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.
* Editor's Note: The 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.
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.
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
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.”
In a win for democracy, last Friday Judge Bernard J. McGinley of the Commonwealth Court of Pennsylvania struck down Pennsylvania’s voter ID law. Among other problems cited in the court’s decision, this restrictive law violated the right to vote, which is expressly guaranteed in Pennsylvania’s Constitution. The decision is important not only because hundreds of thousands of Pennsylvania voters, who lack one of the limited forms of acceptable photo ID previously required under the law, can now cast their ballots without burdensome obstacles – but also because of the court’s willingness to enforce the guarantee of a fundamental right to vote as enshrined in the Pennsylvania Constitution.
Unlike the U.S. Constitution, the Pennsylvania Constitution explicitly recognizes the right to vote, stating that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Commonwealth Court reaffirmed that this right is fundamental, as well as “pervasive of other basic civil and political rights.” As the court explained, elections are “free and equal” only when they are public and open to all qualified voters, when every voter has the same opportunity to cast a ballot, when that ballot is honestly counted, and when the regulation of elections does not deny the exercise of the right to vote.
According to the court, the voter ID law violated the state constitution because it required photo ID without mandating any legal, non-burdensome way for voters to get it. Instead, the measure merely required that the existing non-driver photo ID issued by the Pennsylvania Department of Transportation (PennDOT) be provided for “free.” The Pennsylvania Supreme Court, however, already held in 2012 that PennDOT failed to uphold that requirement because of the underlying documents required, such as a birth certificate (which can be costly or, in some cases, not exist at all); the limited PennDOT locations where ID cards were even available; and the burdens faced by voters who had to travel to one of these centers and wait in line to get an ID. In light of these obstacles, the Department of State attempted to create a “just for voting” ID (DOS ID), but the Commonwealth Court held that this ID was an unauthorized agency creation that failed to pass constitutional muster. The DOS ID suffered from similar problems as the PennDOT ID because it created barriers that prevented voters who lacked compliant ID from getting it.