ACSBlog

  • January 31, 2014
    Guest Post
    by Andrew Guthrie Ferguson, Associate Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013)
     
    In his State of the Union Address, President Barack Obama stated, “Citizenship demands a sense of common cause; participation in the hard work of self-government; an obligation to serve to our communities.” So why does the official test to become a citizen fail to address these participatory values? Why in the battle over legal paths to immigration do we not rethink what we demand from new citizens?
     
    “Where is the Statue of Liberty?” So reads one of the 100 questions every new citizen might have to answer to pass the national citizenship test. The national citizenship test, created in 1986 and updated in 2008, involves 100 questions focused on American civics, history and geography. Actual questions include: “What are two Cabinet-level positions?” “The Federalist Papers supported passage of the U.S. Constitution. Name one of the writers.” “Who was President during the Great Depression and World War II”? “Name two national holidays.” The questions and answers are provided to study from, and applicants need only answer six out of ten randomly selected questions correctly to pass the test. But, the question remains: is this really the test we want to create productive and contributing citizens in American society?
     
    First, a bit of history: For much of early America, there was no citizenship test required to gain citizen status. In 1790, three years after the creation of the U.S. Constitution, Congress passed the first naturalization act that allowed free white people “of good character” to apply for citizenship after living in the United States for two years and swearing to uphold the Constitution. Subsequent acts extended the residency requirement to five and then briefly to fourteen years. In 1868, the Fourteenth Amendment extended birthright citizenship to “All persons born or naturalized in the United States” covering African Americans and others born on United States soil.
     
  • January 28, 2014
    BookTalk
    Defining the Struggle
    National Organizing for Racial Justice, 1880-1915
    By: 
    Susan D. Carle
    by Susan D. Carle, Professor of Law, American University Washington College of Law
     
    As the nation heads towards the 50th anniversary of the Civil Rights Act of 1964, the time is ripe for revisiting the origins of the social movement that gave this important legislation its birth. We commonly think of the federal civil rights legislation of the 1960s, including both the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as a product of a social movement that began just a few decades before. In fact, however, both the ideas for new national civil rights legislation to enforce the U.S. Constitution’s dictates of citizenship equality, and the activism that propelled those ideas into law, have far older origins.
     
    Defining the Struggle: National Organizing for Racial Justice, 1880-1915, uncovers the almost forgotten “prehistory” of national organizing to promote racial citizenship equality. The book traces this history’s basis in the activism of lawyers and other civil rights leaders of the late 19th and first years of the 20th century. Through organizations rarely remembered today, such as the National Afro American League, the National Afro American Council, the Niagara Movement and others, early national leaders and activists began to experiment with a panoply of law-related strategies for advancing the equality principles embedded in the nation’s constitutional texts. These activists deeply believed in these fundamental equality principles, but they just as deeply distrusted the bureaucrats charged with enforcing law. Put otherwise, they were not naive “legal liberals” who believed the courts would enforce racial equality principles simply because they were petitioned to do. Early civil rights lawyers understood that the struggle would be a political one, and they were pessimistic about the advances that could be made without gaining more political power. At the same time, they believed that the courts were one forum in which the battle for racial equality should be fought, if only by exposing the nation’s hypocrisy on racial equality to the world. Even recognizing the great odds against them, this early generation of legal activists was willing to take on the challenge of using principles of  constitutional law to challenge the unjust application of law.
     
  • January 27, 2014
    Guest Post
    by Carlos Sandoval and Catherine Tambini, Directors, Producers, The State of Arizona
     
    Editor's NoteThe State of Arizona debuts tonight, January 27, on the PBS series Independent Lens. Check local listings.
     
    The fact that our documentary, The State of Arizona broadcasts the night before The State of the Union has put each of us in mind of the state of immigration reform and the challenges we’ve continuously faced in adopting it.
     
    Why should the issue be so vexing? After all, everyone agrees the immigration system in place is broken. One of the greatest indicators that the system broke down was the state of Arizona when we first started filming.
     
    We were drawn to Arizona by SB 1070, the state’s controversial law, nicknamed the “Show Me Your Papers” law. It was the most extreme immigration law our country had seen in generations. It had a smorgasbord of provisions, including one that, as past by the legislature, required any state entity to request documents from anyone deemed “reasonably suspicious” of being undocumented. If a county, city or town employee failed to ask for papers, they risked sanctions or a private right of action embedded in the law. The law codified racial profiling, which was why it drew international headlines.
     
    We landed in Arizona soon after Governor Brewer signed an amended version of the bill, one that cabined SB1070 to legitimate stops by law enforcement. Still a scary proposition given the way Maricopa County Sheriff Joe Arpaio’s office was, as a federal district court judge later ruled in Melendres v. Arpaio, engaging in systematic racial profiling of Latino drivers under the color of law.
     
    What we found on the ground was a state of fear.
     
  • January 24, 2014
    Guest Post
     
    Last week, I attended the argument before the U.S. Supreme Court in McCullen v. Coakley, a case challenging Massachusetts’ law creating a 35-foot buffer zone around abortion clinics. 

    The law limits anyone from occupying the space around the entrance or driveway of an abortion clinic. These limits apply whenever people identify as pro-choice or anti-choice, and have exceptions for patients, those accompanying them into the clinic, clinic staff, those on official business, and pedestrians who happen to cross a clinic’s path while on their way somewhere else. Anyone can still distribute literature, hold signs, protest, or engage in conversation—just not within that 35-foot neutral zone to let patients through.

    During the oral arguments, Justice Antonin Scalia acknowledged that “if it was a protest, keeping them back 35 feet might not be so bad.” But then he added that this particular case is, in his view, “a counseling case, not a protest case.”
     
    This distinction is not warranted. Whether people shout loudly or talk softly is not the point. The statute’s goal is to diffuse congestion, not regulate speech. It simply ensures that patients have safe passage into clinics when exercising their own constitutional rights.
     
    In the decades since abortion was legalized in the U.S, doctors and clinic staff have been constantly threatened with harm, patients have been routinely harassed, and abortion clinics have suffered bombings, arson, and blockades. In fact, according to the National Abortion Federation, there have been eight murders, 17 attempted murders, 42 bombings, 181 incidences of arson, and thousands of incidents involving other criminal activities since 1977.
     
  • January 24, 2014
    Guest Post
    by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
     
    On July 3, 2013, the Seventh Circuit rendered the first appellate opinion on the issue of whether Twombly and Iqbal may be applied to adjudicate the sufficiency of federal criminal indictments in United States v. Vaughn. Coincidentally, that same day, ACS released my Issue Brief, “Applying the Rationale of Twombly to Provide Safeguards for the Accused in Federal Criminal Cases.” My Issue Brief analyzed the sufficiency of indictments under the very same criminal conspiracy statute involved in the Seventh Circuit case – 21 U.S.C. Section 846.
     
    In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act.  As Iqbal noted:
    “The Court held the plaintiffs’ complaint deficient under Rule 8.  In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.
     
    The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”