socioeconomic, racial, religious, and sexual identity backgrounds.[8] According to the National Coalition Against Domestic Violence, one in three women will experience intimate partner violence in their lifetime.[9]White Caller Crime: Racialized Police Communication and Existing While Black
Over the past year, reports to the police about Black persons engaged in innocuous behaviors have bombarded the American consciousness. What do we make of them? And, equally important, what are the consequences of such reports? This Article is the first to argue that the recent spike in calls to the police against Black persons who are simply existing must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices. First, racially motivated police reporting—calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read as suspicious, or otherwise worthy of police involvement had they been White. Second, racially weaponized police reporting—calls, complaints, or reports made against Blacks in an effort to capitalize on law enforcement mistreatment of Black persons, or harm the victim because of their race.Virtual Hatred: How Russia Tried to Start a Race War in the United States
During the 2016 U.S. presidential election, the Russian government engaged in a sophisticated strategy to influence the U.S. political system and manipulate American democracy. While most news reports have focused on the cyber-attacks aimed at Democratic Party leaders and possible contacts between Russian officials and the Trump presidential campaign, a more pernicious intervention took place. Throughout the campaign, Russian operatives created hundreds of fake personas on social media platforms and then posted thousands of advertisements and messages that sought to promote racial divisions in the United States. This was a coordinated propaganda effort. Some Facebook and Twitter posts denounced the Black Lives Matter movement and others condemned White nationalist groups. Some called for violence. To be clear, these were posts by fake personas created by Russian operatives. But their effects were real. The purpose of this strategy was to manipulate public opinion on racial issues and disrupt the political process. This Article examines Russia’s actions and considers whether they violate the international prohibitions against racial discrimination and hate speech.
What the Passage of Michigan’s Proposal One Means for Black and Latinx People
By Elizabeth Morales-Saucedo Associate Editor, Vol. 24 On November 6, 2018, 56% of Michigan voters supported the passage of Proposal One approving the legalization of recreational use and possession of marijuana by persons 21 and older.[1] Michigan is the tenth state in the United States, and the first state in the Midwest, to legalize the recreational use of marijuana.[2] The initiative is set to become law by November 26, 2018, according to Secretary of State spokesman Fred Woodhams.[3] Before Michigan residents ‘light up,’ however, caution is advised as marijuana is still an illegal substance under federal law.[4] This advice is particularly true for Black and Latinx people who will likely continue to face higher arrest rates for marijuana than white people after its legalization.[5] As Michigan is the tenth state to legalize marijuana, some lessons can be learned from the experiences of previous states who passed similar legislation. Specifically, data collected from Colorado, Alaska, and Washington, D.C. helps answer the question; what does the passage of Proposal One mean for Michigan and its communities of color?
How Jeff Sessions is Quietly Transforming Immigration Law to Promote His Anti-Immigrant Agenda
By Samantha Kulhanek Associate Editor, Vol. 24 The Attorney General’s authority to refer Board of Immigration Appeals (“BIA”) decisions to himself for review was established via regulation in 1940,[1] and yet this power appears to be receiving more attention today than it ever has.[2] The appointment of Jeff Sessions as Attorney General prompted a string of these unique reviews,[3] in which Sessions has attempted to profoundly alter the way immigration courts interpret certain provisions of the Immigration & Nationality Act (“INA”). The most publicized example of Sessions’s exercise of this referral power thus far has been his decision in Matter of A-B-, where he attempted to effectively narrow the circumstances in which individuals fleeing gang violence or domestic abuse may receive asylum in the U.S.[4] However, some of Sessions’s other decisions resulting from his use of the referral power have received relatively little attention, and yet may have massive consequences for the immigration system. Three decisions in particular have attacked the discretion of immigration judges and threaten to interfere with their judicial independence and how they handle their dockets.The Case Against Police Militarization
We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization. This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is not that it brings about more violence or abuse of authority – though that may very well happen – but that it is based on a presumption of the citizen as a threat, while the liberal order is based on precisely the opposite presumption. A presumption of threat, we argue, assumes that citizens, usually from marginalized communities, pose a threat of such caliber that might require the use of extreme violence. This presumption, communicated symbolically through the deployment of militarized police, marks the policed community as an enemy, and thereby excludes it from the body politic. Crucially, the pervasiveness of police militarization has led to its normalization, thus exacerbating its exclusionary effect. Indeed, whereas the domestic deployment of militaries has always been reserved for exceptional times, the process of police militarization has normalized what was once exceptional.
Resist, Revolt, Rinse, Repeat
By Cleo Hernandez Associate Editor, Volume 23 A public square, angry words, angry people, police in riot gear, torches bright against a night sky, flags, homemade signs and banners, summer heat. Some would say that this is what democracy looks like, [1] but perhaps it is the failure of democracy that brings people to the streets. For those whose combined voices, votes, or dollars are too small in number to form a majority capable of effecting political change,[2] or for those of color competing against a white majority, protests and other forms of unconventional political participation may seem more effective at achieving equality goals.[3] The recent incidents in Charlottesville can be characterized as a racial protest.[4] Charlottesville 2017[5] was not a spontaneous outburst of hatred and violence fanned into flame by diverging partisan reactions to the Trump administration,[6] but another battle in America’s longstanding struggle against racism. Early protest scholarship orbited around the assumption that the benefits of protest are undeniable, but that the extreme inherent costs should always prevent people from protesting.[7] Costs of protesting can include anything from the increased likelihood of arrest, to the time required to protest, to the possibility of losing employment because of protest participation. Indeed, the law operates on four different yet interlocked levels to restrict protest and discourage people from protesting.[8] Police officers regulate protestor behavior in the streets with varying degrees of physical force.[9] Legislatures enact laws that restrict protests in time, place, and manner.[10] Administrative agencies sometimes require permits and fees for protests.[11] And finally, the judiciary then operates as a reviewer of these three regulators in freedom of speech concerns, and as a final restrictor for protestors if they face criminal charges.[12]The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias
The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amendment jurisprudence. The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts to compete with each other for acceptance. The theory maintains that the best ideas and the most reliable information will emerge and prevail. The well-informed electorate that results from this process will then make better decisions in our participatory democracy. During the 2016 presidential election, however, it became apparent that a number of statements made by then-candidate Donald Trump proved difficult to rebut in the public dialogue, even though they were clearly and demonstrably false. Of particular concern, some of those statements fed into biases against and stereotypes of racial, ethnic, and religious minorities and women. This disinformation stubbornly resisted efforts at correction. This Article discusses the marketplace of ideas model and its underlying assumptions about how human beings process information and make decisions. It then proceeds to explain, through recent social science research, why the dynamic envisioned by the marketplace of ideas theory often fails to provide an effective counter-narrative to statements that reinforce racial, ethnic, religious, and gender biases and stereotypes. The Article concludes with some necessarily preliminary and exploratory thoughts about potential curative measures.