Category: fourteenth amendment

“Both sides are us”: Stuntz and Kennedy unpack the spirituality of criminal justice reform

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By Alan Bean

In 2010, Michelle Alexander’s The New Jim Crow: Mass Incarceration in an Age of Colorblindness, rocked the civil rights community back on its heels.  Alexander accused the criminal justice reform movement of seeking legal solutions to a moral problem, of fighting for affirmative action while abandoning the victims of a brutal and counter-productive drug war, of telling pretty stories about wrongfully convicted poster-boys while ignoring the social nightmares unfolding in poor communities of color.

 If the way we pursue reforms does not contribute to the building of a movement to dismantle the system of mass incarceration, and if our advocacy does not upset the prevailing public consensus that supports the new caste system, none of the reforms, even if won, will successfully disrupt the nation’s racial equilibrium.  Challenges to the system will be easily absorbed or deflected, and the accommodations made will serve primarily to legitimate the system, not undermine it.  We run the risk of winning isolated battles but losing the larger war.

In 2011, two books by white males revealed that Michelle Alexander is not the only American scholar in search of a new moral consensus for ending mass incarceration.   The Collapse of American Criminal Justice by William J. Stuntz, and Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America by David M. Kennedy are not books written in response to Alexander’s The New Jim Crow.  Stuntz and Kennedy are white male academics who see mass incarceration and the war on drugs as unmitigated disasters.  These authors tackle America’s racial history head on.  Most importantly, they agree with Alexander that a movement to end mass incarceration must begin with a new moral consensus.    (more…)

Are undocumented immigrants ‘persons’?

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By Chris Kromm

This column originally appeared in Facing South

When the U.S. Census counts the population of the country every 10 years, who qualifies as a person? This week, the state of Louisiana filed a lawsuit which challenges the Census’ long-standing policy of counting all residents — citizens and non-citizens — and using those results to divide up seats in the U.S. Congress.

The lawsuit, which has broad implications for the political role of immigrants, comes after Louisiana lost a Congressional seat following the 2010 Census count. Thanks to the massive displacement after Hurricane Katrina — the city of New Orleans lost 30% of its population between 2000 and 2010 — Louisiana’s delegation fell from seven seats to six.

During the last 10 years, every other Southern state saw growth — in many cases fueled by new immigrants. Texas, for example, gained four Congressional seats thanks to its burgeoning population; the Census estimates two-thirds of the growth came in the Latino/Hispanic community.

New immigrants were also key to increases in size, and added Congressional seats, in Florida, Georgia and South Carolina. Nationally, about 22% of voting-age Latinos are not citizens.

In the lawsuit filed directly to the Supreme Court, Louisiana v. Bryson [pdf], Louisiana argues that the Census policy of counting non-citizens allows other states to gain clout “at the expense of states containing relatively few” undocumented immigrants, like Louisiana. Leave out the undocumented residents, Louisiana says, and it would still have seven Congressional seats.

Louisiana Attorney General Buddy Caldwell innocently says that “Louisiana’s complaint simply asks the court to require the federal government to re-calculate the 2010 apportionment of U.S. House of Representatives seats based on legal residents.”

If the Supreme Court ruled in Louisiana’s favor, the fallout would be anything but simple. Aside from forcing 17 states to scrap their political maps on the eve of the 2012 elections, the law would fundamentally change how the Census works and immigrants are recognized in the country.

The U.S. Constitution originally said the Census should involve “counting the whole number of free persons,” which the 14th Amendment changed to “counting the whole number of persons,” including non-citizens.

Changing that mandate would be felt at every level of government and the economy. States and localities, which provide services like police, fire and medical treatment to undocumented residents, depend on billions in federal aid based on whole-person counts. Undocumented residents also paid $11.2 billion in taxes in 2010.

If the Supreme Court sided with Louisiana in saying that undocumented residents shouldn’t count in divvying up Congresional districts, they may be cornered into saying the Census can’t count them for other policy matters as well.

This isn’t the first time Louisiana leaders have dragged the Census into the immigration debates roiling the South and country. In 2009, U.S. Sen. David Vitter (R-LA) introduced an amendment to the bill funding the 2010 Census that would have required Census workers to ask residents if they were U.S. Citizens; the senate voted down the measure.

Redistricting advocate Justin Levitt, who runs the website All About Redistricting, said on Twitter that the Louisiana suit “will lose, and lose badly, for several reasons.” Rick Hasen at the University of California-Irvine agrees on the Election Law Blog:

How appealing will be an argument to a bunch of originalists/textualists that the term “persons” in the Constitution does not include all people, and in fact excludes non-legal residents?

The slow death of the 14th amendment

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Richard Beeman

On May 4, amateur historian David Barton appeared on Jon Stewart’s Daily Show.  Barton’s central argument was that, constitutionally, the first amendment applies to the federal government but not to the states.  Therefore, if individual states and municipalities see fit to make the Bible the sole standard for criminal and civil law, to reinstate chattel slavery or to make Christianity an official and protected religion, the federal government can do nothing about it.

Barton didn’t suggest that non-federal governments should do these things, merely that they can if they want to.

On May 14th, Jon Stewart invited Richard Beeman, an actual constitutional scholar at the University of Pennsylvania, to respond to Barton’s theory. (more…)