New York Law School

Archive for 2010

13th Amendment: Modern Slavery

The 13th amendment is the only constitutional provision that can be applied to private action. Shocking to hear if you have never studied constitutional law. But more shocking, even for those who have studied it, is the idea that the despite this power the 13th amendment is not being used to combat modern day slavery. A clear prohibition of the institution of slavery is recognizable from the language of the amendment itself. However the Supreme Court in The Civil Rights Cases, 103 U.S. 3 (1883), recognized that the 13th amendment also provides Congress with the power to “pass all laws necessary and proper for abolishing all “badges and incidents of slavery.” Thus the power of the 13th amendment is two-fold and sweeping. First it forbids outright slavery and involuntary servitude. Second, it allows for passage of laws that prohibit any activity which may be the effect of slavery. In order to apply the 13th amendment to modern day slavery, each clause must be analyzed separately because each applies to different forms of modern slavery.

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The War on Drugs: A Legalized Form of Discrimination on the Basis of Race

In South Carolina, police in SWAT gear entered a high school, specifically targeting African American students, holding guns to students’ heads as they searched for illegal drugs. No drugs were found in this raid. In Texas, 15 percent of all of the young African American males living in one city were arrested in a drug sweep predicated on merely one tip from an informant. All of the men were innocent. Although these stories are alarming, they are not unique. All across the country African Americans are searched, detained, arrested, and incarcerated in furtherance of the War on Drugs. Masked by facially race neutral policies and procedures, the War on Drugs has become a form of legalized discrimination against minorities, specifically African Americans. We need look no farther than our jails and prisons to see the effect of the racially discriminatory policies of the War on Drugs. In some parts of…

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Unfulfilled Promises: An Analysis of Why the Thirteenth Amendment Has Been Underutilized and What We Can Do About It

Given its extraordinary breadth and ambition, someone who knew nothing about the Thirteenth Amendment beyond its text would expect it to have played a much larger role in this country’s struggle for racial justice than it has. It is baffling that the amendment’s protection against the public and private “badges and incidents” of slavery has had almost no bearing on most of the civil rights movement’s hallmark legal and legislative victories and defeats. Indeed, there is even reason to think that those who actually drafted the Thirteenth Amendment expected their labor to have had a much more profound legacy than it has. While heralding the formal and constitutional end to the institution of slavery is no small feat, the Thirteenth Amendment has been prevented from truly addressing the “badges and incidents” of slavery since very near to its ratification. Still, in light of this nation’s lingering racial caste system and…

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Identity, Judicial Philosophy, and Decision-Making

Leading up to and during her confirmation hearings, now-Justice Sonia Sotomayor received a significant amount of criticism for her 2001 remark that a “wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This statement stoked a greater debate among the American public regarding whether personal background has a place in judicial decision-making. Those who criticized Justice Sotomayor’s statement saw it as the first step toward bias or a basis for judicial activism. Those who agreed with Justice Sotomayor pointed to the fact that law, while often abstract, has real-world implications. Certainly there is value in the discussion about whether judges should rule with…

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Federal Appeals Court Rules Washington Voting Law Violates Federal Voting Rights Act

On January 5, 2010, the 9th Circuit Court of Appeals granted summary judgment to a minority group of Washington citizens who had been convicted of felonies and alleged that the state’s felon disenfranchisement provision violates §2 of the Voting Rights Act due to racial discrimination within Washington’s criminal justice system. The case is entitled Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010).

The law as set forth in Washington’s constitution reads as follows: Article VI, § 3 provides: “All persons convicted of infamous crime unless restored to their civil rights . . . are excluded from the elective franchise.” An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Wash. Rev. Code § 29A.04.079. Read more