All content categorized with: Judicial Analysis
Filter
Post List
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.
Ramos v. Louisiana: The Fight for Unanimous Jury Verdicts as a Constitutional Right
By Becky Wasserman Associate Editor, Vol. 25 Ten out of twelve jurors. That’s all it takes in the State of Oregon to convict a person accused of a crime.[1] Before 2018, Louisiana also permitted non-unanimous jury verdicts in criminal trials.[2] Now, Oregon is the last…
Litigating the Constitutionality of Trump’s National Emergency Declaration
By Sam Kulhanek Associate Editor, Vol. 24 On February 15, 2019, President Trump declared a national emergency in order to push forward his long-standing plans to build a wall along the U.S.-Mexico border.[1] Earlier that same day, Trump had signed an act of Congress appropriating $1.375 billion for the border wall, which fell far short of his desired $5.7 billion and also came with certain restrictions.[2] Trump then announced his intention to declare a national emergency pursuant to the National Emergencies Act[3] in order to get the rest of his desired funding for the wall. Trump’s declaration is now under attack on several fronts as lawmakers, states, landowners, and advocates challenge this attempted “end run” around Congress.[4] In his proclamation declaring the emergency, Trump stated that the southern border “presents a border security and humanitarian crisis that threatens core national security interests,” and that it was necessary for additional troops and funding for military construction to be made available.[5] Trump now claims that he will have up to $8.1 billion at his disposal in order to build the border wall and finally fulfill his long-time campaign promise.[6] However, Trump is also facing numerous lawsuits challenging the legality of his actions, which many view as an attempt to access funds that Congress explicitly refused to give him, thereby violating the constitutional separation of powers.[7]
The Indian Child Welfare Act on Appeal: Is It a Racial or Political Preference?
By Taylor Jones Associate Editor, Vol. 24 On October 4, 2018, the Northern Federal District Court of Texas held the Indian Child Welfare Act (ICWA) to be unconstitutional. Since that decision, Cherokee Nation, Navajo Nation, and other tribes are seeking to have the Fifth Circuit Court of Appeals overturn the decision. Enacted as a response to abhorrent mistreatment and racism against Native children and families in the foster care and child welfare system, ICWA is a critical act that protects the best interests of Native children. In the absence of ICWA Native people are left vulnerable to the previous maltreatment and abuses at the hands of state governments. Throughout American history Native American people have been abused and mistreated by the federal and state governments. ICWA was enacted in 1978 as a response to a crisis that Native people have endured for centuries: Native children being separated from their families and tribes by state child welfare and private adoption agencies. Around the time of enactment it was estimated that 25-35% of Native children were being removed from their families, and of those children removed approximately 85% were placed outside of their communities regardless of whether there were fit and willing relatives within the community available for placement.[1] This process has been recognized as the result of racist and culturally insensitive beliefs that Native children would live better, more productive lives in the homes of white, middle-class families.[2]Distant Voices Then and Now: The Impact of Isolation on the Courtroom Narratives of Slave Ship Captives and Asylum Seekers
Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined that those captives claimed by a non-U.S. nation were slaves. The Court reasons that however “abhorrent” the slave trade was, the United States was obligated to recognize the rights of other nations to participate in it. In comparison, the Amistad concerned the fate of captives aboard a slave trade ship in which the captives committed mutiny, attempted to sail to Africa, but were captured by a U.S. vessel. The Supreme Court ordered them free despite the Spanish government’s claim that the captives were its property. Part I explores these different outcomes and argues that the absence of Antelope captives’ stories in the litigation process was partly due to the decision to isolate captives in slavery before their status was determined. In particular, it argues that this isolation affected the outcome of the Antelope by preventing captives from sharing their anecdotes and translating them to a format that would resonate with their legal counsel, the public, and judges. In contrast, the Amistad captives, while also detained, were situated close to those who could help them. They were able to transform their truths into a winning narrative for the court by understanding and leveraging the talents and expertise of counsel, and the biases of judges and the public. Part II argues that 200 years later, a similar environment of isolation suppresses the stories of another group with undetermined legal status: asylum seekers. Although slave ship captives were forced into the country with chains, while asylum seekers are driven into the country by fear, the legal status of both groups in their respective time periods was undetermined upon their arrival. Both groups deserved, by legal and moral standards, the opportunity to present the truth behind their arrival and to prove their legal status. Part II argues that the detention of asylum seekers mirrors the isolation of the Antelope captives by removing detainees from those most able to help them develop a persuasive narrative truth. Detention silences important voices, aggravates ineffective representation, damages public perception, and ultimately harms case outcomes.“When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability
This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of color without disabilities or by White people with disabilities due to the intersection of their race and disability. Yet often our legal and cultural institutions have been reluctant to acknowledge the intersectional experience, preferring instead to understand people by a singular trait like their race, gender, or disability. While courts have recognized the validity of intersectional discrimination claims, they have offered little guidance on how to articulate and prove the claims, leaving compound and complex forms of discrimination unaddressed. This Article thus offers an analysis of how courts and litigants should evaluate claims of workplace discrimination based on the intersection of race and disability, highlighting in particular the experience of Black disabled individuals. Only by fully embracing intersectionality analysis can we realize the potential of antidiscrimination law to remedy the harms of those most at risk of being denied equal opportunity.Supreme Court Considers Limits of Racial Gerrymandering
By Marcus Baldori Associate Editor, Vol. 22 In the coming months, the Supreme Court is expected to clarify its stance on the legal boundaries of racial gerrymandering. In December 2016 the Supreme Court heard oral arguments for Bethune-Hill v. Virginia State Board of Elections; the case will explore whether a requirement that certain districts have a minimum of 55% Black voting population violates the Equal Protection Clause and the Voting Rights Act.[1] The plaintiffs allege that the 55% floor was a scheme to pack black voters into a few districts, thereby diluting minorities’ overall effect on delegate elections in Virginia.[2] Before the Supreme Court granted cert for this case, the U.S. District Court for the Eastern District of Virginia held[3] that there was no Equal Protection violation because race was a not a predominant factor in the creation of 11 of the 12 challenged state district maps (citing criteria like compactness, contiguity, and incumbency protection[4]). The district court acknowledged that a “racial sorting” violation is independent of intent to dilute minority vote, and focuses only on whether the State has used race as a basis for separating voters.[5] Still, the Court held that the plaintiffs did not make the required showing that the legislature subordinated race-neutral principles to racial considerations in drawing the districts.[6]The Indian Child Welfare Act and the Battle over Lexi
By Laura Page Associate Editor, Vol. 22 After more than two years of protracted litigation and aggressive media coverage, the family at the center of a challenge to the Indian Child Welfare Act (ICWA) filed a petition for Supreme Court certiorari last month. The Pages, former foster parents…
Constitutional Disparagement? : Legal Challenges to Racist Imagery
By Tom Topping Associate Editor, Vol. 21 Contributing Editor, Vol. 22 In 2015 an activist group named People Not Mascots became one of the latest organizations to file a complaint with the U.S. Patent and Trademark Office seeking to have a disparaging image’s federal trademark revoked. The target…Closing the Gap Between What is Lawful and What is Right in Police Use of Force Jurisprudence by Making Police Departments More Democratic Institutions
On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against people of color, and this has caused a breakdown in trust between the police and the communities they serve. There are many causes for this breakdown in trust. Police officers are the faces of a criminal justice system that has dramatically disproportionate negative effects based on race and economic status. Practices like stop-and-frisk and broken windows policing have put people of color in hostile contact with law enforcement on a daily basis. The imposition of excessive fines and court fees in some communities has created severe criminal consequences often for traffic or other minor offenses.