August 2010

  • August 11, 2010
    Dubbing it "the country's largest lawyers' group," The Associated Press notes the American Bar Association's approval of a resolution urging "state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

    Stephen P. Younger, president of the New York State Bar Association, which sponsored the marriage equality resolution, told the AP that the vote in favor of the resolution was overwhelming.

    The ABA resolution (pdf) states in part:

    The states that have decided to allow same-sex couples to marry have done so because of their recognition that the denial of marriage violates the constitutional rights of gay and lesbian citizens and their understanding that families and children are vulnerable without the protections of marriage. This proposed recommendation will signal the ABA's support for the extension of equal marriage rights to same-sex couples under state, territorial, and tribal law, as consistent with our country's constitutional principles of equal protection and due process, as well as states' strong interest in protecting and fostering the family unit.

    Excluding same-sex couples from the right to marry has the practical impact of denying them and their children a host of rights and responsibilities that exist under both state and federal law. State protections automatically extended to married spouses include the ability to make health care decisions for one's spouse, the right to direct the remains of a deceased spouse and inherit from his or her estate absent a will, the security of being able to provide health insurance for one's spouse, and the peace of mind knowing that both adults' relationships with children born to the couple will be protected.

    Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., allow same-sex marriages, other states, such as Maryland, recognize gay marriages from those states.

    The ABA's resolution follows on the heels of a federal court judge's invalidation of California's Proposition 8, which stripped lesbians and gay men of the right to wed in the state.

  • August 11, 2010
    Guest Post

    By Gilda R. Daniels, an assistant professor at the University of Baltimore School of Law. Daniels, a former deputy chief in the Voting Section of the DOJ's Civil Rights Division, will moderate a panel discussion during ACS's Voting Rights Symposium Sept. 28 (details to be announced). 

    I admit it. I am a Voting Rights Act baby. I was born 45 years ago and so was the Voting Rights Act. Just like me, the Voting Rights Act must adapt to and acknowledge a changing society, but we are far from over the hill and should not be discarded as a relic of the past. At the signing of the Voting Rights Act of 1965, President Johnson called the passage of the VRA a "triumph for freedom" and linked the need for the VRA to the history of African Americans in America. After Bloody Sunday left the country in shock over man's inhumanity to man and countless efforts to secure equal voting rights through piecemeal litigation, then-Attorney General Katzenbach convinced Congress to pass and the President to sign the Voting Rights Act to serve as the vehicle that would tear down Jim Crow's barriers to the ballot, such as literacy tests and grandfather clauses. The Act was sorely needed. In March of 1965 in Alabama, only 19.3 percent of blacks were registered compared with 69.2 percent of whites, an almost 50 percent gap in registration rates. The most egregious state was Mississippi with a 63.2 percent gap between blacks and whites. Only 6.7 percent of its eligible Black voting age population was registered. (See "Minority Representation and the Quest for Voting Equality.") Have we made advances? Absolutely. Have we reached the post-racial Promised Land where the VRA is no longer needed? No.


    Recently, the VRA has come under attack. VRA opponents in Georgia and Alabama have filed lawsuits challenging the constitutionality of the Act and particularly its Section 5 provisions which require certain jurisdictions, mainly southern states, to receive approval before making any changes to the voting scheme. Changes can include anything from moving a polling place across the street to a Congressional redistricting. Many jurisdictions consider Section 5 onerous and out of date in this "post racial" world. They eagerly point to the White House as an example of how we, as a nation, have overcome. They neglect to point out, however, that in that historic election, candidate Obama did not win any of the states in the Deep South, where blatant injustices forced the federal government to respond with the VRA and where racially polarized voting continues to exist.

  • August 11, 2010
    Congressional conservatives' call for repealing or examining the possibility of undoing the citizenship clause of the 14th Amendment continues to draw sharp scrutiny and even some befuddlement.

    In a column for The Washington Post, Harold Meyerson tags the "Republican war on the 14th Amendment" as one against Latino voters who may pose a threat to the GOP.

    Meyerson writes:

    By proposing to revoke the citizenship of the estimated 4 million U.S.-born children of undocumented immigrants - and, presumably, the children's children and so on down the line - Republicans are calling for more than the creation of a permanent noncitizen caste. They are endeavoring to solve what is probably their most crippling long-term political dilemma: the racial diversification of the electorate. Not to put too fine a point on it, they are trying to preserve their political prospects as a white folks' party in an increasingly multicolored land.

    As noted by Meyerson, recently Post columnist E.J. Dionne wondered whether Republicans leading the attacking on the Constitution's clause that guarantees citizenship to all born here "really want to endanger your party's greatest political legacy by turning the 14th Amendment to our Constitution into an excuse of election-year ugliness?"

    In a follow-up to his stinging critique of leading Republicans' attacks on the citizenship clause, University of Baltimore School of Law Professor Garrett Epps, notes in another piece for the Atlantic "a powerful movement urging Congress and the courts simply to ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status."

    Epps writes:

    When (as even its supposed proponents know will happen) the constitutional amendment proposal is dropped after the election, there will remain demand that the courts simply re-interpret the Clause.

    As a matter of constitutional interpretation, it ought to be a tough sell. The language of the Clause is pretty sweeping: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But the nativist right has begun to explain that the "original intent" of the Clause is different from what it says.

    "Originalism" in this context means the use of clever arguments and partial quotations to eradicate the actual text of an argument. I mean no disrespect to the many fine scholars who work hard to recover the "original public understanding" of the Constitution's language. Their work is often provocative and valuable, even if rarely conclusive. But the rhetoric of "original intent" is sometimes misused by very unscholarly figures as a tool to silence questions about far-right constitutional theories.

    A clear text, like the Citizenship Clause, can slowly be covered over by barnacles of quibble and questionable historical assertion, until legislators and even judges are convinced that it can't mean what it says. This stealth technique of legal change illustrates a saying of that wise old psychologist, Samuel Johnson: "Reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.''

    For additional analysis of the 14th Amendment and the Reconstruction era, see Stanford Law School Professor Pamela Karlan's comments at a 2010 ACS National Convention plenary panel discussion here.

  • August 10, 2010
    The cyberspace advertising giant Google is facing internal struggles over how "far should it go in profiting from its crown jewels - the vast trove of data it possesses" about users' online activities, reports The Wall Street Journal's Jessica E. Vascellaro.

    Reporting on a 2008 confidential "vision statement," the WSJ says the document provides "a candid, introspective look at Google's fight to remain at the vanguard of the information economy."

    The Google document asserts that the company's database is "the BEST source of user interests found on the Internet," and advances ideas on how to take advantage of the situation, WSJ reports.

    The article continues:

    The most aggressive ideas would put Google at the cutting edge of the business of tracking people online to profit from their actions. A data-trading marketplace, for instance, would allow personal information from many sources - including Google - to be combined and used for highly personalized tracking of individuals.

    Beyond information gleaned from the vision statement, interviews with current and past Google workers reveal an internal and ongoing struggle over concerns about users' privacy and the potential for company profits.

    "In short," the WSJ piece concludes, "Google is trying to establish itself as the clearinghouse for as many ad transactions as possible, even when those deals don't actually involve consumer data that Google provides or sees. The further step in that progression would be for Google to become a clearinghouse for everyone's data, too. That idea, also laid out in the vision statement, is still being considered, people familiar with the talks say. That would put Google - already one of the biggest repositories of consumer data anywhere - at the center of the trade in other people's data as well."


  • August 10, 2010
    Following a tired and cynical election-year tactic politicians are openly talking about amending the Constitution, writes University of Baltimore School of Law Professor Garrett Epps for the Atlantic.

    Like amendments promoted to ban flag burning and restrict marriage, senators, such as Lindsey Graham of South Carolina of have garnered national attention for disparaging the citizenship clause of the 14th Amendment, suggesting its repeal or hearings to consider altering it. The clause guarantees citizenship to all people born in the United States.

    Epps writes that these lawmakers are showing "contempt for the document American office holders are sworn to uphold," and that too many citizens and "even some judges, seem not to understand the function of this amendment. It is, not to put too fine a point on it, the part of the Constitution that makes America a democracy. We meddle with it at our peril."

    Epps continues:

    The Fourteenth Amendment is the only place in the Constitution where the idea of human equality is recognized. Certainly the Framers of 1787 never endorsed it: they constructed a government with classes of people carefully defined in a hierarchy, beginning with "free persons" and descending through "Indians not taxed" to "other persons," the noxious euphemism they used for "slaves." They put in place a Bill of Rights that limited the federal government but placed no bar in the path of oppressive state laws restricting free speech, voting rights, or due process.

    At the end of the Civil War, the victorious Union Congress created an amendment (by far the longest and most important in the Constitution) to ensure democratic politics and human rights wherever the American flag flies. Section One of the Amendment does the following. First, it makes every person born in the U.S. a citizen of the nation and of the state in which he or she lives. (This reversed the Supreme Court's Dred Scott decision that citizenship was a gift of the majority to favored groups or races.) Second, it applies the Bill of Rights to all persons in the states; and third, it bars any state from denying any person "the equal protection of the laws."

    The professor notes that if the nation were to support yanking citizenship from "children born here, we create a new class of untouchables, born to suffer and serve."

    He continues, "The children of immigrants are, whether their parents are ‘legal' or ‘illegal,' our fellow Americans. They've violated no law, and committed no crime."

    During a panel discussion at the 2010 ACS National Convention on the roles of Congress and the Courts, Pamela Karlan, a Stanford Law School professor, noted that the Reconstruction Amendments - the 13th, 14th and 15th Amendments - provided "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection, and the due process clause." The framers of the Reconstruction Amendments, Karlan continued, "gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off the fumes of Brown against Board of Education, that's why it has such power in country." But Karlan noted, during the middle of Reconstruction, the high court, was "living off the fumes of Dred Scott," and the high court "was not the place you went to get equality, you went to the legislature." See here for video of the entire panel discussion.