Williams College Law Journal, Volume III, Issue II

WILLIAMS COLLEGE LAW JOURNAL VOLUME III, ISSUE II Spring 2014

The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.

We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.

Essays can be submitted via email or our website http://williamscollegelawsociety.com/lawjournal/submit/

The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support.

Williams College Law Society Williams College Council Williams College Dean’s Office Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267 WilliamsCollegeLawJournal@gmail.com www.WilliamsCollegeLawSociety.com/lawjournal

COVER: Design by Gloria Joo i

WILLIAMS COLLEGE LAW JOURNAL Volume III Issue II Spring 2014

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Letter from the Editor

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The Supreme Court and the Legal (Color) Blind System The Court’s Role in the Evolution of Colorblindness and Finding a Remedy Emmanuel McMiller

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From Katzenbach to Shelby County The Evolution of the Judicial Standard Applied to the Voting Rights Act of 1965 Hayden Rookey-Ley

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Interview with David Caplan Copyright Lawyer at Kilpatrick Townsend Robin Park, Hye Rin Lee

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Should the Patriot Act be Extended?

An Analysis of Safety Versus Liberty in the Age of Terrorism Rebecca Acree

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Dazed and Confused The Federal Government’s Attempts to Legitimate Drug Policy Through Collective Interest Arguments Sam Green

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Foreign Policy Foreign to the Constitution Becky Tseytkin

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The Racialization of the People of Guam as Second-Class Citizens Monica Civille

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Rethinking Anti-Gang Ordinances A Comparative Study of City of Chicago v. Morales, and Gallo v. Acuna, and how Chicago can Fight Gangs Going Forward Henry Bergman

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LETTER FROM THE EDITOR Dear Reader, Law Journal Editorial Board Editor-in-Chief Robin Park Layout Editor Feixue Gong Managing Editors Becky Tseytkin Yogeeta Chatoredussy Features Editor Hye Rin Lee Associate Editors Rebecca Acree Aglaia Ho Andrei Sarabia Online Blog Editor Sam Green

It is my great pleasure to present to you the seventh issue of the Williams College Law Journal. Through the tireless efforts of our writers, editorial board, and staff—both past and present—the journal has seen tremendous growth in a few short years. And while the editorial board has greatly shifted in that time, our goal remains unchanged. Day-by-day, we strive to build a more attractive and engaging platform for stimulating legal discourse.

This year, the journal has expanded to include an online blog section and launched its own subscription system. With an editorial staff of our size, each new project requires the work of the entire team. I would like to thank the entire editorial staff for putting in their precious time and devotion to the development of these projects, while simultaneously assembling the print edition. And of course, none of this would have been possible but for the generous support of professors and the Williams community at large.

Online Blog Staff Wilfred Guerron Roya Huang

Even with these exciting accomplishments behind us, we are continually looking forward to future issues, new goals, and improvements to better serve our readers. We hope that you will continue the journey with us, to see our future projects come to fruition.

Business & Marketing Coordinator Charley Wyser

Without further delay, I introduce you to our current issue. We hope you enjoy it.

Williams College Law Society Executive Board CO - PRESIDENTS Yogeeta Chatoredussy Roya Huang SECRETARY Marisol Sierra TREASURER John Martin PUBLIC RELATIONS Angela Chang EVENTS DIRECTOR Mary Beth Dato EDITOR-in-CHIEF Robin Park LAW TEAMS Katherine McDowell

All my best, Robin Park ‘17 Editor-­in­-Chief

The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.

All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

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The Supreme Court and Legal (Color) Blind System The Court’s Role in the Evolution of Colorblindness and Finding A Remedy

By Emanuel McMiller Williams College

“We have not ended racial caste in America; we have merely redesigned it.”

-Michelle Alexander, The New Jim Crow “Blindness and indifference to racial groups is actually more important than racial hostility to the creation and maintenance of racialized systems of control.”

-Martin Luther King, Jr. Introduction After the Civil Rights movement, the legal and political rights that had been gained were interpreted by many as a sign that racism had been “fixed” and that we must no longer acknowledge race in order to have an equal society. However these gains by the movement within the court system were short-lived and not as extensive as necessary.

“Along with the suppression of explicit white racism the dominant legal conception of racism as a discrete and identifiable act of “prejudice based on skin color” placed virtually the entire range of every day social practices in America-social practices developed and maintained throughout the period of formal American apartheidbeyond the scope of critical examination or legal remediation.”1 The Court’s holding in Washington v. Davis established the doctrine of discriminatory 1 2

purpose, which requires plaintiffs challenging the constitutionality of a facially neutral law to prove a racially discriminatory purpose on the part of those responsible for the law’s enactment or administration. This doctrine places a heavy and an often impossible burden upon those bringing suit, and is inherently flawed because the injury of racial inequality exists no matter what the motives of the decision-makers are.

The Court’s refusal to focus on correcting historical wrongs, its recognition of only racial intent, and its disregard of disparate impact, formed the beginnings of our current legal colorblind system that has had far-reaching impacts on all matters of society, especially as they relate to the law.

Many scholars have described our post-civilrights era as one in which “visible forms of racism, such as jobs or neighborhoods advertised for ‘whites only,’ have disappeared, while stealth practices, such as predatory lending in the housing, education, and consumer credit markets, real estate steering, and more subtle forms of discrimination in employment, have taken their place.”2 This has emerged at the same time and partially as a result of this new racial politics surrounding the idea of colorblindness.

The Supreme Court is responsible for our colorblind legal system, which is the cause of an unequal and unjust society without opportunity for recourse. This system is based primarily upon the Court’s adoption of the intent principle. Because this system is the product of the Supreme Court, it is the judicial branch’s responsibility to remedy its wrongs. In its decisions, the court system must take into account the effect of colorblindness in order to help alleviate the implicit bias associated with

Kimberle Crenshaw, Critical Race Theory: The Key Writings that Formed the Movement (pages xiv-xv).

Jennifer L. Pierce, Racing for Innocence: Whiteness, Gender, and the Backlash against Affirmative Action (Stanford, CA: Stanford University Press, 2012), 8.

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The Supreme Court and The Legal (Color) Blind System unconscious race, and the unintended effects that its colorblind doctrines produce in society.

Dawn of a New Age and the Intent Principle The intent principle, together with America’s strong tradition and commitment to the doctrine of political liberalism, formed our current system of colorblindness. Although other principles such as the state action doctrine and the discrimination doctrine, mentioned by Girardeau Spann3 in his book Race Against the Court, along with the Court’s use of formal race have played a part in our current system of a supposed non-racial society, the intent principle established by the Supreme Court, and the legal thinking behind it has been the major hindrance in advancing to a more equal society.

“...the intent principle established by the Supreme Court... has been the major hindrance in advancing to a more equal society.”

The Supreme Court created the legal colorblindness of the United States when it established the intent principle in Washington v.

Davis, in which a qualifying examination used to select District of Columbia police officers was alleged to be racially discriminatory. In this case, the Supreme Court held that because the allegation of racial discrimination related to the discriminatory impact of the qualifying exam and not to any discriminatory intent on the officials who administered it, the constitutional standard of strict scrutiny, which applies to race discrimination cases, should not be used, and that the applicable principle for equal protection purposes in race discrimination cases should be the intent principle.

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This means that the Court has interpreted the Constitution to prohibit governmental actions taken with the purpose of discriminating against racial minorities. However, this interpretation does not prohibit governmental actions of discrimination that have a racially disparate impact against minorities but do not have any discriminatory purposes.4 Therefore, cases that have disparate impact but no discriminatory intent are subject to rational basis scrutiny (the governmental action is rationally related to a legitimate government purpose) rather than the higher constitutional standard of strict scrutiny (which requires that there be a compelling governmental purpose for the action, and that the government action is narrowly tailored to the purpose, and that said governmental action is the least restrictive means for achieving the purpose).

The Court has continued the doctrine in Griggs v. Duke Power Co., revising the intent definition to state that one is intentionally discriminating if one continues to use a practice or maintains a condition that disadvantages a minority group without being able to justify the rationality of the practice or condition.5 Furthermore, in Wards Cove Packing Co. v.

Antonio, the Court allowed the use of the effects test in subjective standard cases but stated statistical disparities in racial representation could not alone establish the plaintiff’s prima facie case. However, the stringency of the new proof requirements in the effects test did not really did not produce a difference in regards to the intent principle.

Although there are various arguments in favor of focusing on intent, the Court itself did not include a discussion of the policy reasons for its selection of the intent doctrine in its Court opinion.

The Court merely stated that application of the antidiscrimination principle to effects rather than intent was a legislative function and that a wide

Girardeau Spann is a professor at Georgetown Law School, and is the author of several books concerning race and the constitutional concept of equality.

Girardeau Spann, Race Against the Court: Supreme Court and Minorities in Contemporary America (New York: New York University Press, 1993), 38.

Alan Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine in Critical Race Theory, 39.

Williams College Law Journal

Emanuel McMiller range of legislative actions might potentially be invalidated by an effects principle.6 The problem with the principle of intent, in controlling the discrimination issue in a particular race discrimination case that alleges a violation of the 14th Amendment, is that a court applies the principle to the facts of the case, the terms in which the principle is too abstract to generate a direct result.7

“Criminality and poverty... have turned into codewords for race in a liberal, colorblind society.”

The central argument in favor of the intent doctrine is “that a prohibition on innocently motivated, neutral actions that simply happen to have a racially disparate impact would restrict the ability of governmental decision-makers to use precise and efficient classifications that are directly responsive to the merits of the regulatory problems with which they are confronted.”8 The concern is that evidence of intentional discrimination is often difficult or impossible to obtain, therefore allowing acts of intentional discrimination to be seen as acts of neutral policymaking. Additionally, the issue with the intent doctrine, and the reason the court should move to an effect doctrine, is that harmful effects are harmful regardless of the intent with which they are produced. While many are concerned that in adopting an effect doctrine, governmental decision-makers would have to explicitly consider race as a factor in formulating social policy,

thereby disregarding the race neutrality principle embedded in the nation’s antidiscrimination laws, it is imperative for us to embrace such a doctrine in order to end the system of discrimination and disparate impacts that exist in America, between whites and the minorities, particularly black and Latino minorities.

The Colorblind Legal System and Society Although many discuss affirmative action and voting rights as the main battleground in regards to race and the courts, the effect of colorblind legal rulings have had an impact on minorities equal to or greater than affirmative action and voting rights decisions. The problems associated with colorblindness greatly affect the rights of minorities.

As argued by Michelle Alexander9 in her new book The New Jim Crow, colorblindness has led to, for many Americans, a second era of Jim Crow. There have been widespread disparate impacts throughout the criminal justice system, as well as an unequal enforcement of the laws. Criminality and poverty, which have disparate impacts on minorities, especially as a result of the colorblind “policies” of the Courts, have turned into code-words for race in a liberal, colorblind society.

However, apart from these obvious reasons as to why the Court should reverse colorblindness, this system does not support supposed judicial and political liberal aims of why America adopted the colorblind doctrine in the first place, which was to create a more equal society. As Philip Mazzocco10 stated, “Colorblindness not only fails to remedy discrimination and racial inequity, it can actually make both problems worse...

Warren, Earl. “STATE OF SOUTH CAROLINA, Plaintiff, v. Nicholas DeB. KATZENBACH, Attorney General of the United States.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/383/301>.

7 Girardeau Spann, Race Against the Court: Supreme Court and Minorities in Contemporary America (New York: New York University Press, 1993), 60.

8 Girardeau Spann, Race Against the Court: Supreme Court and Minorities in Contemporary America (New York: New York University Press, 1993), 38.

9 Michelle Alexander is an attorney and a professor at Moritz College of Law and the Kirwan Institute for the Study of Race and Ethnicity at Ohio State University, with significant experience in the field of civil rights advocacy and litigation.

10 Philip Mazzocco is a Professor of Psychology at Ohio State University where he has conducted research on the factors that underlie racial attitudes, especially racial policy attitudes.

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The Supreme Court and The Legal (Color) Blind System Colorblindness causes racial bias to become almost rational once observers of inequity are deprived of the critical social context needed to understand the conditions they observe...Encouraging individuals and institutions to downplay the role of race and racism in the lives of the public will only impede the ability to respond to the needs of that public.”11 A colorblind society prevents the Courts from rooting out racism, thereby letting it grow rampant, so that the same system of Jim Crow, which the courts have previously tried to uproot, is allowed to grow unconsciously. The colorblind doctrine also greatly limits the number of cases that the court will remedy, let alone acknowledge in regards to racial discrimination.

Post-racial liberalism is inadequate for remedying persistent racial inequities.

Because those inequities are themselves too often the result of racial discrimination and race-specific injuries perpetrated by whites against people of color-and not, as post-racial liberalism insists, the result of race-neutral economic or cultural factors-applying “universal” solutions to said inequities will likely fail to fully ameliorate them.12 This is partially a product of the Court’s intent doctrine, but also part of America’s commitment to individual liberalism. The law’s denial of the existence of racial groups is based not only on the rejection of the ongoing presence of the past, but also on a basic tenet of liberalism—“that constitutional protections inhere in individuals, not groups.”13 Additionally, as stated by Charles Lawrence,14 the intent doctrine’s requirement for the assignment of individual responsibility

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for the existence of racial discrimination distorts our perceptions of the causes of discrimination, making us think that discrimination does not exist unless it was intended. Furthermore, it causes resistance to those arguing for affirmative action and other race-conscious remedies for past and continuing discrimination, because if there can be no discrimination without an identifiable criminal, then “innocent” individuals will resent the burden of remedying an injury for which the law says they are not responsible.15

“The law’s denial of the existence of racial groups is based not only on the rejection of the ongoing presence of the past, but also on a basic tenent of liberalism.”

The doctrine of colorblindness has affected society in all different areas, including criminal justice, poverty, education, housing, and employment, racism & discrimination, inability for recourse, and structural/institutional racism. For example, studies show that people of all colors use and sell illegal drugs at remarkably similar rates.16 Yet how can a formal race-neutral criminal justice system mange to round up, arrest, and imprison an extraordinary number of black and brown men, when people of color are actually no more likely to be guilty of drug crimes and many other offenses than whites?

The Court in the wake of Washington v. Davis has continued to use the intent doctrine to further colorblindness and subordinate minorities. In McClesky v. Kemp, the court ruled that racial bias in sentencing, even if shown through credible evidence

Tim Wise, Colorblind: The Rise of Post-Racial Politics and The Retreat From Racial Equity (San Francisco: City Lights Books, 2010) 18-19.

Tim Wise, Colorblind: The Rise of Post-Racial Politics and The Retreat From Racial Equity (San Francisco: City Lights Books, 2010) 17.

Cheryl I. Harris, Whiteness as Property, page 53.

Charles Lawrence is a Professor at the William S. Richardson School of Law in Hawaii, and is known for his prolific work in antidiscrimination law, equal protection, and critical race theory.

Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, 239.

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (New York: The New Press, 2012), 7.

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Emanuel McMiller could not be challenged under the 14th Amendment in the absence of clear evidence of conscious, discriminatory intent. This ruling has been expanded to apply not only to sentencing procedures but also to employment, jury selection, and prosecutorial discretion (Armstrong v. United States).

Colorblindness leads to an inadequate system for addressing and redressing discrimination, and also fosters discrimination structurally, societally, and individually.

Making the Case for a Remedy As stated earlier, the Supreme Court is responsible for finding a remedy to solve the current colorblind problem. First, this current system is the fault of the Supreme Court’s rulings and implementation of its intent doctrine. Second, only the Supreme Court has the power to structurally open the door to allow changes, due to both precedent (all lower courts must follow the established rulings of the Supreme Court), as well as the nature of colorblindness in the legal/political system. The Court through its role in interpreting the Constitution, and in setting the current constitutional and legal standards through precedent, is thus directly responsible for the trends it has set in society and in the political system in regards to colorblindness.

While there are numerous arguments as to what should be done in, both legally and politically, the first step involves the Court overturning the intent principle and focusing on the effects principle in order to make sure that injury regardless of intent can be redressed. In the same way that torts include negligence, gross negligence, and intent, the discrimination cases have should also have a similar ability to recognize intent, and non-intent with effect.

In addition, the Court must consider various secondary remedies. In A Critique of “Our Constitution is Color-Blind,” Neil Gotanda17 makes

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the case that (1) any revised approach to race and the Constitution must explicitly recognize that race is not a simple, unitary phenomenon, (2) that it must accommodate legitimate governmental efforts to address white racial privilege, and (3) that it must recognize the systemic nature of subordination in American society.

Tim Wise, an anti-racism activist and writer, in his book “Colorblind” advocates a path of illuminated individualism to lead to racial equality.

Illuminated individualism is essentially recognizing that we are made up of many identities, and that these identities matter.

“It means that we must resolve to consider race and the impact of racial identity on the lives of others and on ourselves. We must weave into our personal thinking and our institutional settings, practices, procedures and policies that take account of race and its meaning, and in recognition of that meaning, resolve to do everything possible to minimize the likelihood of discriminatory treatment.”18 Being a person of color in a nation where color has meant something from the beginning cannot and should not be seen as conferring no unique experiences or perspectives for those who lived with such a designation. Additionally, being white in a nation where whiteness has meant something from the beginning suggests a very different life trajectory than a person who is of another ethnicity.19 This path addresses concerns with liberalism, yet it does not go far enough to address or create a test for the courts when considering race.

Charles Lawrence III takes this further and proposes a cultural meaning test that would look to “the ‘cultural meaning’ of an alleged racial discriminatory act and states that this is the best way

Professor Neil Gotanda is a Professor at Western State College of Law where he teaches Constitutional Law, Equal Protection and Due Process, and the First Amendment. He is one of the foremost scholars on critical race theory. He also recently taught a course as a visiting professor at Williams College on Race and American Law in the Fall of 2013.

Tim Wise, Colorblind: The Rise of Post-Racial Politics and The Retreat From Racial Equity (San Francisco: City Lights Books, 2010), 157.

Tim Wise, Colorblind: The Rise of Post-Racial Politics and The Retreat From Racial Equity (San Francisco: City Lights Books, 2010), 156.

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The Supreme Court and The Legal (Color) Blind System to discover the unconscious racism of governmental actors. This test would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance.”20 This test would consist of two prongs. First, the Court would determine (by a preponderance of the evidence) if a significant portion of the population thinks of the government action in racial terms. This evidence would consist of analyzing governmental behavior by considering evidence regarding the historical and social context in which the decision was made and effectuated. Second, if the evidence was in favor, the Court would presume that socially shared, unconscious racial attitudes made evident by the action’s meaning had influenced the decisionmakers. In light of that presumption, the Court would then apply heightened scrutiny. This standard has the benefit of identifying only those cases where race unconsciously influences governmental action, and leaving untouched nonrace-dependent decisions that disproportionately burden blacks only because they are overrepresented as the decision’s targets.

Gotanda presents a third alternative of moving past colorblindness in comparing race to the Court’s stance on religion and the 1st Amendment.

The Court has rejected a “religion-blind” standard for governmental activity, while recognizing the importance of religious affiliation to many Americans without the diminishment or eradication of religion in American life as its goal. In comparison to the non-establishment and free exercise clauses, Gotanda argues that the government would not be able to establish racial subordination or white supremacy, nor would it be able to eradicate race.

Additionally, culture race, which incorporates all aspects of culture, community, and consciousness, would make possible a form of free exercise of the positive aspects of race, recognizing that black and white cultures are legitimate aspects of the American social fabric. Gotanda also argues that free exercise of race would allow open discussion and potential implementation of governmental remedies to address the legacy of discrimination.21 However, just like arguments regarding the separation of church

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and state, any problem should be addressed in its particular context without the compulsion to satisfy all aspects of racial subordination or respect for racial ethic culture.

“While Gotanda’s test allows for the free exercise of culture race and the non-establishment or diminishment of race, it doesn’t adequately address the historical race and the domination of one race over the other.”

Gotanda’s free exercise/non-establishment test and Lawrence’s cultural meaning test provide the best alternatives to the current system of colorblindness. I would argue, however, that Lawrence’s cultural meaning test provides the better option (at least for now) because it is not as based on culture race as the free exercise/non-establishment test. While Gotanda’s test allows for the free exercise of culture race, and the non establishment or diminishment of race, it doesn’t seem to adequately address the historical race and the domination of one race over the other, something that is not as apparent in religion cases. Lawrence’s test, on the other hand, has its own problems, especially in regard to determining what a significant portion of the population thinks. Would the Court get in the business of sending out surveys, and what portion of the population counts as significant? However, aside from these minor details, in comparison to the current system, and with no clearer alternatives, this is the best option, and allows the court to leave aside non-race dependent decisions.

Conclusion Colorblindness can only remedy the more extreme and shocking forms of injustice. It can do little about the common forms of racism that people

Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, 247.

Neil Gotanda, A Critique of “Our Constitution is Colorblind,” 67.

Williams College Law Journal

Emanuel McMiller of color confront every day and that account for much misery, alienation, and despair. As demonstrated by voting rights, affirmative action, and jury selection cases, racial classification has lost its connection to social reality. Colorblindness has allowed racist effects to persist with no one criticizing the system, because race is not acknowledged. It denies the prior context of historical domination and assumes that everyone has started at the same level, without recognizing the history of discrimination that existed and continues to exist. As stated by Cheryl Harris23 in “Whiteness as Property,” “The law masks what is chosen as natural; it obscures the consequences of social selection as inevitable. The result is that the distortions in social relations are immunized from truly effective intervention, because the existing inequities are obscured and rendered nearly invisible. The existing state of affairs is considered neutral and fair, however unequal and unjust it is in substance.”24

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Colorblindness prevents the legal system from considering the racial and structural divisions that persist in society: the segregated, unequal schools, the segregated, jobless ghettos, and the segregated public discourse.25 The Court by adopting American political liberal ideology mixed with American judicial intent doctrine has created our current system of mass incarceration, unequal application of the laws, continued economic and social caste, and disparate impacts in housing, education, and poverty. Only a reversal of the Court’s decision can have an overall effect on society. There are clear alternatives that the Court can take, and one can only hope that precedent changes in favor of disparate effect and cultural meaning sooner rather than later.

Cheryl Harris, is a Professor of Civil Rights and Civil Liberties at UCLA School of Law where she teaches Constitutional Law, Civil Rights, Employment Discrimination, Critical Race Theory and Race Conscious Remedies.

Cheryl I. Harris, Whiteness as Property, 69.

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (New York: The New Press, 2012), 241.

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From Katzenbach to Shelby County The Evolution of the Judicial Standard Applied to the Voting Rights Act of 1965

By Hayden Rooke-Ley Wellesley College

On February 3rd, 1870, the United States ratified the Fifteenth Amendment to the Constitution, which guaranteed that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”1 While such legal protection was certainly a sign of progress in racial equality, it did not, in practice, ensure the right to vote for African-Americans.

State legislatures, primarily in the South, found new ways to circumvent the Fifteenth Amendment and, thereby, to continue to disenfranchise blacks, largely through tactics such as poll taxes and literacy tests.

As seen with all equality struggles, racial prejudice is never overcome when legal protection is granted; oppressors find ways to impose racial subjugation that are not facially discriminatory but still have a disparate impact on the targeted group. Poll taxes and literary test were no different.

As the civil rights movement gained steam in the early 1960s, the fight for voting equality was paramount to achieving lasting suffrage. By 1965, such voting rights attempts had been met by an unrelenting opposition, often manifested through violent hate crimes. Efforts by votingrights activists – and their consequent murders and beatings – illuminated the discrimination faced by blacks in voting and thus the failure of the Fifteenth Amendment in securing that right. The tipping point came in early March of 1965 when

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peaceful protestors were brutally attacked by state troopers while marching across the Edmund Pettus Bridge in Selma, Alabama. In response, President Lyndon Johnson issued a call for strong voting rights legislation, much to the dismay of southern legislators who had been fervently resisting such laws. It did not take long for Congress to determine that enforcement of the Fifteenth Amendment had been insufficient in ameliorating voting discrimination. While the Justice Department frequently filed lawsuits against these discriminatory voting policies, it was simply overwhelmed. Even if the Attorney General won one lawsuit, the state would simply institute new discriminatory policies.2 Thus, Congress sought to draft a law that could preemptively end voting discrimination. On August 6th, President Johnson signed the Voting Rights Act (VRA) of 1965. Section 2 largely echoed language in the Fifteenth Amendment: No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.3 Section 5 of the Voting Rights Act establishes “preclearance,” maintaining that certain states or subdivisions must “clear” any voting legislation with the Attorney General or a three-judge Federal District Court in Washington, D. C., before it enacts such a “qualification, prerequisite, standard, practice, or

Documents in American History.” Fifteenth Amendment to the Constitution: Primary Documents of American History (Virtual Programs & Services, Library of Congress). N.p., n.d. Web. 17 Dec. 2013. <http://www.loc.gov/rr/program/bib/our docs/15thamendment.html>.

“The Voting Rights Act of 1965.” Civil Rights Division Home Page. N.p., n.d. Web. 18 Dec. 2013. <http://www.justice.gov/crt/ about/vot/intro/intro_b.php>.

“Transcript of Voting Rights Act (1965).” Welcome to OurDocuments.gov. N.p., n.d. Web. 17 Dec. 2013. <http://www.ourdocu ments.gov/doc.php?doc=100>. “

Williams College Law Journal

Hayden Rooke-Ley procedure” pertaining to voting rights.4 The states subjected to this preclearance are established in Section 4, which, under subsection b, provides two criteria that qualify states or subdivisions for Section 5 preclearance. Known as the “coverage formula” the state or subdivision must first have maintained a “test or device”5 on November 1, 1964, as determined by the Attorney General, and must have had either less than 50 percent of the voting-eligible population unregistered to vote or had less than 50 percent of the voting-eligible individuals vote in the 1964 presidential election. Subsection c defines “test or device” as prerequisites which (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.6 This research paper primarily examines the historical jurisprudence of the Voting Rights Act, from Katzenbach to Shelby County. Keen investigation will be focused on the principle of stare decisis to determine if the Court, in any of its holdings, disregarded precedent. Through this research, I will show that the decision in Shelby County, which was preceded by a strategic ruling in Northwest Austin Municipal Utility District No. 1 v. Holder, swayed significantly from the precedent set in all other cases involving the VRA and, more specifically, the “coverage formula” of Section 4(b) and its requirement of preclearance established in Section 5. In Shelby County, the Court does not blatantly reject the standard of rational basis review that had been demonstrably applied to all previous VRA cases, yet, in the process of concluding that the coverage formula is unconstitutional, the Court

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clearly invokes an applied heightened level of scrutiny never before seen in VRA cases.

Shortly after the Voting Rights Act was signed into law, the Supreme Court heard South Carolina v. Katzenbach (1966), in which North Carolina challenged many of the provisions in the Voting Rights Act, including the coverage formula in section 4(b). In writing for the Court’s majority, Chief Justice Earl Warren found the statute to be constitutional and established the appropriate “ground rules”: The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.7 By establishing “rational basis” as the appropriate standard of review, the Chief Justice set a standard of high deference to Congressional legislation and imposed a heavy burden on the challenger to prove that the legislation in question is “irrational.”

“By establishing ‘rational basis’ as the appropriate standard of review, the Chief Justice set a standard of high deference to Congressional legislation” Specific to the “coverage formula” of Section 4(b) of the VRA, Chief Justice Warren acknowledged the challenger’s argument that the statute was “awkwardly designed in a number of respects, and that it disregards various local conditions which

Ibid.

Ibid.

Ibid.

Warren, Earl. “STATE OF SOUTH CAROLINA, Plaintiff, v. Nicholas DeB. KATZENBACH, Attorney General of the United States.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/383/301>.

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From Katzenbach to Shelby County have nothing to do with racial discrimination”8 yet he concluded that, solely because these areas were “relevant to the problem of voting discrimination…

No more was required to justify the application to these areas of Congress’ express powers under the Fifteenth Amendment.”9 Warren was not concerned that the law was not “narrowly-tailored,” a requisite applied in cases with heightened scrutiny. He acknowledged that there were certain localities that had demonstrated racial discrimination in voting, but had not done so through “tests and devices” that were a prerequisite for preclearance. He noted that there were other sections of the law that were meant to strengthen voting rights laws throughout all of the states. More importantly, Congress had sought to target states with “tests and devices” (as one of the criteria), which were well within the parameters of its constitutional rational basis because “[l]egislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience.”10 By showing little concern for overbreadth – a component of review that is given heightened attention as the standard of review increases – Chief Justice Warren confirms rational basis as the appropriate standard of review. Because the VRA provides “for termination of special statutory coverage at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years,”11 he rejected any claim for unconstitutional overbreadth.

The special provisions of Section 5 of The Voting Rights Act were extended for another five years when the VRA was amended in 1970, thereby validating “the Supreme Court’s broad interpretation of the scope of Section 5.”12 While progress had been made since the VRA was passed, testimony and debate in Congress illuminated the work that needed to be

8 9 10 11 12

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done to address “gerrymandering, annexations, adoption of at-large elections, and other structural changes to prevent newly-registered black voters from effectively using the ballot.”13 Thus, more provisions were added to the VRA as amendments, three of which were challenged in 1970 in Oregon v.

Mitchell. First, a new provision in the amendments lowered the voting age from 21 to 18 in all state and federal elections; second, a provision extended, for five years, the ban on literacy tests throughout all areas of the country in which the ban had not already been applied in the original VRA; and finally, Oregon challenged a new provision that forbade states from disqualifying voters in vicepresidential and presidential elections who failed to meet certain residential requirement and that instituted national rules for absentee voting in such elections. In addressing the ban on literacy tests, the Court ruled that Congress could rationally have determined that these provisions were appropriate methods of attacking the perpetuation of earlier, purposeful racial discrimination, regardless of whether the practices they prohibited were discriminatory only in effect (opinion of Black, J.).14 Here, again, the Court treated the entirety of the VRA with sweeping deference, applying little scrutiny to the amendments that were made in 1970.

In 1973, the law was again reviewed in Georgia v. United States (1973), when the Attorney General sought to enjoin the state of Georgia from executing its 1972 district reapportionment law following the 1970 census, given that Georgia had not “precleared” it with the federal government. The opinion was

Ibid.

Ibid.

Ibid.

Ibid “The Voting Rights Act of 1965.” Civil Rights Division Home Page. N.p., n.d. Web. 18 Dec. 2013. <http://www.justice.gov/crt/ about/vot/intro/intro_b.php>.

Ibid Warren, Earl. “STATE OF SOUTH CAROLINA, Plaintiff, v. Nicholas DeB. KATZENBACH, Attorney General of the United States.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/383/301>.

Williams College Law Journal

Hayden Rooke-Ley delivered by Justice Stewart, holding that the 1972 reapportionment in the Georgia legislature had the strong potential to be racially discriminatory and, thus, was unconstitutional. Prior to this suit, the state of Georgia had brought two reapportionment plans to the attorney general for preclearance review, both of which he rejected. As such, the state of Georgia also challenged these ruling in this case. In assessing this claim, Justice Potter Stewart reiterates the regulation to the law, stating that the [B]urden of proof is on the submitting party, and that the Attorney General will refrain from objecting only if his review of the material submitted satisfies him that the proposed change does not have a racially discriminatory purpose or effect.15 Justice Stewart then explains that the Attorney General was within his power to decide that Georgia had not proved that its statute was free of discriminatory purpose or effect so long as this was properly articulated to the state in due time.

The state of Georgia objected to the manner in which the ruling was administered by the Attorney General, asserting that it did not prove that Georgia’s statute was discriminatory. But, acknowledging the burden of proof, Justice Stewart establishes that the Attorney General acted well within his power simply because he “notified the State with sufficient clarity that it had not sustained its burden of proving that the proposed changes were free of a racially discriminatory effect.”16 In further testament to the constitutional authority given to the Attorney General in the law, Justice Stewart concluded that the Court did not need to find that the Attorney General’s mode of administering his ruling was the only possible option “in order to find it a reasonable

15

16 17 18

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means of administering his § 5 obligation.”17 The use of the phrase “reasonable means” is common rational basis review, implying an easy standard to overcome.

Thus, in the next major decision rendered after Katzenbach, the Court clearly upheld the standard of rational basis review. Justice Stewart insisted that the burden of proof was on the challenger, not on the Attorney General. Such a burden cannot be overlooked with regard to the standard of review that is applied. Fundamental to rational basis review is the Court’s deference to challenged laws, rendering them difficult to overturn.

“Fundamental to rational basis review is the Court’s deference to challenged laws, rendering them difficult to overturn.”

The next major case that examined the Constitutionality of Sections 4 and 5 of the VRA was City of Rome v. United States in which the city challenged the constitutionally of the VRA after its proposed voting legislation was rejected during preclearance by the Attorney General. Again, the Supreme Court established “Congress’ broad power to enforce the Civil War Amendments”18 and applied due deference. Justice Thurgood Marshall, writing for the Court, reiterated the ruling in Katzenbach regarding the ban on literacy tests in order to demonstrate that facially neutral tests can have a discriminatory effect and that this ban, in particular, was an “appropriate method of enforcing the Fifteenth Amendment” Marshall ruled that Congress has the authority under Section 2 of the Fifteenth Amendment19 to prohibit legislation

Stewart, Potter. “GEORGIA Et Al., Appellants, v. UNITED STATES.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/411/526>.

Ibid.

Ibid.

Marshall, Thurgood. “CITY OF ROME Et Al., Appellants, v. UNITED STATES Et Al.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/446/156>.

“15th Amendment.” LII. N.p., n.d. Web. 18 Dec. 2013. <http://www.law.cornell.edu/constitution/amendmentxv>. According to Section 2 of the Fifteenth Amendment, “The Congress shall have power to enforce this article by appropriate legislation.”

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From Katzenbach to Shelby County made by states that “perpetuates the effects of past discrimination”20 even if it does not directly violate Section 1 of the 15th Amendment.21 Finally, Justice Marshall concluded: [W]e hold that the Act’s ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting. Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.22 Evidently, the Court, in this case, upheld the standard of rational basis review in determining the constitutionality of the VRA. In 1999, the Court heard Lopez v. Monterey County, in which the Supreme Court overruled a district court decision that allowed California to change voting laws without preclearance in a county that fell within the coverage formula of Section 4(b) of the VRA. The Court insisted that the state acted illegally in that it allowed for voting laws to be changed in a county that was subject to the preclearance requirement, even if the state was not. Quite simply, the state had acted in violation of the federal powers granted in the VRA, and specifically those powers granted in Sections 5 and 4(b). The Court essentially reaffirmed the prior

20

21

22

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decision made by the Court regarding the statute’s constitutionality, saying: In short, the Voting Rights Act, by its nature, intrudes on state sovereignty.

The Fifteenth Amendment permits this intrusion, however, and our holding today adds nothing of constitutional moment to the burdens that the Act imposes.23 In 2009, the Court heard Northwest Austin Municipal Utility District No. 1 v. Holder, which involved an appeal for a “bailout” of the preclearance requirement and, if denied, a direct challenge to the constitutionality of the VRA. The Court ruled that the utility district was ineligible for the bailout because it was not a county, parish or subunit that registered voters. In addition, the Court upheld the constitutionality of the Section 5 of the Voting Right Act which, in 2006, had been extended for another 25 years, as part of additional amendments.

However, the Court appeared reluctant to grant this extension of the Section 5, expressing discomfort with the federal government’s demand for preclearance for qualified states and counties.

Chief Justice John Roberts, writing for the Court’s majority, established that the VRA had undoubtedly helped the plight of blacks in voting; that is, because of the VRA, voting conditions had “unquestionable improved”24 since the time of previous VRA Court rulings, therefore raising new questions about the necessity voting rights protection. Ultimately, the Court ruled that the “Act imposes current burdens and must be justified by current needs” and that “past success alone, however, is not adequate justification

Marshall, Thurgood. “CITY OF ROME Et Al., Appellants, v. UNITED STATES Et Al.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/446/156>.

“Fifteenth Amendment.” LII. N.p., n.d. Web. 18 Dec. 2013. <http://www.law.cornell.edu/constitution/amendmentxv>. According to Section 1 of the Fifteenth Amendment, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Marshall, Thurgood. “CITY OF ROME Et Al., Appellants, v. UNITED STATES Et Al.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supremecourt/text/446/156>.

O’Connor, Sandra Day. “LOPEZ v. MONTEREY COUNTY.” LII. N.p., n.d. Web. 20 Dec. 2013. <http://www.law.cornell.edu/ supremecourt/text/97-1396>. “Primary Roberts, John. “NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.NO v. HOLDER.” NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.NOv.HOLDER. N.p., 29 Apr. 2009. Web. 20 Dec. 2013. <http://www.law.cornell.edu/supct/html/08322.ZO.html>.

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Hayden Rooke-Ley to retain the preclearance requirements.”25 Justice Roberts continued to express his doubts about the constitutionality of the VRA, invoking new language to suggest a departure from precedent.

He explained that the VRA violated “equal sovereignty”26 a doctrine well acknowledged by the courts in previous rulings on the VRA, but that has been deemed less important than carrying out the mandate of the 15th Amendment and the VRA. Justice Roberts stated that the statute’s “disparate geographic coverage” must be “sufficiently related to the problem that it targets.”27

“Justice Roberts continued to express his doubts about the constitutionality of the VRA, invoking new language to suggest a departure from precedent.”

Semantically, this is Justice Robert’s first hint of a departure from past precedent of rational basis review; the use of the phrase “sufficiently-related”, as opposed to that of “rationally- or reasonably-related” (as seen in previous Court decisions), represents a heightened standard of review; it is a word more often used in cases involving intermediate or strict scrutiny. While subtle, this is an unprovoked shift in the standard of review that was clearly established in since Katzenbach in 1966. Later in his opinion, Justice Roberts opts not to apply a standard of review for the case. He notes that the “parties do not agree on the standard to apply in deciding whether…Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements” but that the Court “need not resolve it” because the “Act’s preclearance requirements and its coverage formula raise serious

25 26 27 28 29 30 31

constitutional questions under either test.”28 Thus, the Court conspicuously disregarded the standard of review that had been used in every single VRA case, instead intimating that the level of scrutiny is somehow irrelevant or debatable. Although the Court proceeded to grant the constitutionally of the extension of the preclearance requirement in Section 5 of the VRA, it warned that such passage may be the last.

The ruling in Northwest Austin provided the foundation for the landmark decision in Shelby County v. Holder in 2013. Justice Roberts, again writing the opinion, reiterated what was said in Northwest Austin – that black voter turnout has improved so drastically that the necessity of the preclearance requisite may not outweigh the federal intrusion of state’s rights and equal sovereignty that it imposes. Not surprisingly, Justice Roberts uses his language from Northwest Austin – specifically, that “current burdens and must be justified by current needs” and that “disparate geographic coverage is sufficiently related to the problem that it targets” – and states that “these basic principles guide our review of the question before us.”29 As aforementioned, these “basic principles” were, in part, a unique invention

by Justice Roberts, given that they sway from the firm establishment of rational basis review seen in all other VRA cases. Nonetheless, he concluded that “the Voting Rights Act sharply departs from these basic principles”30 thereby rendering the converge formula in Section 4(b) unconstitutional, and, in effect, nullifying Section 5.

Later in his opinion, Justice Roberts explains how the converge formula VRA has not been updated to meet the current conditions of voting rights and the increased turnout of blacks: “Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way.”31 Here, again, Justice Roberts subtly, though not insignificantly, hints to a heightened level of

Ibid Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

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From Katzenbach to Shelby County scrutiny that was never before applied to these cases. The use of the phrase “narrowed the scope” is quite similar in diction and meaning to “narrowlytailored,” which is a term that defines cases of heightened scrutiny in that they must tightly fit their stated goals, not affecting individuals beyond the intended scope of the legislation. This requirement, however, is not present in rational-basis review, again signifying the low level of scrutiny and high deference to the democratic Congress. But Roberts uses the phrase as if it were to be applied to this case, as if the standard of scrutiny were suddenly something other than rational basis review.

Chief Justice Roberts proceeds to challenge the coverage formula today, insisting that it is “based on decades-old data and eradicated practices” that do not represent the progress in racial voting equality that exists today: “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula.”32 While reasonable minds can differ as to the rationality of the coverage formula today, as opposed to 1965, Justice Roberts again seems to change the rules of the game. By invoking the word “compelling”, Roberts is again using language almost exclusively reserved for cases involving heightened scrutiny.

“Compelling” is used in the context of strict scrutiny equal protection cases when the burden is on the government to prove that there is a “compelling state interest” in instituting a discriminatory law.

However, such a standard does not apply to rational basis review; no “compelling” evidence needs to be provided by the government because it does not bear the burden of proof.

32

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In sum, after careful analysis of the Supreme Court rulings about the Voting Rights Act of 1965 and its amendments, it appears that the reversal of Section 4(b) in Shelby County represents a brazen dismissal of rational basis review that had all but been solidified in the cases leading up Northwest Austin and Shelby County, both of which were heard

by Chief Justice Roberts. Instead, Justice Roberts used diction far more indicative of intermediate or strict scrutiny review as if those standards had always been applied, thereby justifying his overruling of Congress in deciding that the “coverage formula” was unconstitutional. Seemingly content with current-day race relations, Justice Roberts struck a major blow to the progress that had been made in realizing racial equality. One can only hope that this decision is soon reversed (likely only after congress formulates a new coverage formula) before states and counties institute more facially neutral voting legislation that effectively disenfranchises the black vote.

Ibid.

Williams College Law Journal

Interview with David Caplan Copyright Lawyer at Kilpatrick Townsend Interview by Robin Park, Transcribed by Hye Rin Lee Williams College

Do you think the current laws to protect copyrights are adequate?

In many ways, the current law works. Case law has developed the law, so the law is pretty clear in most areas. But, there are a lot of areas that I think the existing copyright law did not anticipate, for example, the ease of sharing and passing around the copyright information. Also, there is often a theory, an underpinning in copyright law, that people who are infringing are making money off of it. But, that is not always the case now. Even people not making money can really damage the value of a copyrighted work. I think another area where copyright law is missing a little bit is the aspect of control. A lot of countries have “artist rights” laws, and I think copyright law in the modern age needs a little bit of that to counteract all the users’ ability to take works and do different things with them.

Essentially, I think copyright law should allow a copyright owners to present works the way they want them presented. At least some level of control.

Of course, the other side of “artist rights” is fair use, and trying to balance the two, is very difficult. Some would argue that the current fair use law addresses that. I know that there are a lot of cases that I have dealt with where my clients were putting together a detailed and extensive strategy about how a movie was going to be distributed and the steps in that strategic plan start months before the movie is actually even made. During that time, people are working hard to come up with specific plans on how to market the films. The marketing campaigns are actually, in my mind, part of the movie now.

These marketing efforts are not really going to be protected by copyright. But early copying and

distribution of elements from the films damage the value of underlying work that is being marketed.

A good example of a detailed marketing plan like this is the Avengers film. It started off years and years before as they had a little bit of information in each separate Marvel movie which led to the eventual Avengers movie. This marketing was all part of enhancing the value of the overall work. We deal with disruptions to this planning all the time where marketing departments of film companies really are vital to the distribution of movies and the success of movies. They have detailed campaigns of how they want to market the movies. With the Internet, people are grabbing pictures off of sets when the movie is being made or pulling details from extras or others working on the set of the movies. The early distribution of these details interfere with the marketing plans and we spend a lot of time trying to protect the ability of the motion picture companies to present the movies the way they want to present them.

To what extent can a copyright owner currently protect his/her own rights to privacy?

There is the right of publicity, which is the right to your own use of your name, image, and voice in commercial speech. This right of publicity has always been, in the historical sense, part of privacy law. Essentially, the law provides that only you are able to use your own name and image commercially.

With respect to an ability of a copyright owner to protect his or her own work, there are two real answers to that. There is the legal answer and there is the practical answer. The legal answer is that law provides that you own the copyright the second you make the work. You can distribute it and stop anybody else from misusing it. You still have to deal

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Interview with David Caplan with the fair use arguments and you have to make sure you can show that you actually own the rights in the work. To answer your question, I’m going to assume a copyright owner does have the evidence he or she created a song and that he or she did not take it from somewhere else. The copyright owner does not have to actually register the work to own it. You have to register to get certain remedies under the copyright law. Ultimately, the legal answer is that there are notice and take down procedures, and various liability theories, which can enable a copyright owner to stop infringing activity if somebody is distributing a song.

The practical answer is that many copyright owners, who are concerned with protecting their works are hiring companies that search the Internet to make sure the works are not being distributed without authorization. We have done this for film companies and television companies – working with technology companies that search for potential infringements. Separately, we have some our own employees who search the Internet for infringements to make sure that our clients’ works are not taken.

Then, we do the process of sending the letters and taking the infringements down, and suing if we need to. Unfortunately, the real way of preventing your work from being copied is by not distributing it at all. The reality is that anybody who creates a work that is successful is going to have that work copied.

Every film will get copied. It is just the way it works now. Every song will get copied. The analysis for a copyright owner is how much you do to protect it and what uses you go after. Not whether you can completely protect it.

Do you think further advancements in technology will make it harder for copyright holders to protect their works in the future?

It is a constant chase. I have no personal knowledge of this as this is not my business, but I believe that one of the reasons we see changes in standar technology for delivering entertainment (i.e. DVD to BluRay), beyond simple quality enhancements, is that industries are trying to get past the infringers.

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For example, film companies had to deal with the fact that infringers were making copies of video cassettes, so they made a better quality copy, a DVD, and placed technology around the copy so the infringers, in theory, couldn’t copy it. Of course, the infringers then descrambled the copyright protection on the DVD. And then we moved on to BluRay. In the end though, I think technological copyright protection, using a technology to prevent copyright, by itself, is almost an impossible task. Certainly in the commercial software world, I do not think people are really trying to figure out a technological way to completely prevent a person from being able to copy the software. In the motion picture world as well, people copy DVDs and BluRays. Of course, owners will still try to stop those who are copying illegally. But, entertainment companies are now working to make it easier for people to get access to legitimate electronic copies, not harder.

On the flipside, technology is always going to make it easier for people who want to skirt the law to access copyrighted works, as they are always going to find a way to copy. However, those of us on the copyright owners’ side will always try to stop it. We will never stop trying to halt the really obvious and nefarious ways people are copying. For example, movie theaters – we want to stop camcording and our clients are always going to try to stop it. They will do everything they can to stop it. But it happens.

Everybody figures out a way to get around it, even though we are going to constantly try to stop it and our clients are going to put all their efforts into stopping it. People will always try to circumvent attempts to protect against copyright infringement, and some will succeed in part because it is an international world and a very small world. So, we can have all the security we want in the big cities in the U.S. where we do the premieres, but once the movie is released in Russia, all you need is that one theater where somebody gets in with the camcorder and records the movie. Then it is out. And then somebody else records the audio and they mix the audio with English in the Russian copy of the video and you have a copy of the movie. And, separate from camcording, movies are made by using a lot

Williams College Law Journal

Robin Park of separate service providers along the way. There are all these places in the chain of the creation and distribution of a film where there is potential for somebody taking the film and copying it. So you do everything you can along that creation and distribution chain to secure it, but there will always be people who work hard to go around it. And I do not think we will ever stop it even though we will try. We refer it to as kind of like a “whack a mole” game where the goal in copyright protection against bootlegging, is to make it harder to have copies of equal value as the real thing, and to try to bury the infringement away from traditional commercial distribution as much as we can. We do not want you to be able to find it alongside legitimate film listings or BluRays on search engines, or on youtube, so we are going to try and push it down and away are far as we can. I think that will continue to happen. You get more and more cooperation from the companies that are legitimate in pushing the stuff away, but you won’t stop it.

What is the most interesting case that you have dealt with in this area?

I have so many interesting cases that I have dealt with. I love copyright law and trademark law. I love movies and music. So trying to pinpoint one case is very difficult as there is a new case every month.

And there is new technology coming out constantly, and we have to consider how copyright applies to the technology.

For a specific example: I was contacted by a group of instructors in the martial art Krav Maga, which is an Israeli form of martial arts. A company claimed they owned the rights to the name “Krav Maga”, that it was the company’s trademark, and that that they were the only ones allowed to call their services “Krav Maga.” I worked with a group of teachers who said, “what else are we going to call our services?” It is Krav Maga, it is what we teach.

So I defended a trademark infringement case and our response to the judge was “no, we are calling our services by its name - it is Krav Maga, a generic name for the service.” We won on summary judgment and

got the judge to declare that Krav Maga was just the name of the service, and that anybody could use it. As a result of that decision, our clients were essentially allowed to keep their business. That was a very fulfilling and interesting case.

Another interesting case was where a client had created a lotto style game and they were accused by another company of stealing it. The other company claimed that they had the same lotto game and that our client’s game was based on theirs. This would essentially shut down my client’s business if they lost because they could not maintain the website. We were able to get that case thrown out and allowed the client to actually keep the business running, which was very fulfilling.

What is your advice for students who are looking to go into this field like copyright law, trademark, and privacy?

The way I got into this field was completely accidental. I was trying to do entertainment law, as I like movies and music, so I thought I was going to work on entertainment contracts. I thought I was going to represent musicians, actors, and movie companies because I thought these sounded interesting. And I did a little bit of that and I did not enjoy it as much as I’d anticipated. For me, copyright law and trademark law were really intellectually challenging and I really liked the issues. I know the law very well now as I have been working in this field for 20 years, but every week, there is new technology and new things that come out that you have to apply law to and figure out what the answer is, what advice to give to your client about it, how to protect the work if it is an infringement issue or a creation issue, and how to help design the work so it does not infringe upon others. All of these are really fascinating things. So how would I get into it if I were starting out now? Do whatever you can to work in the area. Law firms and companies are looking for people to hit the ground running and who can assist them in protecting and representing their clients. You want people who are really interested in it, who are smart, who have creative ideas, and who

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Interview with David Caplan have experience. A lot of people want to do it, so the more experience you have in doing it, the better off you are. It is really nice that there is the Williams College Law Society because the more you can say that I started this in college, thought about privacy and copyright in college, went off to law school, and clerked at this law firm, the more likely you are able to move into it. And seek out the cases in the areas that interest you. Do what you can to show and make it clear to everyone that you work with at a company or law firm that this is what I want to do. I want to do copyright law and I will work extra hard on this copyright case. It was very much different than when I started this as I lucked my way in since it was a much smaller field. But, there is always room for smart and hard working people who are really dedicated to the field.

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Should the Patriot Act be Extended?

An Analysis of Safety Versus Liberty in the Age of Terrorism

By Rebecca Acree Williams College

Introduction The September 11, 2001 attacks on the World Trade Center in New York City shook the United States to its core. Terrorism, once a far-removed concept belonging strictly to less stable nations, became a very real, very close danger. America, thought to be invincible, had been attacked on its own soil. Fear and confusion dominated. The public needed answers, and they needed them immediately. Congress was quick to respond, and did so in the form of the USA Patriot Act. The Patriot Act was introduced as a thorough response to the dangers the nation faced. It gave the government greater means to conduct investigative operations, thus allowing it to combat terrorism more efficiently and more effectively. Generally, the reaction was positive, both publicly and politically, with supporters lauding the Act’s strong stance against terrorism. Dissenters, however, expressed concern over the Act’s infringement of civil liberties and its expansion of government power. In the time since its passage, the debate over its relative value has intensified, with dissent spreading. As its expiration date nears, the time has come to reevaluate. Should the Act be retired, as its critics argue, because the threat it poses to civil liberties outweighs its effectiveness as an anti-terrorism tool? Or should it be extended, because it is a necessary part of the “War on Terror” and is in the best interest of public safety? This article will examine both sides of the issue, and will explore the future of the Patriot Act in America.

Overview The USA Patriot Act was signed into law on October 26, 2001, around six weeks after 1 2

the 9/11 attacks. The Act—which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism—is split into ten sections.

Each of these focuses on a different aspect of the process of investigating and prosecuting terrorism, such as the allocation of federal funds (Title I), surveillance procedures (Title II), border security (Title IV), and criminal law (Title VIII). Most controversial, perhaps, is Title V, which entails the removal of certain obstacles to investigation, something achieved through the use of National Security Letters (NSLs). NSLs are orders issued to businesses and organizations requiring them to turn over any and all records and data pertaining to targeted individuals, and are inclusive of a gag order. No probable cause or other such judicial permission is required to issue an NSL.1, 2

“As [the Patriot Act’s] expiration date nears, the time has come to reevaluate.”

In 2011, President Obama signed the Patriot Sunsets Extension Act, which extended two specific practices allowed by Title II of the original Act, and one by the 2004 Intelligence Reform and Terrorism Prevention Act. The three practices given the extension, which lasts until 2015, are found in Sections 206, 215, and 6001, respectively. Section 206 of the Patriot Act authorizes law enforcement agencies to use “roving wiretaps,” the provisions for which do not name the individual and do not specify any particular method of communication.

That is, the device being wiretapped may be changed throughout the course of the investigation without the need to obtain further permission. Section 215 of the Patriot Act permits the seizure of documents

U.S. Justice Department. “The USA Patriot Act: Preserving Life and Liberty.” 2005.

Doyle, Charles. “National Security Letters in Foreign Intelligence Investigations.” Congressional Research Service. 2014.

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Should the Patriot Act be Extended? and other tangible sources of information related to a terrorism investigation. While court approval is required, no probable cause or reasonable suspicion is necessary. Section 6001 of the Intelligence Reform and Terrorism Prevention Act allows for the surveillance of individuals, or “lone wolves,” suspected of terrorist activities but not tied to any terrorist organization. Authorization is granted by secret intelligence courts and is not considered public information.3 President Obama’s decision to extend these provisions was made amid much controversy. Now, as the expiration date draws closer, the debate is once again intensifying.

“Many of [the Patriot Act’s] critics believe that it was passed opportunistically with its creators capitalizing on the government’s desire to act quickly.”

Criticism The controversy surrounding the Patriot Act begins with its original passage. Many of its critics believe that it was passed opportunistically, with its creators capitalizing on the government’s desire to act quickly. This, they argue, led to an inexplicable and impermissible disregard for Americans’ rights to privacy. Successful campaigns were led to prevent the extension of many particularly intrusive aspects of the Act, including the use of NSLs. As a result, in the 2011 extension, President Obama only renewed three specific sections. Nevertheless, these sections continue to elicit much criticism.4 Section 206, also known as the “roving wiretap provision,” allows law enforcement officials to conduct covert electronic surveillance with minimal restrictions. Officials are not required to name the individual being surveyed, and are 3 4 5 6

allowed to use any means necessary, without having to obtain new permission for changes in the communication device. Even if the target changes computers, phones, or email address, the authorization for surveillance moves with the individual. So long as it is asserted that the surveillance is being conducted with the express purpose of gathering foreign intelligence, a Foreign Intelligence Surveillance Act, or FISA, order can be obtained. The ACLU, arguably the chief critic of the Patriot Act, argues that this is far too much power with far too few restrictions.5 Governmental authority to conduct searches is limited by the Fourth Amendment, which requires warrants and prohibits unreasonable search and seizure. Section 206 is in violation of these requirements, and therefore is unconstitutional. The government is not mandated to demonstrate probable cause in the traditional manner; it must simply be asserted that the target is likely a foreign power or an agent of a foreign power. Requests for FISA orders are directed through a special, secret intelligence court, not a federal judge, making judicial scrutiny difficult. Further, the orders may be withheld permanently from their targets, making attempts at suppression virtually impossible. Disclosure of the orders can be claimed to endanger national security, which prevents civilians from having any access.

According to James Dempsey from the Center for Democracy in Technology, in essence Section 206 comprises warrantless searches and seizures.6 Section 215, which authorizes law enforcement agencies to seize any tangible object as part of an investigation of terrorism, expands the powers of the FBI. Section 215 FISA orders are accompanied by gag orders, meaning that the target of surveillance may not be made aware of the situation. These orders may be applied to U.S. citizens as well as non-citizens. The FBI is also not required to show any probable cause or reasonable grounds for searches and seizures, nor in this instance is there a requirement to prove the possibility of the target being a foreign power or an agent of a foreign

Liu, Edward C. “Amendments to FISA Extended to 2015.” Congressional Research Service. 2011.

Electronic Privacy Information Center. “History of the Patriot Act.” 2013.

The American Civil Liberties Union. “Reform the Patriot Act: Section 215.” 2012.

Dempsey, James. “Why Sections 209, 210, and 220 Should Be Modified.” The American Bar Association. 2003.

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Rebecca Acree power. Section 215 is most often applied as it pertains to library and internet research records.

Opponents argue that it allows the government to spy on individuals based solely on their exercise of their First Amendment rights. That is, the FBI can choose to conduct surveillance on someone simply because he or she checked out a book on Osama bin Laden at the library. This constitutes another violation of the Fourth Amendment requirement of warrants in search and seizures, and, according to the ACLU, is an intolerable breach of privacy that is rewarded with minimal payoff.7 Section 6001, also known as the “lone wolf provision,” allows the government to obtain secret FISA orders to against individuals who are suspected of terrorism but lack ties to any recognized terrorist organization.8 Previously, it was required that officials demonstrate reasonable grounds to suspect the target’s involvement with terrorist groups or in terrorist activities. Section 6001, however, removes that condition, and allows individuals wholly unassociated to be targets of surveillance. Again, this allows law enforcement agencies to dodge the usual requirements for acquiring warrants in searches and seizures. Further, because the process for obtaining these orders is conducted through secret intelligence courts, no information on them can be publicly obtained. It cannot be known, then, how or when the government is applying the provisions of Section 6001. This threatens the safety and privacy of everyday citizens. Because no definitive proof of terrorist tendencies or ties is needed to obtain an order, targeted individuals may be subject to unfair profiling. This is an expansion of the authority of the government to unprecedented levels.9 Justification Despite the criticism regarding the infringement of civil liberties, the Patriot Act still has its supporters. These supporters argue that the potential sacrifice of privacy is appropriate when done in the interest of the safety of the nation.

The “War on Terror” is ongoing, and therefore

the authorization to combat terrorism must be ongoing. Supporters of the Act continue to fight for the extension of the three sections past 2015.

“There have been no reported abuses of this law either as it applies to terrorism or as it applies to other crimes, despite continuous investigation...”

According to its supporters, in all the controversy regarding Section 206, the “roving wiretap provision,” opponents of the Act fail to recognize that the roving wiretaps have been used

by United States law enforcement since 1986. In its earliest form, of course, targets did not have access to computers or email, but switching landlines or payphones produced the same effect. If this law is applicable to everyday criminals, it should be just as applicable to terrorists, for after all, terrorism is a crime. There have been no reported abuses of this law either as it applies to terrorism or as it applies to other crimes, despite continuous investigation by the Department of Justice.10 Further, to require federal agents to obtain express permission for each and every switch of communication device — something that is likely to be extremely frequent in the modern age—is to prevent them from doing their job efficiently and effectively. While the agents are stuck jumping through hoops, the target is able to get a step ahead. Terrorists switch identities and devices with such frequency that to keep up with them is already difficult enough as it is. Naming them specifically on the order, then, is oftentimes impossible, not to mention a great security risk. Thus, bogging down law enforcement with unnecessary red tape endangers the safety of the nation and its citizens. Turning the focus of the FISA order on only the unnamed target both aligns the law with criminal procedures as well as allows

The American Civil Liberties Union. “Reform the Patriot Act: Section 215.” 2012.

Liu, Edward C. “Amendments to FISA Extended to 2015.” Congressional Research Service. 2011.

9 The American Civil Liberties Union. “Reclaiming Patriotism: A Call to Reconsider the Patriot Act.” 2009.

10 The Heritage Foundation. “After Bin Laden.” 2011.

7 8

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Should the Patriot Act be Extended? investigative procedures to advance as technology does. This, in turn, advances national security.11 The claims of opponents regarding Section 215 being in violation of the Fourth Amendment are debased by supporters as unfounded and alarmist.

This section authorizes the FBI to obtain materials from a third party regarding the target’s potential involvement in terrorist activities. However, this can only be done if express approval is obtained from a federal court; without such approval, no steps can be taken. The FBI must provide some reason to use the order, for they cannot be handed out without any explanation. Further, while it is argued that the privacy of targets is at risk, the Constitution does not and cannot protect information once it has been disclosed to a third party. Section 215 specifically applies to the involvement of a third party. To refer to the oft-cited example of library records, the library, as a public institution, is not in any way obligated or even permitted to withhold information it has been given, that is, records of what books have been checked out by whom. Such information is public, and therefore not protected

by Constitutional privacy rights. Further, although gag orders are put in place, the seizing of any records may be challenged in court, and the records are subject to subpoena for viewing by the jury. The secrecy involved in the process extends only to that which is needed to protect national security, which must be the priority.12

“...only with considerable proof can the FISA order be given, so the possibility of racial profiling is minimized.”

Section 6001, the “lone wolf provision,” is decried as dangerously secretive and prejudicial in

11 12 13 14

nature. However, the standard is not without limits.

The target must be a foreign power or an agent of a foreign power. There must be probable cause that the target is engaging or attempting to engage in terrorist activities, and a specific definition of such terrorism is provided. Thus, only with considerable proof can the FISA order be given, so the possibility of racial profiling is minimized. Further, previous laws required evidence that the target is somehow connected with major terrorist organizations before surveillance can be conducted. The existence of “lone wolves,” however, makes this an impossible standard to maintain. Not all terrorists are connected to an organization, as has been evidenced by numerous attacks over the past decade, most notably those by Nidal Hasan at Fort Hood in 2010 and by Dzhokhar and Tamerlan Tsarnaev at the Boston Marathon in 2013. These two attacks alone resulted in the deaths of thirteen and the injuries of hundreds of others. Clearly, lone wolves are serious threats to national security. Therefore, the government must be authorized to address this threat in the most efficient and most effective way, in order to ensure the safety of its citizens.13, 14 Conclusion Despite the fact that as a nation, the United States has been dealing with terrorism for decades, it has yet to agree upon the best method for combating it. The Patriot Act is the most definitive measure taken to date, but its value has been hotly debated for years, and in all likelihood will continue to be for the remainder of its use. The Act is an extremely complicated issue, and both its critics and supporters offer extremely valid arguments. It does pose serious threats to the civil liberties of American citizens, if abused. It gives the government an unprecedented amount of power and establishes an unprecedented lack of judicial scrutiny. This should by no means be taken lightly.

However, far more than personal liberty is at stake.

Lawmakers must consider the safety and wellbeing of the nation as a whole. The Patriot Act strengthens

Rosenzweig, Paul. “Section 206: Roving Surveillance Authority Under FISA.” The American Bar Association. 2005.

Mac Donald, Heather. “In Defense of the Patriot Act.” The Manhattan Institute for Policy Research. 2003.

Woods, Michael J. “Lone Wolf: Targeting the Loosely-Affiliated Terrorist.” The American Bar Association. 2005.

Marshall, Leslie. “Send the Fort Hood Shooter to Prison and Throw Away the Key.” US News. 2013.

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Rebecca Acree the ability government to protect the nation from acts of terrorism. It allows the government to ensure that the events of 9/11 are never repeated, and to that end, it has been successful. There have been numerous attacks over the years, but many more have been prevented. Still, there is no indication

that the onslaught will cease anytime soon, and for this reason, despite the risks to civil liberties, the safety of the United States must be prioritized above all. Thus, the Patriot Act should be kept in place, for without security, there can be no liberty.

â&#x20AC;&#x153;Still, there is no indication that the onslaught [of attacks] will cease anytime soon, and for this reason, despite the risks to civil liberties, the safety of the United States must be prioritized above all.â&#x20AC;?

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Dazed and Confuzed The Federal Government’s Attempts to Legitimate Drug Policy Through Collective Interest Arguments

By Sam Green Williams College

Abstract Since the passage of the Controlled Substances Act in 1970, United States drug policy has been decisively within the domain of the Federal Government. The legislation vested two agencies— the Food and Drug Administration (FDA) and the newly created Drug Enforcement Administration (DEA)—with the authority to shape future drug regulation and enforce drug control statutes. Over the last four decades, these agencies have worked in tandem to advance increasingly conservative drug policy agendas while also growing in size and power, firmly asserting both their authority within the federal arena and the authority of the Federal Government over states and individuals in the realm of drug policy. Though these assertions of authority have not gone unchecked or unquestioned, the agencies remain firmly in charge and as powerful as ever.

In light of this reality, this paper seeks to examine how the U.S. Federal Government has legitimated and maintained its drug policies.

More specifically, it addresses how drug-regulatory agencies have presented and defended claims of a compelling government interest in controlling the production, distribution, and consumption of drugs since 1970. It arrives at the conclusion that the agencies’ compelling interest arguments have been equivocal, inconsistent, and logically flawed.

Finally, it identifies bureaucratic self-interest and interest group pressures as the primary reasons for the perpetuation of conservative drug policies.

1 2 3 4

Background Though drug policy would seem a purely domestic issue, the framework for American drug law is in fact the product of an international treaty. Signed in 1961, the Single Convention on Narcotic Drugs binds signatory nations to enact and enforce laws criminalizing the “cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs.”1 In order to prioritize enforcement, many of the Convention’s 183 signatories, including the United States, have adopted drug scheduling schemes similar to those set out in the treaty. However, individual nations are free to allow “the production, manufacture, export, import, distribution of, trade in, use and possession of drugs” for “medical and scientific purposes”2 and to establish systems of “treatment, education, aftercare, rehabilitation and social reintegration” in lieu of or in addition to conviction and punishment.3 The United States, interpreting the document conservatively, took the Single Convention on Narcotic Drugs as an opportunity to consolidate its domestic drug control regime. Citing the nation’s treaty obligations, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, which scheduled drugs analogously to the Single Convention and, through Title II (known as the Controlled Substances Act), established a mechanism through which to regulate and enforce drug laws at a federal level.4 The authority to schedule and reschedule substances came to be shared by the Food and Drug Administration (currently an agency

“Single Convention on Narcotic Drugs, 1961,” (New York: United Nations, 1975), 36.

Ibid., Article 4.

Ibid., Article 36 Controlled Substances Act, U.S. Code 21, Chapter 13, (1970), § 801 et seq.

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Sam Green of the Department of Health and Human Services) and the Drug Enforcement Administration, which was established in 1973 under the Department of Justice. However, the DEA must defer to the scientific and medical advice provided by the FDA through its parent department—that is, if the FDA says a drug should not be scheduled, the DEA may not schedule it.5 As the agencies’ names suggest, the DEA is charged mainly with law enforcement while the FDA regulates medical drugs and food products.

“...it seems that the Federal Government places its compelling interest arguments in a frame of public safety, health, and international security. ” These agencies, along with their founding legislation, may be nominally linked to the Single Convention on Narcotic Drugs, but is this international treaty per se sufficient to justify U.S. federal drug policy? Despite the Convention’s explicit prohibition of certain activities, its implications for personal recreational drug use are ambiguous. In 1972, the National Commission on Marihuana and Drug Abuse—better known as the Shafer Commission—released a report advocating marijuana legislation reform. Under its recommendations, “Possession of marijuana for personal use… [and] casual distribution of small amounts of marijuana for no remuneration, or insignificant remuneration not involving profit would no longer be an offense.”6 Though the Federal Government took no action to adopt the Commission’s recommendations, the report suggests that U.S. drug policy did not have to take the hardline

5 6 7

8 9

10

path it took. Lacking both a clear international mandate and unanimous support among federal officials, the Federal Government would have to legitimate its policies by demonstrating a compelling government interest in prohibiting drug use.

Prevailing Compelling Interest Arguments The Office of National Drug Control Policy (ONDCP), a subunit of the Executive Office of the President, bases its policies on the core belief that “drug use is a major public health threat” and a major cause of violent crime.7 On its website, the Office focuses on marijuana more than any other drug, claiming it is dangerous, addictive, and threatening to the nation’s youth, while maintaining that the drug has no FDA-accepted medical use.8 Meanwhile, the Drug Enforcement Administration’s website touts the agency’s role in bringing down “the world’s most dangerous and powerful drug lords,” helping fight terrorism, and “[keeping] city streets safe from drug gangs.”9 The DEA also describes itself as “a modern and sophisticated organization of men and women dedicated to keeping our nation safe from drug trafficking and drug abuse.”10 Through the agencies’ websites, it seems that the Federal Government places its compelling interest arguments in a frame of public safety, health, and international security.

The courts also seem to have adopted this logic. In the 2005 Supreme Court case Gonzales v.

Raich, two chronically ill California residents sued the Federal Government after DEA agents seized the marijuana plants they had been growing in their homes for personal medical use. The majority opinion, issued by Justice Stevens, finds that the Federal Government has the authority to prohibit such activity, based on abundant precedent (most prominently Wickard v. Filburn), because “leaving home-consumed marijuana outside federal control

Controlled Substances Act, U.S. Code 21, Chapter 13, (1970), § 801.

The Report of the National Commission on Marihuana and Drug Abuse, (Washington: U.S. Government Printing Office, 1972), §5.

“Policy and Research,” Office of National Drug Control Policy, accessed May 17, 2013, http://www.whitehouse.gov/ondcp/policy-and-research “Marijuana,” Office of National Drug Control Policy, accessed May 17, 2013, http://www.whitehouse.gov/ondcp/marijuana “Inside DEA,” Just Think Twice, Drug Enforcement Administration, accessed May 17, 2013, http://www.justthinktwice.com/content/inside_dea.html Ibid.

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Dazed and Confused would… affect price and market conditions” in the illegal market for marijuana.11 The argument, similar to the one employed in Wickard, is that “the high demand in the interstate market will draw [homegrown] marijuana into that market,” while in turn, “the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety”—that is, “production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”12 Stevens’s opinion implies that the government has a compelling interest in prohibiting personal marijuana use—even when the marijuana is grown and consumed by an individual for prescribed medical use—because any legitimized existence of cannabis plants will fuel the illegal drug trade, which the state views as a threat to public safety and security.

“Can an individual really ‘distribute’ a good to him- or herself ?”

In a concurring opinion, Justice Scalia shies away from interstate commerce arguments, focusing instead on the “necessary and proper” clause. He writes, “The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself ‘substantially affect’ interstate commerce.”13 The “comprehensive regulation” to which he refers is the Controlled Substances Act, which he later mentions by name.

Stevens argues that it is entirely within Congress’s constitutional authority to regulate interstate drug markets—which, as the opinion points out, even the respondents in the Raich case do not dispute14— 11 12 13 14 15 16

and considers a ban on personal medical possession as necessary and proper for such regulation. Scalia acknowledges that the activities in question are neither interstate nor commercial, but says this is “immaterial” because even “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market.”15 Yet his argument makes frequent reference to the respondents’ marijuana as “controlled substances manufactured and distributed intrastate,” and sees them as participants in the “market for ‘medical’ marijuana.”16 Though Scalia essentially makes the same compelling interest argument as Stevens does, his concurring opinion speaks more of a compelling interest to regulate Schedule I substances on a national level while failing to address any interest the government may have in prohibiting activities like the respondents’. Can an individual really “distribute” a good to him- or herself? Can one person’s private possession be considered part of a “market”? It seems a dubious definitional interpretation. Perhaps Scalia believes that cancer patients will be unable to resist the temptation to engage in the market by becoming drug dealers— this could legitimate banning personal use. Or else, perhaps he believes that they would turn to the illegal market if they were unable to obtain a prescription.

But in this case, the government would still have no interest in banning medical use, because legalized homegrown marijuana would hurt the illegal market by taking away potential customers.

Changes and Inconsistencies in the Government’s Narrative The questionable logic in Gonzales v. Raich is a symptom of broader inconsistencies in state claims of a compelling interest in regulating personal drug use, particularly with regard to marijuana. Though Scalia takes for granted the legitimacy of federal marijuana prohibition, it is important to examine the foundations of that legitimacy.

Gonzalez v. Raich, 545 U.S. 1 (2005), 19.

Gonzalez v. Raich, 545 U.S. 1 (2005), 19.

Ibid., 37.

Ibid., 15.

Ibid., 40.

Ibid., 40-41.

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Sam Green Evolution of the DEA’s Marijuana Policies In its infancy, the DEA did not view marijuana use as a major threat to public safety and security.

Rather, the agency viewed marijuana use as a “minor drug issue, the control of which was rightly a state issue,” going so far as to suggest decriminalization as the proper policy route.17 In these days, from the DEA’s formation in 1973 until at least the early 1980s, the agency regularly published a publicrelations magazine called Drug Enforcement, which was intended to “legitimate the agency’s existence and activities.”18 But in the 157 full-length articles the magazine published from 1973 to 1980, only 16 so much as mentioned marijuana; of those, only two were critical of its use.19 However, these two critical articles’ claims were presented explicitly as controversial and unsubstantiated in forewords by drug enforcement officials.20

“Moreover, marijuana regulation was framed not just as a public health issue, but a moral issue.”

Meanwhile, the director of the White House Office on Drug Abuse wrote in 1977 that marijuana is “‘not physically addicting and… probably does not pose an immediate substantial health hazard to the individual.’”21 In his official capacity, he writes, “‘It is the position of the Carter Administration that it should be left to the individual states to determine whether they wish to decriminalize their laws for the possession of small amounts of

17

18

19 20 21 22 23 24 25 26

27

marihuana for personal use and that the Federal Government should not seek in any way to influence that decision.’”22 Indeed, based on the DEA’s own publications and based on statements by federal drug enforcement personnel, the federal government saw no compelling interest in enforcing the prohibition of personal marijuana use.

But by 1980, the DEA had changed its tone on marijuana. Drug Enforcement magazine had begun to publish articles condemning marijuana use as “perhaps the most serious drug problem facing our nation.”23 Though the articles in question cite new and convincing evidence as the impetus of the agency’s policy change, Koski and Eckberg point out that none of the information presented had changed since 1977.24 Instead, “evidence is distorted in the direction of supporting the new policy, and… speculation is offered as evidence.”25 Moreover, marijuana regulation was framed not just as a public health issue, but a moral issue, “[dividing] the world into opposing forces of good and evil.”26 One particularly dramatic passage tells an anecdote about children using marijuana at a party: “‘Dusk descended. Groups of children gathered in dark corners. Several of them vomited… Strange kids came and went. Finally, the [parents] recognized that something very unusual was going on and disbanded the party. When they went outside to clean up, they found incontrovertible evidence that the kids had been smoking marihuana.’”27 Here, marijuana use is presented as a seedy activity—one that takes place in the shadows of the night among “strange” and mischievous kids, corrupting their morals and harming their health. By discarding its previously

Patricia R. Koski and Donald Lee Eckberg, “Bureaucratic Legitimation: Marihuana and the Drug Enforcement Administration,” Sociological Focus 16.4 (1983): 256.

Patricia R. Koski and Donald Lee Eckberg, “Bureaucratic Legitimation: Marihuana and the Drug Enforcement Administration,” Sociological Focus 16.4 (1983): 257.

Ibid., 257-258.

Ibid., 259.

Ibid., 260.

Ibid.

Ibid.

Ibid., 261.

Ibid.

Patricia R. Koski and Donald Lee Eckberg, “Bureaucratic Legitimation: Marihuana and the Drug Enforcement Administration,” Sociological Focus 16.4 (1983): 266.

Ibid.

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Dazed and Confused hands-off approach to marijuana policy and framing the issue in a dramatic and moralistic light, the DEA set the stage for a credible compelling interest argument: marijuana is a danger to American health and values, so it must be stopped. This argument has endured since 1980.

Compelling Interest and Medical Necessity Having classified marijuana as a Schedule I substance and fabricated a compelling interest argument as to why it ought to be prohibited, the Federal Government leaves no opportunity for even medical uses of the drug. In U.S. v. Oakland Cannabis Buyers’ Cooperative, a non-profit medical marijuana dispensary, operating legitimately under California law, contended that patients are entitled a medical exemption to the Controlled Substances Act.28 In fact, the Court of Appeals for the Ninth Circuit expressed its concern that the District Court for Northern California “should have weighed the ‘public interest’ and considered factors such as the serious harm in depriving patients of marijuana,”29 indicating that some federal officials may not have seen the government as having a compelling interest in prohibiting medical marijuana. However, the Supreme Court held “that medical necessity is not a defense to manufacturing and distributing marijuana,”30 “even when the patient is ‘seriously ill’ and lacks alternative avenues for relief.”31 But, as Peter Currie points out, “The Court of Appeals for the D.C. Circuit [has] recognized a constitutional substantive due process right ‘to access potentially life-sustaining medication where there are no alternative government-approved treatment

28 29 30 31 32

33 34 35 36

37 38

options.’”32 Currie uses the D.C. Circuit’s opinion as an insight into whether the Federal Government can legitimately claim a compelling interest in preventing “mentally competent, terminally ill patients” from using certain drugs.”33 He argues that the government can only prove that an interest in regulation is “compelling” if it can provide “meaningful evidence” that the regulation will achieve prescribed public health and safety benefits.34 In the scenario Currie discusses—the FDA’s regulation of unapproved prescription drugs— the two main compelling interest arguments are the regulatory paternalism argument (protecting individual patients from the potentially harmful effects that may arise from taking the drugs) and the harm-to-others argument (circumventing the approval process may undermine the clinical trial system).35 The former argument falls apart, he argues, when dealing with terminally ill patients: since no approved drugs can treat their illnesses, FDA regulations do not benefit them, and since they may not live long enough to see a treatment approved, they are unlikely to benefit from the regulations in the future.36 Hence, “It follows that the basic premise of paternalistic regulation – that restrictions on liberty can be justified when in an individual’s best interests – fails entirely in this context.”37 On the other hand, Currie offers empirical evidence that unregulated access may indeed corrupt incentive structures for clinical trials.38 However, once drugs are past “Phase I,” i.e. deemed safe for human consumption, no compelling interest argument merits their being denied to terminally-ill patients because the critical human trials have been

U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001), 486-487.

U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001), 488.

Ibid., 494.

Ibid., 503.

Peter M. Currie, “Restricting Access to Unapproved Drugs: A Compelling Government Interest,” Journal of Law and Health 20.2 (2007): 310.

Ibid.

Ibid.

Ibid., 316 Peter M. Currie, “Restricting Access to Unapproved Drugs: A Compelling Government Interest,” Journal of Law and Health 20.2 (2007): 317.

Ibid.

Ibid., 321

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Sam Green completed.39 So, since the FDA has likely not been running Phase I clinical trials to determine the safety of human marijuana consumption continuously since 1980, the Federal Government cannot claim a compelling interest in denying the drug to terminally ill patients seeking medically-approved relief. The same argument can be applied to any drug that is not in the clinical trial process and for which no substitute is in the clinical trial process.

“It seems the government believes that its compelling interest supersedes medical necessity, states’ rights, and individual liberties...”

Compelling Interest and Religious Freedom Interestingly, while the Federal Government finds a compelling interest to withhold medical exemptions to drug regulations, it has been willing to grant spiritual exemptions. In 2005, the Supreme Court decided Gonzales v. O Centro Espírita Beneficente União do Vegetal (UDV), in which the respondents represented a New Mexico branch of the Brazilian “Christian Spiritist sect” in which communion is received in the form of hoasca, a “sacramental tea” made from two Amazonian plants containing Schedule I hallucinogens.40 The UDV, whose shipments of hoasca had been confiscated by Customs, faced prosecution under the Controlled Substances Act.41 The government argued that the use of hoasca should not be allowed due to the potential for health risks to the user and “diversion” of hoasca to non-church members, going so far as to argue that the church’s hoasca use would lead to a “general rise in the use of illicit hallucinogens in general.”42

39 40 41 42 43 44 45

In a unanimous decision, the Court rejected the arguments presented on behalf of the government.

The argument agreed with the previous District Court decision, which “concluded that the evidence on health risks was ‘in equipoise,’ and similarly that the evidence on diversion was ‘virtually balanced.’”43 Given these findings, “the court reasoned that the Government had failed to demonstrate a compelling interest in justifying what it acknowledged was a substantial burden on the UDV’s sincere religious exercise.”44 The Court issued an injunction allowing the UDV to continue importing and consuming hoasca, citing as precedent the injunction allowing all Native Americans to consume peyote.45 An Evaluation of Compelling Interest Arguments What does the Court’s decision imply for other drugs and other groups who might consume them?

The Federal Government, through law enforcement agencies, Congress, and the Supreme Court, has determined that it has a compelling interest to ban or otherwise regulate the use of all potentially dangerous drugs on the basis of public safety and security. It seems the government believes that its compelling interest supersedes medical necessity, states’ rights, and individual liberties (of possessors not participating in drug markets who consume drugs in their homes), though the logic of many of these compelling interest claims has been shown to be questionable. The one circumstance in which the government has shown some leniency is in the protection of religious freedoms. But if spiritual use is acceptable, how will the state determine what is a legitimate faith? For example, could anyone attend UDV services? And if the respondents in Gonzales v.

Raich were adamant about using marijuana, could they establish their own church, using marijuana as a form of communion? By allowing drug use for spiritual benefit but not medical benefit, the Federal Government calls into question the very

Ibid., 323.

Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), 425.

Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), 425.

Ibid., 426.

Ibid.

Ibid., 427.

Ibid., 433

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Dazed and Confused legitimacy of any compelling interest argument for the prohibition of drug use.

Federal agencies have generally legitimated their compelling interest claims by appealing to public health and safety. But in order to assess the claims’ validity, it is necessary to evaluate the effect of the policies in question on public health and safety. A report commissioned by the British House of Commons studied and quantified the dangers of twenty drugs (including tobacco and alcohol), ranking their potential for physical harm, dependence, and social harm on a continuous scale from one to three, the latter being the most harmful.

The report’s findings cast further doubt on the U.S. Federal Government’s compelling interest claims: marijuana, LSD, and ecstasy (among other drugs) were found to be less harmful than alcohol in each of the three categories, yet alcohol is legal.46 In fact, alcohol was second only to heroin for causing the most social harm.47 When ranked by psychologists and independent experts on a scale from most to least dangerous, alcohol was, on average, third (behind heroin and cocaine), tobacco tenth, and ecstasy, cannabis, and LSD eleventh, twelfth, and thirteenth, respectively.48 So while the government’s compelling interest arguments may apply to heroin and cocaine, they logically ought to apply to alcohol and tobacco if they are to apply to hallucinogens like marijuana. Since in reality the arguments are not thus applied, the basis of the compelling interest becomes questionable.

Even if the government’s motives are taken as legitimate, the outcomes of drug enforcement policies do not seem to meet the supposed objectives.

If the goal of drug prohibition is to protect public safety and security, it would be expected that the policies would reduce drug-related violent crime rates and decrease drug consumption by increasing the financial and social costs of distributing, possessing, and using drugs. However, these

46

47 48 49

50

outcomes have not been achieved. Rather, there is evidence that drug prohibition increases both crime rates and drug consumption.

The DEA’s claim that strict drug enforcement effectively combats drug-related crime is illogical.

The drug gangs the DEA seeks to eliminate are fueled by the illegality of the drugs they distribute.

If the manufacture, sale, and possession of drugs were legal, there would be little reason for cartels to smuggle drugs into and around the country or for prospective drug users to engage in unregulated and potentially dangerous drug deals. Hence, there is no black market trade in alcohol or tobacco because they are legal drugs. In addition, by making drugs harder to access and more expensive, “prohibition creates motivation to steal and rob” in order to satisfy demand.49

“The drug gangs the DEA seeks to eliminate are fueled by the illegality of the drugs they distrubute.”

The effects of alcohol prohibition under the Eighteenth Amendment offer evidence of the causal effect of illegality on crime. As part of the National Prohibition Law Hearings, Judge Alfred J. Talley, then-head of New York City’s highest criminal court, testified before the Senate on the effects of prohibition on crime. He stated, “Crime has increased in such amazing proportion that it has become the dominant consideration of most of the state and municipal governments of the nation,” despite the fact that the Eighteenth Amendment promised to decrease crime “to a minimum.”50 He described the United States as “the most lawless country on the face of the earth” and asserted that “prohibition is one of the largest contributing

“Drug Classification: Making a Hash of It?,” House of Commons Science and Technology Committee, (London: The Stationery Office Limited, 2006), Ev115.

Ibid., Ev114.

Ibid., Ev115.

Stephen B. Duke, “Drug Prohibition: An Unnatural Disaster,” Yale Law School Legal Scholarship Repository, (New Haven: Yale Law \ School, 1995), 575-576.

Alfred J. Talley, Testimony to the Subcommittee of the Committee on the Judiciary, United States Senate, (Washington, 1926), 143.

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Sam Green factors to that disgraceful condition.”51 Because alcohol prohibition caused an increase in crime rates, the Federal Government cannot legitimately argue that enforced drug prohibition will mitigate the prevalence of crime. In fact, violent crime rates have almost doubled since Richard Nixon ramped up drug enforcement efforts in 1973, a relationship which Steven Duke describes as “not coincidental…

The drug war causes crime.”52 Moreover, tough drug enforcement policies do not decrease drug use. Jonathan P. Caulkins of Carnegie Mellon University developed a mathematical model to examine the effects of drug policy on consumption. He concludes that the Federal Government’s “‘zero-tolerance’ policy” toward drug possession does not minimize consumption53—in fact, such policies “may actually encourage controlled users to consume more.”54 While some regulation likely does reduce drug consumption in general, as Steven Duke concedes, “The consumption of harmful drugs is almost certainly increased [by prohibition]. Consumers of black market drugs…are induced by prohibition to buy and consume stronger, more addictive drugs than would be the case in a legalized state.”55 Duke’s argument implies that federal drug policies have had a negative effect on public health by increasing the use of harmful drugs.

Causes of and Motives for the Government’s Arguments It has been shown that the government’s claims of compelling interest in controlling drug use have been inconsistent and equivocal. Further, 51 52

53

54 55

56

57 58 59 60

evidence has suggested that federal drug policies have not accomplished the objectives articulated in the prevailing compelling interest arguments.

Why, then, does the government continue to pursue conservative drug policies? And why have compelling interest narratives developed in the way they have?

Koski and Eckberg describe Drug Enforcement magazine as “bureaucratic propaganda,” because its purpose was to “legitimate the [DEA’s] existence.”56 This necessarily implies “that manipulation is undertaken in order to achieve legitimation.”57 Since the DEA’s attitudinal shift on marijuana policy was made especially clear through distorted articles in the magazine, it is reasonable to suspect that the change in narrative served the agency’s interests in some way. Before 1980,58 the DEA’s primary focus was on heroin use, the use of which was declining sharply as of 1980. Because “the need for heroin control had declined, the DEA might be looking for new targets to legitimate its continued existence.”59 Meanwhile, marijuana seemed the perfect target because of its widespread use compared to other drugs, which is “important because social control agencies may employ rhetoric regarding the high rate of deviance in order to legitimate their existence.”60 The DEA’s choice to emphasize marijuana prohibition enforcement in 1980 suggests that the policy shift was a ploy to maintain the agency’s funding and relevance rather than an effort to act in the interest of the government or the public.

In 1980, the DEA was not the only part of the Carter Administration worried about survival.

In the final years of the 1970s, popular thought in

Ibid.

Stephen B. Duke, “Drug Prohibition: An Unnatural Disaster,” Yale Law School Legal Scholarship Repository, (New Haven: Yale Law School, 1995), 574-575.

Jonathan P. Caulkins, “Zero-Tolerance Policies: Do They Inhibit or Stimulate Illicit Drug Consumption?,” Management Science 39.4 (1993): 473.

Ibid., 458.

Stephen B. Duke, “Drug Prohibition: An Unnatural Disaster,” Yale Law School Legal Scholarship Repository, (New Haven: Yale Law School, 1995), 598.

Patricia R. Koski and Donald Lee Eckberg, “Bureaucratic Legitimation: Marihuana and the Drug Enforcement Administration,” Sociological Focus 16.4 (1983): 257.

Ibid.

Ibid., 262 Ibid.

Patricia R. Koski and Donald Lee Eckberg, “Bureaucratic Legitimation: Marihuana and the Drug Enforcement Administration,” Sociological Focus 16.4 (1983): 262.

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Dazed and Confused the United States began to grow more conservative, which was troubling for the liberal administration.

Conservative interest groups that were “aligned against the permissiveness of modern culture” became increasingly prominent, advocating against such things as abortion and homosexuality in favor of “traditional values.”61 Because of the nation’s attitudinal shift, “President Carter entered 1980 facing a tough election fight against a Republican opponent, Ronald Reagan, who apparently was gaining popularity for his hard line against permissiveness.”62 Given this political situation, adopting stricter anti-marijuana policies would have been in the political interest of the Carter Administration as a whole.

Conclusions When Congress passed the Controlled Substances Act in 1970, it claimed for the Federal Government the exclusive authority to categorize, regulate, and prohibit the use of any drug. While the government has often pointed to its treaty obligations under the Single Convention on Narcotic Drugs as justification for its drug policies, the report published in 1972 by the National Commission on Marihuana and Drug Abuse implies that the treaty is ambiguous and allows signatory governments to shape domestic drug policy. Hence, federal drug agencies and the Supreme Court have had to carve out arguments articulating the government’s compelling interest in maintaining and enforcing its drug policies.

But their efforts to do so have been inconsistent over time, equivocal in application, and questionable in logical validity. For example, courts have expressed that terminally-ill patients have the right to medications for which there is no approved alternative, yet they have denied access to medically prescribed marijuana even when patients grow and consume the drug at home without participating in any drug market or distributing the drug to

61 62 63

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anyone else. At the same time, the Supreme Court has found no compelling interest in prohibiting the spiritual use of certain drugs precisely because they are consumed within a confined group with little possibility of diversion and used for a purpose the Court deems legitimate. Moreover, empirical evidence casts doubt on the Federal Government’s claim that drug enforcement is necessary to protect public health and safety. Rather, it seems that current policies foster higher crime rates and encourage more dangerous patterns of drug use.

“...it seems that current policies foster higher crime rates and encourage more dangerous patterns of drug use.”

Drug agencies’ efforts to legitimate their existence and interest groups’ pressures on political actors have caused the Federal Government to fabricate questionable compelling interest arguments with regard to drug regulation. But if these factors are the impetus for policy change, it seems that the government’s narrative may soon shift again. As of the 2012 election cycle, seventeen states had legalized medical marijuana, fifteen had decriminalized cannabis possession, and two had made marijuana legal for recreational use.63 Given that many of these laws—including the Washington’s and Colorado’s full legalization—were enacted by ballot measures, they offer evidence that public opinion may be moving away from hardline drug policies.

In addition, the ONDCP’s website has an entire page dedicated to chronicling the dangers of methamphetamine use. Since the only other drug to receive full-page treatment is marijuana, it seems that drug enforcement agencies may have

Ibid.

Ibid.

“Marijuana Legalization on the Ballot,” Huffington Post. November 7, 2012, accessed May 17, 2013, http://www.huffingtonpost.com/2012/11/06/marijuana-legalization-results_n_2074168.html.

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Sam Green already found the next big target they can exploit to legitimate their existence. The Office’s 2013 National Drug Control Strategy also deemphasizes moral arguments in favor of public health: “Science has shown that drug addiction is not a moral failing but rather a disease of the brain that can be prevented and treated.”64 Though the strategy offers no indication that policies will be changed, it shows that the government has shifted its narrative from one of morality to one of science, likely because public morals are changing.

Though it is unclear which policy path the government has a compelling interest to take, it

seems that federal drug policies have been as much a product of bureaucratic and political self-interest as concern for the public good. Because the interests of political actors and the scope of feasible policy options change over time, the Federal Government has been unable to maintain a clear and consistent articulation of its compelling interest in regulating drugs. As is the case with much federal policy, drug regulation will likely remain subject to piecewise changes imposed by Congress, the courts, bureaucracies, and interest groups.

“Because the interests of political actors and the scope of feasible policy options over time, the Federal Government has been unable to maintain a clear and consistent articulation of its compelling interest in regulating drugs.”

64

“2013 National Drug Control Strategy,” Office of National Drug Control Policy, accessed May 17, 2013, http://www.whitehouse.gov/ondcp/national-drug-control-strategy

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Foreign Policy Foreign to the Constitution

By Becky Tseytkin Williams College

Justice Robert H. Jackson noted that there was a dire “poverty of really useful and unambiguous authority applicable to concrete problems of executive power,”1 highlighting the difficulty of determining the extent of the President’s powers under Article II. Despite its efforts to set the boundaries of Presidential power, the Supreme Court has failed to safeguard against tyrannical Executive rule. Primarily with respect to foreign policy, the Court has granted the President virtually unlimited power, both explicitly and implicitly. It has interpreted Presidential power broadly, claiming that the President’s authority comes from a source outside of the Constitution and effectively elevating him above Constitutional guarantees. Additionally, the Court has given Congress the authority to grant the President unlimited power, paving the way for the two political branches to reinforce each other’s tyrannical actions. Consequently, Jackson’s fear of a “poverty of unambiguous authority” has resulted in both the Court and Congress granting nearly unrestricted authority to the President, transforming the poverty of information on executive power into excessive wealth.

In Youngstown Sheet & Tube Co. v. Sawyer, in 1952, the Court rejected the argument that “presidential power should be implied from the aggregate of his powers under the Constitution.”2 Though Article II assigns the President the role of Commander in Chief of the Armed Forces, the Court decided that this power did not expand to the regulation of all activities tangentially related to

1 2 3 4

military operations. As the Court described, “even though ‘theater of war’ [is] an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief… has the ultimate power…to take possession of private property.”3 Rather than holding that the ever-expanding “theater” or war—the areas in which the President has authority—encompassed industry and local production, the Court restricted the President’s power and held that he could not unilaterally take possession of the steel mills, no matter how integral the production of steel was to the war effort. This opinion reflects the Court’s reluctance to interpret the President’s powers as broadly as it had interpreted Congress’ during the late 1930s and 1940s. Whereas the Court had expanded the definition of “interstate commerce” so dramatically that Congress was able to regulate the agriculture of a local farmer who did not even intend to sell it on the interstate market, the Court was not as willing to make the president’s Article II powers so elastic. Instead, it strictly limited the concept of “theater of war,” denying the President the kind of sweeping control that it had granted Congress in a parallel set of cases. This opinion is particularly telling because it was written in the face of dire emergency and the threat of war. In contrast, during the Great Depression, after Roosevelt’s court-packing plan, the Court upheld far-reaching, regulatory Congressional legislation that sought to mitigate the Depression. The New Deal cases thus reveal a very different response to the threat of national emergency. In Youngstown, the Court explicitly rejected such hasty rulings, saying that “the emergency did not create power.”4 According

Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen Publishers, 2006), 375.

Ibid., 320.

Ibid., 320.

Ibid., 322.

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Becky Tseytkin to the Court, Article II powers cannot be expanded merely on the basis of a national emergency: the restrictions imposed by the Constitution must be adhered to in all circumstances. Consequently, in this time period, the cases that addressed Executive power diverged from the cases that addressed Congressional power, revealing a different kind of textual analysis for Executive powers—one that was less expansive, and one that expressed deeper fears of tyranny.

The Court’s approach in Youngstown differs dramatically from its approach in Hamdi v. Rumsfeld, in 2004, in which it interpreted the President’s power as broadly as possible and granted him unrestricted command over foreign policy. In Youngstown, the Court had restricted the concept of “the theater of war,” ruling that it did not encompass domestic production. In contrast, when the Court ruled on Hamdi, it expanded the President’s supremacy in the “theater of war” to include the detention of American citizens, on American soil, with barely any rights accorded to them. Concluding that the “capture, detention, and trial of unlawful combatants… are important incidents of war,”5 the Court ruled that the President has the authority to detain. Even taking into account the limited due process that Justice Sandra Day O’Connor proposed, the term “trial” is a hollow one, but there is yet another problem with the Court’s claim. The production of weapons is also an “important incident of war,” but President Truman was not permitted to unilaterally take over the steel mills. The key difference between these cases is that in Hamdi, the Court authorized the President to use all “necessary and appropriate force.” However, the Court’s interpretation of the AUMF—the Authorization for Use of Military Force—is informed by its broad understanding of war and Presidential power. By interpreting the AUMF as an authorization to detain, even though detention occurs outside of the war zone and after an individual is captured, the Court expanded the definition of war, and consequently expanded the President’s power.

This analysis is reminiscent of the Court’s

5

assessment of Congressional power with respect to the “necessary and proper” clause, in which it gave Congress wide latitude to determine the policies that were best suited to achieving its ends. Though there are parallels between the increasing broadness with which the Court has interpreted Congressional power and Executive power, the Court should have exercised far more restraint in cases that addressed Executive power. It is far riskier to grant vague and far-reaching power to the Executive than it is to grant similar power to Congress. There is more transparency when Congress passes laws, and laws can be repealed as quickly as they were enacted. However, as has been revealed in the past decade, much of the Executive’s power is exercised in secret. The Court’s broad interpretation of the President’s role is not, in reality, comparable to its broad interpretation of Congress’s, because the license to do what is “necessary and appropriate” is much more dangerous and unpredictable in the Executive’s hands.

“It is far riskier to grant vague and far-reaching power to the Executive than it is to grant similar power to Congress.”

If one examines cases like Nixon v. Fitzgerald (1982) and Clinton v. Jones (1997), it would seem that we do not have a tyrannical Executive branch. These cases revolve around domestic policy, revealing the Court’s insistence that the President’s realm of power in domestic matter is subordinate to Constitutional guarantees. Youngstown is an example of the Court’s efforts to separate domestic policy from foreign policy; the Court was unwilling to allow the President’s broad foreign policy powers to intersect with domestic production, and it emphatically separated the two. With respect to cases exclusively dealing with foreign policy, however, the Supreme Court differed dramatically in its analysis

Ibid.,384

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Foreign Policy: Foreign to the Constitution of the President’s role, repeatedly expanding the President’s power through a series of declarations that had no basis in the Constitution. In United States v. Curtiss-Wright Export Corp. (1936), the Court made a sharp distinction between foreign and domestic policy, insisting that the President needed to have much wider latitude in conducting foreign relations. The Court went further, though, than simply giving the President more flexibility in foreign policy: it radically enlarged the President’s power while simultaneously acknowledging that it was not basing its ruling on the provisions of the Constitution. The Court began by arguing that “the broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.”6 Essentially, the Court claimed that the Constitution’s emphasis on enumerated powers, which has guided the Supreme Court in determining the limited powers of all three branches, was invalidated within the entire realm of foreign affairs. In this opinion, the doctrine of enumerated powers suddenly vanishes. The opinion further argues that, with respect to “internal affairs,” the Constitution carves a set of enumerated powers “from the general mass of legislative powers then possessed by the states”7 and grants these powers to the federal government. The states are left with all the powers that are not enumerated. The Court then concludes that since “the states severally never possessed international powers, such powers… were transmitted to the United States from some other source,”8 a claim that suggests that the federal government is not always bound by the provisions of the Constitution. Rather, the Executive branch is empowered by a different source of authority, which the Court never quite identifies, but ominously links to the powers that were once “entirely under the control of the Crown.”9 The President’s “powers 6 7 8 9 10 11

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of external sovereignty,”10 thus, are not derived from the Constitution, but rather created within a structure external to the Constitution. In this analysis, the justices import assumptions about nationality and the Executive branch that run counter to the fact that the Constitution is one of enumerated and limited powers. Because Article II contains specific, enumerated powers, it forecloses the option of smuggling into the executive sphere of power any additional, extra-constitutional powers—powers that are foreign to the principles of the Constitution and are derived from a different, unidentified source.

“the Court made a broad declaration: the President has plenary power in ‘external affairs’ irrespective of what Congress does or does not authorize him to do.”

It is important to note that in Curtiss-Wright, the Court had the opportunity to rule narrowly: since Congress had explicitly authorized the President to stop munitions sales to countries involved in the Chaco border dispute, the Court could have decided that when Congress grants the President certain foreign policy powers, he has wide latitude to exercise them. There was no need for the Court to address the extent of the President’s inherent foreign policy powers, nor was there a need to contemplate the President’s power in situations where Congress is silent or opposed to the exercise of certain powers.

Instead of ruling narrowly, the Court made a broad declaration: the President has plenary power in “external affairs” irrespective of what Congress does or does not authorize him to do. In fact, the President’s power in foreign affairs is so plenary that it “does not require as a basis for its exercise an act of

Ibid., 371.

Ibid., 371.

Ibid., 371.

Ibid., 371.

Ibid., 371.

Ibid., 371.

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Becky Tseytkin Congress.”11 Though this case is differentiated from Youngstown because it dealt exclusively with foreign policy, the two cases can be used to illuminate the result in Hamdi v. Rumsfeld, where foreign and domestic policy intersected. Rather than limiting the President’s power to detain American citizens on American soil, the Court combined this power with the President’s foreign policy power, failing to differentiate between the external nature of war and the internal nature of detention.

Though Curtiss-Wright case preceded Youngstown, it set forth a very different standard for the interpretation of Executive power. It undermined the role that Congress had in authorizing the President’s actions, and focused on the inherent plenary power that the President possessed. In Hamdi, the Court refused to address whether the President had inherent power under Article II to detain individuals, circumventing this crucial question by arguing that Congress had authorized the detention. As a result, the claim of “plenary” Presidential power in foreign policy, which was insisted upon in Curtiss-Wright, was not revisited. However, the legacy of Curtiss-Wright is nonetheless inscribed in both recent case law and Presidential actions, and the ambiguity surrounding plenary Presidential authority has paved the way for Presidential tyranny. It is clear in Hamdi v. Rumsfeld that a different set of rules apply to the Executive branch, and that the Constitution is subordinate to them. For example in balancing governmental and individual interests, the Court ruled that when a prisoner challenges his detention, the burden is on him to rebut the government’s evidence. This presumption of guilt doctrine reverses the premise upon which the entire United States justice system rests, gutting the due process provision in favor of an omnipotent, extra-constitutional Executive branch. Though the Court claims to be engaging in a balancing act, it nonetheless rejects the key due process provisions that are guaranteed to every American citizen, and places the Executive outside the constraints of the Constitution. Though Curtiss-Wright was decided many decades ago, the

12

Supreme Court never quite undermined or clarified this amorphous, extra-constitutional Executive power. As a result, the Executive branch has been able to usurp extraordinarily vast power in a post9/11 world.

The Court made another serious error in its evaluation of the President’s foreign policy powers: it concluded too quickly that Congress could authorize virtually any Presidential actions, paving the way for a tyrannical power duo of the President and Congress. The framework laid out in Youngstown guided the Court for decades to come, paving the way for the unjust and ineffective ruling that emerged from Hamdi v. Rumsfeld. In Youngstown, Justice Jackson’s concurrence outlined the three scenarios in which the President exercises power not explicitly given to him by the Constitution: one, where Congress authorizes the President’s actions; two, where Congress is silent about the President’s actions; and three, where Congress expressly forbids a President’s actions.12 The Court found that the strength of the President’s power depended on whether Congress had authorized his actions. This framework is dangerous to employ, because it fosters collusion between the Executive and Legislative branches. Congress can simply give the President far-ranging and tyrannical powers, and the Court will defer to this agreement. While the Court has emphatically said that neither Article II, nor a state of emergency, nor a state of war grants the President a blank check, it is now implying that Congress can grant the President a blank check instead. However, as the Court has frequently stated in cases dealing with both state and federal power, just because the branches agree to divvy up power in a certain way doesn’t mean that this division is constitutional. The Court’s flawed logic in Youngstown was applied in later cases, and became particularly detrimental in Hamdi v. Rumsfeld, in which Congress did issue the President a blank check, and the Court upheld it.

Aside from the problematic approach of granting the President broad powers on the basis of what Congress has or has not permitted him to do, there is another flaw with the Court’s reasoning

Ibid., 321.

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Foreign Policy: Foreign to the Constitution in Youngstown. In its opinion, the Court spends a great deal of time interpreting Congressional inaction and implied Congressional intent, extrapolating Congressional intent from a murky set of circumstances. In Youngstown, the Court is inconsistent in the way in analyzes two forms of Congressional inaction. First, it notes that “Congress has taken no action” with respect to the President’s seizure of the steel mills, though it had the opportunity to do so. Second, it remarks that when the Taft-Harley Act was proposed, Congress had the option of adding an amendment that authorized governmental seizures, but did not do so. The Court treats these two observations differently, elevating the second as evidence of Congress’ opposition to the President’s actions. Congress’ inaction in passing a law that authorized government seizures, therefore, is tantamount to Congress’ passing a law that forbid government seizures. However, these two scenarios do not carry equal weight, and should not be treated as such: if the Court deems that Congress has authorized the President to exercise certain powers, these powers should be explicitly and specifically codified in statutory law. Congressional authorization should not be found in hypotheticals.

Furthermore, the Court was inconsistent when it briefly noted that Congress had not acted to reverse the President’s Executive Order, and then dismissed this as an unimportant detail. Whereas the Court had characterized the refusal to pass an amendment as a form of action, the refusal to respond to the seizure of the mills was given short shrift within the opinion. That is not to say that the Court arrived at the wrong conclusion, but merely that it did not evaluate Congressional intent and inaction in a consistent way. Youngstown highlights the ambiguity of interpreting whether Congress has authorized the President to act. Its legacy is evident in future Court decisions, where Congressional intent is not derived from the explicit language of statutes, but from unstated intentions and vague pronouncements.

The opinion in Dames & Moore v. Reagan, in 1981, inferred Congress’ implicit authorization of settling

13 14

claims via executive agreements by analyzing the International Claims Settlement Act of 1949. The Court was highly conscious of the precedent it was setting and the danger of augmenting Presidential power, as is evidenced by its repeated emphasis on how narrow the decision is and on the limited nature of The International Claims Settlement Act. The Court was much less cautious and narrow in Hamdi, reflecting the Court’s increased willingness in the twenty-first century to augment Executive power.

“The lack of specificity in the AUMF is striking.”

Hamdi v. Rumsfeld especially reveals the dangers of the framework used in Youngstown. The opinion in Hamdi also analyzes Congressional intent, but invokes a broad Congressional statute that grants the President virtually unrestricted power. The AUMF, which authorized the President to use “all necessary and appropriate force”13 against nations and persons associated with the September 11th terrorist attacks, was used as a justification for radically enlarging Presidential power and wiping out individual rights. The lack of specificity in the AUMF is striking. By permitting the President to exercise “all necessary and appropriate force,” Congress wrote him a blank check, avoided specifying procedures or suspending habeas corpus, and shifted the burden and responsibility to the Executive branch so it did not have to make decisions and lay out appropriate procedures. The Court relied heavily on the AUMF to justify its ruling, claiming that “the AUMF is explicit congressional authorization for the detention of individuals.”14 The Court’s use of the word “explicit” here is far from applicable, as Congress did not explicitly authorize the indefinite detention of individuals, the denial of due process, the repeal of procedures guaranteed to an American citizen, or the presumption of guilt. It did not authorize the President to hold individuals years after

Ibid., 384 Ibid., 383.

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Becky Tseytkin the 9/11 attacks, as though an “ongoing conflict” justifies federal tyranny. The Court then mentions that the act does not explicitly mention detentions, concedes this inconvenience, and quickly sweeps it under the rug: “It is of no moment that the AUMF does not use specific language of detention…

Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.”15 The two dangers presaged by Youngstown are fully realized in Hamdi. Firstly, regardless of whether Congress actually intended to grant the President the power to detain individuals and authorize a de facto suspension of habeas corpus, the President’s exercise of unrestricted power to detain American citizens and violate their rights is not constitutional simply because Congress says it is.

“As a result of the Court’s presumptive and goal-oriented interpretation of Congressional intent, the detention of American citizens was upheld...”

Secondly, it is not even “clear and unmistakable” that Congress authorized such detentions in the first place. In Hamdi, as in Youngstown, the Court sought to extrapolate from Congressional action and inaction, employing reasoning that subverted crucial facts and led to an inconsistent ruling. As the Court noted, 18 U.S.C. Section 4001(a) mandates that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”16 As it did in Youngstown, the Court glosses over this crucial detail, only briefly mentioning the history of 18 U.S.C. Section 4001(a) and the rationale behind its enactment. This bill’s legislative history, however, deserves far more attention. It was passed in 1971 “as part of a bill to repeal the Emergency Detention Act of 1950.”17 It was an act that sought to ensure that the horrors

15 16 17

of Japanese internment during World War II would never be repeated. It is important to note that the Emergency Detention Act of 1950, which “provided procedures for executive detention,” was repealed, and never reinstituted, suggesting that Congress’s refusal to set forth explicit detention procedures implies an aversion to granting the Executive branch this power. This, too, is a form of inaction, and shows that Congress was unwilling to allow the Executive to indefinitely detain individuals. It is also important to note that both the Emergency Detention Act and 18 U.S.C. Section 4001(a) explicitly mention detention, whereas the AUMF does not. They reflect an evolution of Congressional intent, from permitting detainment to explicitly outlawing it, whereas the AUMF mentions neither detainment nor the procedures that were laid out in the Emergency Detention Act. The requirement of 18 U.S.C. Section 4001(a) implies that an act of Congress would have to specifically allow the Executive to detain, or at least have enough of a degree of specificity to even mention detentions in the first place. It is inconsistent for the Court to conclude that “all necessary and appropriate force” carries with it the intent to detain, deny due process, and presume guilt. It is certainly not an authorization to accuse individuals of being “associated” with a terrorist organization without evidence or a trial, and to use “necessary and appropriate force” against those who have not been proven guilty. As a result of the Court’s presumptive and goal-oriented interpretation of Congressional intent, the detention of American citizens was upheld, with very few safeguards in place to allow them to contest their detention.

The AUMF is comparable to the Gulf of Tonkin Resolution, in which Congress also issued the President a blank check, escalating the Vietnam War and granting the Executive branch unlimited power. Taking into account the legislative history of the past sixty years, it becomes clear that Congress has not explicitly given the President the power to detain individuals, that “necessary and appropriate

Ibid., 384.

Ibid., 483.

Ibid., 383.

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Foreign Policy: Foreign to the Constitution force” is a blank check that has proved dangerous in the past, and that Congressional intent cannot be determined with any certainty. There is a counter-argument to be made for the President’s broad foreign policy power: he is better equipped to act quickly and efficiently, he has access to more classified information, and Congress cannot always foresee the circumstances in a time of war that would allow it to legislate with sufficient specificity.

However, the power to act with all “necessary and appropriate force” veers to the other extreme, giving the President the power of a dictator and elevating him above Constitutional provisions. Furthermore, three years had passed since the 9/11 attacks, and it was unconstitutional to permit the President to rely on the vagueness of the AUMF to justify all his actions; Congress should have reassessed the situation, and passed a more specific and limited law. The Court’s readiness to grant the Executive such power reflects the framework established by Youngstown: if the Court can detect, or even infer, Congressional assent, it authorizes the President’s actions. But the evolution from Youngstown to Hamdi also reflects how much more eager the Court of 2004 was to grant the President far-ranging power, despite the nuances of legislative history, and despite

the fact that Congress had repealed the Emergency Detention Act and insisted that the President could only detain pursuant to an act of Congress.

The opinion in Hamdi v. Rumsfeld claimed that it was balancing governmental interests against individual interests, but in reality, it was implicitly reinforcing the frightening claims asserted in CurtissWright. Hamdi reflects the flaws of Supreme Court jurisprudence on Executive foreign policy power, both in its grant of inordinate, extra-constitutional power to the President and in its reliance on Congressional authorization. The Court’s failure to rein in or amend the claims made in CurtissWright, along with its grant of power to Congress to expand the President’s power indefinitely, have created an executive branch whose powers extend far beyond Article II. Its powers have become extraconstitutional, and thus do not have clear boundaries or limits. The Court’s rulings on Executive power has shaped a world where American citizens can be detained for years, where due process is reduced to a nominal guarantee, and where human rights abuses can occur in secret in Guantanamo Bay and Abu Ghraib. It is a world that implicitly recognizes all the wild claims asserted in Curtiss-Wright.

“[The President’s] powers have become extra-constitutional, and thus do not have clear boundaries or limits. ”

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The Racialization of the People of Guam as Second-Class Citizens

By Monica Civille Williams College

The United States took control of Guam as a part of the Treaty of Paris in the aftermath of SpanishAmerican War in 1898. Since then, they have treated the island and its inhabitants as a colony, despite the United States’ overt anti-colonialism viewpoint.

The treatment that Guam has dealt with for over one hundred years has done damage to the island and caused great harm to its people. The culture and traditions of the indigenous people of Guam have been sacrificed for the “greater” American goal. While the United States takes full advantage of the geographic location of this island for military purposes, it continues to undermine the rights of those living in Guam. This paper will focus on the ways in which the United States has racialized the people of Guam as second-class citizens through the process of colonization.

Before delving into the discussion, it is important to define certain terms for the purposes of this paper. The term Guamanians refers to any permanent resident of Guam despite their racial or ethnic background. Chamorros are the native or indigenous people of Guam. While Guamanians are now recognized as American citizens, when the term “American” is used, it will usually refer to Americans from the mainland United States, unless otherwise specified. The term haole is used for white Americans living on Guam. The word originates from Hawaii and means “foreigner.”1 Guam is located in the western Pacific and is the southernmost and largest island in the archipelago of Mariana Islands. It has been documented that the 1

2

3

ancient Chamorros who inhabited the island were able to establish an organized and complex society that included cultural traditions and customs, an oral history, and a native language. Their first contact with the western world occurred in 1521 when the Spanish first “discovered” Guam.2 They proceeded to claim the island as a possession of Spain and began colonizing it in 1668. The Spanish intended to civilize the Chamorro people through the introduction of Christianity and various other western customs. When the Chamorros realized that their way of life was being threatened, a series of uprisings began between the natives and their Spanish colonizers that lasted for roughly 30 years.

Under Spanish control, the population of Chamorros was reduced from an estimated 50,000 to a mere 3,500 by the early 18th century.

In addition to losing a large percentage of their population, Spanish customs and traditions had encroached on the native culture through the process of colonization. Intermarriage was a critical tool that the Spanish used to dilute the Chamorro blood and infiltrate the lifestyles of natives. The degree of survival that Chamorros and their culture have maintained to this day, despite the intrusive influences from the Spanish and later the Americans, is truly remarkable.3 After falling under power of the U.S. government, Guam went through a process where its classification was highly debated among government officials. The tradition of eventual statehood was terminated with the acquisition of territories from the Treaty of Paris. The primary motivation for this change was the racial makeup of these newly acquired territories. Because they did not have white

Laurel Anne Monnig, “‘Proving Chamorro’: Indigenous Narratives of Race, Identity, and Decolonization on Guam” (PhD diss., University of Illinois at Urbana-Champaign, 2007), 376.

Román, Ediberto. The Other American Colonies: An International and Constitutional Law Examination of the United States’ Nineteenth and Twentieth Century Island Conquests. (Durham: Carolina Academic Press, 2006), 161.

Quan, Anthony T.J. “ ‘Respeta I Taotao Tano’: The Recognition and Establishment of the Self-Determination and Sovereign Rights of the Indigenous Chamorros of Guam Under International, Federal, and Local Law,” University of Hawaii Asian-Pacific Law & Policy 3, no. 1 (2002), 3.

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The Racialization of the People of Guam as Second-Class Citizens majorities, the inhabitants of Guam were believed to be uncivilized and savage.

Peter Smith concludes that the United States policy shifted away from incorporation because the new territorial areas were perceived unsuitable for European immigration or were already populated by people of indigenous, African, or Iberian heritage… white American colonists did not have an interest in inhabiting lands occupied by perceived savages…[A member of Congress noted that] “[t]hey have nothing in common with us and centuries cannot assimilate them.4 While this may no longer be the presentday opinion regarding Guam, it is these archaic attitudes that continue to set the precedent setting Guamanians apart from the rest of America.

Before the Organic Act of Guam was passed, the U.S. Navy controlled the island in order to position itself in a strategic location. Once the Naval base was established, the Federal government appointed a Naval officer as the governor of Guam. Under the Naval administration, Guam was ruled in a strict and militaristic manner.5 During this time, the goal was to “Americanize” the inhabitants of Guam without giving them any American rights or legal recognition. Local Chamorros were not allowed to participate in the government in any form, but were still bound by Naval rule in ways that even impacted their personal lives.

By 1907, Jim Crow laws which mandated racial segregation in schools and public spaces were implemented. English-only, American-style was compulsory, while the English language was pushed on Chamorros in a variety of other cultural arenas. The

4 5 6 7 8 9

Chamorro language was forbidden on school grounds, and in 1922 ChamorroEnglish dictionaries were burned. (This English-only policy continued until the 1960s.)6

“Only concerned with their own goals, [the United States] completely disregarded the traditions and customs of Chamorros.”

This is just one example of the extremes that the American government went through in the effort to Americanize the Chamorro people. Other laws included “strict limitation of alcohol use, the outlawing of the ringing of church bells too early in the morning, to ‘improving’ health care, hygiene, and diet… .”7 The absurdity of these laws speak to the actions and intentions of the United States. Only concerned with their own goals, they completely disregarded the traditions and customs of Chamorros. Anything that was considered a possible impediment to the Navy’s objectives was suppressed.

The United States government was able to achieve all of this without any say or real fight from the Chamorros because of the precedent set in Downes v. Bidwell.8 In this Supreme Court case, the Court stated that the United States Constitution did not apply to the territories of the United States in the same manner that it applied to the states, thus denying inhabitants of the territories their basic rights under the Constitution.9 This decision supported the doctrine of Congress’s “plenary power” over the territories. The Court’s decision was entirely rationalized on the basis of racism and xenophobia. “The Court found that ‘Anglo-Saxon principles’ of government and justice would be

Román, Other American Colonies, 24-27.

Quan, “Respeta I Taotao Tano,” 4.

Monnig, “Proving Chamorro,” 84-85.

Monnig, “Proving Chamorro,” 85.

182 U.S. 244 (1901).

Román, Other American Colonies, 98

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Monica Civille virtually impossible to apply to ‘alien races’ differing in ‘religion, custom, and modes of thought.’”10 Denying the protection of the Constitution is a strategy that the United States has used to maintain control over Guam and sustain its colonial status.

The Constitution is such an integral document that it serves as the backbone of the United States.

It is impossible to form any argument that an individual can be considered a full citizen without the protection of the Constitution.

Under the United Nations Charter, territories have options granted to them that concern their future state of affairs. One of these options is selfdetermination. “Resolution 545, adopted in 1952, recognized ‘the right of people and nations to selfdetermination as a fundamental human right.’”11 This right to self-determination is defined as “the right of a people or a nation to determine freely by themselves without outside pressure their political and legal states as a separate entity.”12 The U.S. has consistently been an advocate of “the emancipation of peoples under colonial rule.”13 The right to selfdetermine is in direct conflict with colonial rule but is based off of the belief that people have a right to be in charge of their own destinies.14

the opposite. “[They have] reserved the right to declare that some people were not yet ‘worthy of ’ or ‘ready for’ self-determination.”15 This provides the federal government with the authority to refuse requests for self-determination, a power it has used frequently with Guam, impeding Guam’s right to self-determination or even change its status to a Commonwealth, which would be at least one step up from the status of an unincorporated territory.

Guam has faced obstacles when trying to obtain self-determination because of disagreements that have arised between Chamorros and other local Guamanians. The federal government focuses on these disputes to support its refusal to grant alternative means of government for Guam while it continues to exploit the island for its own benefit.

Self-determination can almost be considered a myth because of its implausibility. Given the strategic military advantage that Guam provides the United States, there is no conceivable reason for the federal government to voluntarily give their control and power.

“Despite America’s vocal position in agreement of the right of selfdetermination, the [U.S.] has yet to fully grant that right to any of its territories”

To ensure that its territories do not take advantage of this option, the United States often dangles in front of them the carrot of the maintenance of relative economic prosperity under the status quo or even eventual statehood and, through economic incentives, ensures that the territories cannot afford a drastic drive for independence. To sever territorial ties with the United States would be, in effect, to cut the territory’s own “economic throat.”16

Despite America’s vocal position in agreement of the right of self-determination, the United States has yet to fully grant that right to any of its territories. Instead the United States has done quite

In order to secure its hold on the island, the United States uses a variety of strategies to keep Guam powerless. As discussed earlier, these include the denial of protection under the Constitution, military control that refuses to compromise with the

10 11 12 13 14 15 16

Quan, “Respeta I Taotao Tano,” 4.

Román, Other American Colonies, 79.

Román, Other American Colonies, Fn 54, 74.

Román, Other American Colonies, 74.

Román, Other American Colonies, 75.

Román, Other American Colonies, Fn 70, 78.

Román, Other American Colonies, 105.

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The Racialization of the People of Guam as Second-Class Citizens native people, and the denial of self-determination.

United States citizenship is also used as a hegemonic incentive. The manipulation of these tools provides the evidence needed to establish the United States as Guam’s colonizers.

Today, Guam is officially recognized as an organized unincorporated territory of the United States. To break down this title, Guam is considered unincorporated because “Guam and its people were not considered an ‘integral part’ of the United States.”17 It is considered organized because of the passage of the Organic Act of Guam in 1950, which was created in response to the Guamanians repeated concerns of autonomy. The Organic Act accomplished three things: it granted U.S. citizenship to all Guamanians, it created a bill of rights (that was based off of the Constitution), and it established a limited form of local government.18

“The people of Guam... are given substantially fewer rights and are viewed as a subordinate group.”

While the Act did finally grant Guamanians with some rights and limited government access, it simultaneously denied them many other rights that are considered basic rights of American citizens, such as voting for President, participating in the national government, and granting representation in Congress.19 Instead of presenting the Guamanians with the right of self-determination that they desired, they received a formalized document establishing their status as a colony.

The Organic Act is most notable for granting Guamanians United States citizenship. Although U.S. citizenship is highly esteemed, it should not be regarded as a stamp of acceptance from the United States. Guamanians were not granted the full set of rights that would normally be associated with this status. Instead, citizenship becomes a tool that

17 18 19 20

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the United States utilizes to sustain control in its colonies while giving the illusion of acceptance.

[T]he label “United States citizen” alone serves a hegemonic function… [and] facilitates colonialism. …its psychological force is consequential. Accordingly, even if the subordinate and disenfranchised citizen does not share the equal rights, the label alone serves to foster a sense of belonging.

Thus, even if the alien-citizen does not enjoy the full complement of rights held by the true Fourteenth-Amendment citizens, because of the imagined quality of the status of citizenship, the alien-citizen will likely still believe he or she belongs.20 As a Guamanian, I can personally attest to this feeling of belonging to America because of my United States citizenship. This illusion fades after leaving the island and coming to the mainland because of constant reminders that as Guamanians, we are different because of our homeland, so we are not true Americans. Ignorance plays into many of these interactions because of the vast number of people who have never heard of Guam or who know close to nothing about it. Requiring identification to prove our citizenship, specifically with our passport, is a regular occurrence in any Guamanian’s life in the mainland.

Having established that the United States is indeed applying these tools to keep Guam under its control, it becomes easier to see how Guamanians, despite being American citizens, have been racialized as second-class citizens. The people of Guam have the birthright of United States citizenship, but are given substantially fewer rights and are viewed as a subordinate group. From the perspective of the United States, the racialization of Guamanians equally touches all residents of Guam. This is not the case on the island. Within the local politics of Guam, there exists a tension between Chamorros

Quan, “Respeta I Taotao Tano,” 5.

Quan, “Respeta I Taotao Tano,” 5.

Quan, “Respeta I Taotao Tano,” 5.

Román, Other American Colonies, 101.

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Monica Civille and other Guamanians. Chamorros and other Guamanians frequently butt heads, as the interests of each group often clash.

In cultural imaginings, the promoters of Independence – perceived as speaking for the “common” person, “the pure and poor” Chamorro – often are believed to have more of a claim to “authenticity” or have more legitimacy in voicing what is “best” for Chamorro culture. …[T]hey are seen as having a “priority on cultural issues rather than economic issues.”21 Chamorros are also perceived to have better interests in mind when discussing the future of Guam because of their roots there. Other locals are argued to lack the “authenticity” or, in legal terms, the standing to make such arguments because Guam is not their “true” home.

It is common for all immigrants on Guam to create techniques to validate their experience on Guam and therefore, their opinions. Traditionally, haoles navigate these waters in a racialized manner that insinuates white nationalism. Haoles are critical of Chamorros in many aspects of life such as running the government, raising their children, or managing their health. Often times, these critiques began with phrases like “this island and these people.”22 However, haoles would still attempt to justify these opinions, in what I would assume to be an unconscious colonial mindset, by “equating belonging with length of stay,” on the island.23 Relations between Chamorros and other nonnative locals on the island have been debated all throughout the history of Guam. Many arguments center around political power, especially concerning whether or not Chamorros should have special rights set aside for them as natives. This question of special rights is discussed in Anthony Quan’s article “Respeta I Taotao Tano.” He focuses heavily on Guam’s right to self-determination, but more specifically the Chamorros’ right as the indigenous

21 22 23

population of Guam. He argues that Chamorros should be officially established as an indigenous population subject to special protection under the federal government, similar to Native Americans.

His argument is that Chamorros have a higher stake in self-determination because their people have been forced to sacrifice more as a consequence of the colonization by the United States.

Quan’s argument for justifying Chamorros as an indigenous people is legitimate and I cannot disagree with him. However, he believes that special rights should be set aside for Chamorros because they are the indigenous people of Guam. He never explicitly details what these rights would entail and it would be interesting to see this proposed list. Coming from the island, it is hard to imagine how this special treatment would play out in local politics. Quan seems genuinely worried for the Chamorro people and the extent of their influence on the island as they become an increasingly smaller proportion of the island. However, in actuality, the results of my survey as well as my own personal experience can attest to the amount of political strength the Chamorro people have on island and the advantage they are granted simply for being “blood” Chamorro.

It is clear that the United States has colonized Guam and proceeds to actively apply measures to maintain complete control. Colonizing Guam and denying its people the same rights as other American citizens has a detrimental effect on Guamanians by classifying them as secondclass citizens who are not an integral part of the United States. This racialization occurred in the relationship between Guam and the United States, but has permeated into the local affairs on the island between Chamorros and other Guamanians. The history of the colonization of Guam is evidence that the United States is failing to abide by their anti-colonialism stance and illustrates the various negative consequences that have emerged as a result.

Monnig, “Proving Chamorro,” 163-164.

Monnig, “Proving Chamorro,” 384.

Monnig, “Proving Chamorro,” 382.

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Rethinking Anti-Gang Ordinances A Comparative Study of City of Chicago v. Morales, and Gallo v. Acuna, and how Chicago Can Fight Gangs Going Forward

By Henry Bergman Williams College

At the close of 2012, the Federal Bureau of Investigation released its annual crime statistics.1 Of its many conclusions, one stands out from the rest: Chicago had become the murder capital of the United States of America in terms of sheer quantity, although not per capita.2 The ranking was a grim confirmation of an ongoing saga told through newspaper articles, candlelight vigils, and public outcry. Adding fuel to the fire is the fact that Chicago has had more youth homicides than any other major city for several years.3 The state of near perpetual mourning in the city gave urgency to the city’s police forces’ efforts to curb gang violence, which has been rightly seen as the root cause of the majority of these homicides.

However, gang violence in American cities is not a new phenomenon. It has been an ongoing problem for much of the 20th century, particularly in the last quarter, due to the rise of crack-cocaine and the resulting black market casheconomies. As such, cities and police forces have come up with novel strategies to fight gangs. Two of these methods in particular—civil injunctions as a subset of public nuisance laws in Los Angeles, and anti-gang ordinances in Chicago—came under judicial review on the grounds of their constitutionality in the late 1990s. In light of the resurgence of gang violence, and new public fervor to curb this violence, a fresh look at these cases is necessary and may yield useful information for the creation of new legislation and strategies to fight gangs.

This paper will therefore examine the United States Supreme Court’s decision to strike down 1 2

3

4

Chicago’s anti-gang ordinance in City of Chicago v. Morales, 527 U.S. 41 (1999) and the California Supreme Court’s decision to uphold injunctions on certain gang members in People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090 (Cal. 1997). After an initial presentation of the cases, with a focus on the void for vagueness doctrine, I am going to articulate how a change in void for vagueness doctrine could potentially be used to craft more effective ordinances to fight gangs in Chicago.

When the City of Chicago first decided to draft wide-reaching legislation to fight gangs, the City Council’s Committee of Police and Fire held hearings to include public opinion and constituents real-life experience in crafting the legislation. One theme that emerged was that gang members used “loitering” as a way to intimidate and harass others even if the gang members were not engaging in other criminal activity.4 These hearings resulted in the creation of the Chicago Gang Congregation Ordinance, which states: “a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. (b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang. (c) As

United States. Federal Bureau of Investigation. Crime in the United States 2012. 2013. Web. Wilson, Reid. “FBI: Chicago passes New York as Murder Capital of U.S.” Washington Post 18 Sep 2013, Online Ed. n. Web. 14 Dec. 2013. <http://www.washingtonpost.com/blogs/govbeat/wp/2013/09/18/fbi-chicago-passes-new-york-as-murder-capital-of-u-s/>.

Caputo, Angela. “Chicago: Murder Capital No More.” Daily Beast 13 Dec 2013, Online Ed. n.

Web. <http://www.thedailybeast.com/articles/2013/12/13/chicago-murder-capitol-no-more.html>.

Petitioner’s Brief at 10, City of Chicago v. Morales 527 U.S. 41 (1999) (No. 97-1121)

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Henry Bergman used in this Section: (1) ‘Loiter’ means to remain in any one place with no apparent purpose... (5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned...”5 The Illinois State Supreme Court held that the ordinance was unconstitutional for two reasons, that it “violates due process in that it is impermissibly vague on its face.”6 The other reason is that the ordinance is “an arbitrary restriction on personal liberties.”7 The Supreme Court affirmed both of these complaints.

Justice Stevens, writing for the plurality, argued that a law could be void for vagueness under two criteria: “it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.”8 The issue arises out of the ordinance’s definition of ‘loiter’ as reproduced above, which makes it near impossible to define both what

“Because of the difficulty in defining ‘loitering,’ the ordinance covered many innocent behaviors.” is and what is not an “apparent purpose.” Justice Stevens illustrates this difficulty with the example of talking to another person on a corner.9 Are both people loitering? This type of question demonstrates how difficult it is for an average person to know if they are breaking the ordinance or not.

Due to this problematic definition, the ordinance is void for vagueness by the first definition.

The ordinance was also found too vague in

terms of its enforcement. Because of the difficulty in defining “loitering,” the ordinance covered many innocent behaviors. Further, there was a lack of language governing a police officer’s discretion. In Justice Breyer’s concurring opinion, he wrote that the ordinance violates the Constitution because “it delegates too much discretion to a police officer to decide whom to order to move on,... I see no way to distinguish in the ordinance’s terms between one application of that discretion and another.”10 Although not acknowledged in the Court’s opinion, or discussed in the legal analysis, it is reasonable to discuss the veiled allusion to race in the issue of discretion. In urban cities, gang members are overwhelmingly male, and black or Latino.11 Chicago gangs are no different from the average gang.

Moreover, gang violence and homicide in Chicago are concentrated in several poor, predominantly black, neighborhoods.12 Since the ordinance targets gang members, it is reasonable to claim that the ordinance racially profiles blacks and Latinos. Although the ordinance clearly was not expected to be ruled unconstitutional when it was crafted, the underlying fear of not wanting to make a piece of legislation that overtly targets racial groups could easily explain why some of the language was so general and vague.

Although geographically different, many cities in California suffer from similar gang problems as in Chicago. However, there has been a drastically different legal strategy employed to combat these issues. In contrast to City of Chicago v. Morales, the California Supreme Court in People ex rel. Gallo v. Acuna upheld the constitutionality of anti-gang actions.13 Unlike the Chicago Gang Congregation Ordinance, California had been using injunctions against gang members to prevent them from meeting together and engaging in gang-related activi-

Parts of the ordinance have not been reproduced for the sake of brevity and pertinence to the paper. Chicago Municipal Code §8–4–015 (added June 17, 1992), reproduced in footnotes of City of Chicago v. Morales, 527 U.S. 41 (1999).

6 City of Chicago v. Morales, 527 U.S. 41 (1999).

7 Id. at 56.

8 Id. at 56.

9 Id. at 57.

10 Id. at 71.

11 United States. Office of Juvenile Justice and Delinquency Prevention. National Youth Gang Survey Analysis. 2012. Web. 12 Caputo, “Chicago: Murder Capital No More.”

13 People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090 (Cal. 1997).

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Rethinking Anti-Gang Ordinances ties. In his opinion, Justice J. Brown provides a succinct history of gang injunctions. Rooted in public nuisance laws, the gang injunction is predicated on the notion that “the interests of the community are not invariably less important than the freedom of individuals,”14 which in turn is based on the idea that by participating in society, a person agrees to contribute to the common good.

However, when a group of individuals, such as a gang, acts in an intimidating manner, to the point that other residents do not feel safe traveling outside of their homes or participating in public life, there are grounds for an injunction because the interference is both “substantial and unreasonable.”15 The injunction contested in the case aimed to end the “substantial and unreasonable” by forbidding a litany of behaviors. The defendants unsuccessfully argued against the injunction on the same grounds as Chicago v. Morales: void for vagueness.16 However, whereas the Supreme Court found the gang ordinance to be too vague, the California Supreme Court found an injunction acceptable because it was clear in many of the ways that the ordinance was not. For example, whereas the Chicago ordinance could be reasonably applied to “criminal street gang members” and anyone in the wrong place at the wrong time, the California injunction was directed at specific individuals who were notified of the injunction. Moreover, “loitering” has an extremely broad definition, as previously articulated. In contrast, the injunction, although covering a wide range of activities, is specific enough (i.e. “standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant herein, or with any other known ‘VST’ [a gang] member”17) so that the individual knows exactly what he can and cannot do. Hence, the injunctions were not void for vagueness and the com-

plaint was rejected.

The main legal commonality between these two cases is void for vagueness doctrine. It is at this theoretical point that legal strategies for fighting gangs can be improved. Void for vagueness can be found if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”18 An issue arises in the second criteria. Theoretically, each law is always enforced every time. But practically speaking, this does not happen and police officers have a great amount of discretionary power with regards to when to enforce a law or statute. In the worst cases, this can result in racial profiling, damaging the relationship between a police force and the community it serves. In a more positive example, someone speeding home from a terrible day at work does not have the added torment of a ticket because the police officer uses his or her discretion to not give a ticket.

Currently, a law can be found “unconstitutionally vague based solely on the second prong, which would then allow it to invalidate the law on its face if there is a potential for discriminatory enforcement.”19 The key term here is “on its face” which refers to a facial challenge to the law. This is a type of challenge in which “the plaintiff alleges that the legislation is always unconstitutional, and therefore void.”20 Therefore, it is possible, using the second criteria in void for vagueness doctrine, to strike down a statute or ordinance because of the possibility that the discretion of the enforcing police officer will be used discriminatorily regardless of whether or not the content of the ordinance is discriminatory. Applying this logic to the Chicago anti-gang ordinance, it could have been struck down even if a common person knew what was and was not illegal.

Id. at 3.

Id. at 4.

16 The defendants also fought against the injunction on the basis that the Street Terrorism Enforcement Prevention Act “preempts use of the general public nuisance statutes.” For this quote and a broader analysis of Gallo v. Acuna, please see Perez, Silvia. “Alternatives In Fighting Street Gangs: Criminal Anti-Gang Ordinances V. Public Nuisance Laws.” St. Thomas Law Review. 13.619 (2001): p. 2 17 People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090 (Cal. 1997). p. 20.

18 United States v. Williams, 128 S. Ct. 1830, 1845 (2008). p. 1846 19 Lockwood, Cristina D. “Defining Indefiniteness: Suggested Revesions To The Void For Vagueness Doctrine.” Cardozo Public Law, Policy & Ethics Journal. 8.255 (2010) Web. 20 “Facial Challenge.” Wikipedia. 2013.

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Henry Bergman In the context of predominantly black and brown gangs, such as those in Chicago, a new, completely constitutional ordinance cannot be created for the fear that in practice, its enforcement would lead to racial profiling.

However, if the fear of police discretion manifesting itself as discrimination were not present, and the ordinance need not worry about being rejected for vagueness, there would be the potential for the creation of an ordinance with the positives of the Chicago Anti-gang ordinance minus the vague negatives. Thus, the change the Supreme Court should make regarding void for vagueness doctrine is to do away with the second criteria as it has been discussed. As recent (2010) legal scholarship has highlighted, Chicago v. Morales was found too vague on the possibility that the ordinance lacked ways to limit the discretion of the officers, but provided no analysis to prove whether or not the officers enforcing abused their discretionary powers.21 In the event the Supreme Court does not change its void for vagueness doctrine, what does Chicago do currently and what can it do going forward? In a general order issued on October 16, the Chicago Police Department articulated its multi-faceted Gang Violence Reduction Strategy.22 There is an emphasis on coalitions with other public and city services as well as community building throughout the document. The Gang Intervention Probation Program (GIPP) in particular is reminiscent of California gang injunctions for its use of curfews and prohibitions against participating in gang activities and associating with other gang members.23 It appears to be a streamlined version of a California injunction without the need for a new legal process for each gang member. Its probationary, and thus temporary nature, also fixes an issue raised by injunctions: they continue even if a person has left the gang life.24 In contrast, the GIPP aims to compel gang members to leave the gang behind in exchange for a better quality of life.

Because there has yet to be any other legal work on this document, the following observations are speculative. A common theme throughout the Gang Violence Reduction Strategy is a focus on the individual. Besides GIPP, the majority of the strategies outlined focus on gang members or a gang itself. A priority of gang member first, then community impacts dominates the order. In many respects, such as how to respond to a “shots fired” call, this is the necessary logic, because responding to a call is always a reactionary act. On a deeper level, there is acceptance that the police force should react to a gang’s occupation of a specific neighborhood.

On the other hand, when the City of Chicago created the anti-gang ordinance, it was in an attempt to fight gangs by taking away their space.

The issue was not the existence of gangs, but the fact that they occupied the public space and broke the law. If a group of guys wanted to experience gang life and hang out in a basement, that would have been fine as long as they did not occupy the public space on the corner, or in a vacant lot. Unfortunately, and rightly so, the ordinance as it was drafted was struck down by the Supreme Court.

Yet in light of the notable increase in homicide and gang violence in Chicago, perhaps it is time for the City of Chicago to open up a new front in the fight against gangs by taking away their turf and drafting a new ordinance. This new ordinance would be modeled on the ordinance in City of Chicago v.

Morales, but with several key differences. First, it would only apply in to certain corners, blocks, or spaces as identified by the Chicago Police Department as hot spots of crime and gang activity. Anyone found loitering for longer than a set period of time, perhaps as little as half an hour, would receive a warning or fine. These loiter free spaces would be made known to the community.

Further, it would not be a permanent ordinance.

Every three months, an audit of the space would be conducted. If there is a significant drop in crime

Lockwood, Id. at 293-294.

McCarthy, Garry F. General Order G10-01: “Gang Violence Reduction Strategy”, Chicago Police Department, 16 October, 2013. \ Web. http://directives.chicagopolice.org/directives/data/a7a57bf0-136d1d31-16513-6d1d-382b311ddf65fd3a.html 23 Id. 24 Caldwell, Beth. “Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions.” American Journal of Criminal Law. \ 37.241 (2010): n. pp. 243-245.

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Rethinking Anti-Gang Ordinances in the space over the period of time, the ordinance is rescinded and people would be able to loiter if they so desired. In the event crime spikes again, the ordinance can be reinstated for that space. Given the rise of technology and statistics in modern police work, tracking a specific corner would be quite simple, and the ordinance could be maintained through routine police patrols. Moreover, the issue of discretionary enforcement would be ameliorated by the fact that gang affiliation does not matter in who this ordinance applies to because it applies to the space instead of the individual.

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While this may seem somewhat draconian, it is prudent given the horrific amount of violence affecting certain neighborhoods. Moreover, many members of communities affected by gang violence already do not spend time in the spaces that this ordinance would affect because of the intimidation and nuisance that is present from gang members.

Therefore, the net outcome would mostly affect gang members, and hopefully help reduce the violence and homicide that has plagued Chicago in recent years.

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