Chapman Undergraduate Law Review | Volume II | Issue I

CHAPMAN UNIVERSITY UNDERGRADUATE LAW REVIEW

VOLUME II, ISSUE I

MAY 2023

Editor-in-Chief

Cynthia Le

Editorial Board

Aliyah E. Ramirez

Ella Campbell

Huw Pickering

Roksana Gorgolewski

Stephanie Yanes

Tyler Drake Executive Board

Nicole Drew, President

Samuel Andrus, Vice President

Abigail Ageshen, Secretary

Fabian Carlo Respicio, Director of Recruitment

Owen Schalk, Director of Public Relations

Daisy Davila, Director of Diversity, Equity, and Inclusion

Dear Reader,

After months of immense dedication and determination, I am honored to present to you the second issue of the Chapman University Undergraduate Law Review (CU ULR). On behalf of both the Executive and Editorial Boards, we are grateful to have worked with such a diverse and incredible team of writers from across the nation. As our country’s legal structures and norms continue to evolve, we wanted to provide undergraduate students from all walks to life with the invaluable opportunity to engage in scholarly discourse surrounding the most relevant and pressing matters of our time.

In the following pages, you will read the legal perspectives from a group of talented authors from undergraduate institutions across the country. This issue consists of eight articles that extensively discuss various important aspects of the law in the context of the Constitution. I hope that the topics presented in the forthcoming pages will provide a foundation for deep and intellectual thought.

Lastly, I extend my greatest gratitude to the Editorial Board and writers for their persistence and dedication to this journal. I thank them all for your hard work during these past few months. It has been a privilege to get to work with a group of such talented and diligent writers and editors.

As I now sign off from the CU ULR and prepare to leave Chapman University, it is my hope that this publication will continue to engage in complex legal discourse in the years to come. In the short two years that I have edited for the journal, we already come so far. I am so proud of what everyone has accomplished; I hope that the topics presented encourage you to dive deeper into these discussions surrounding the law.

Sincerely,

Cynthia Le Editor-in-Chief 2022-23

CHAPMAN UNIVERSITY UNDERGRADUATE LAW REVIEW

A Bright Line Distinction: Necessary to Maintain the Nurseries of Democracy and Protect Students’ Freedom of Speech Rights

Affirmative Action and Constitutionality

Abortion Rights in the Supreme Court: How Roe v. Wade’s Grounding of Abortion Rights in Privacy Rights was Not a Strong Enough Foundation to Prevent Its Overturn

Free Speech on the Internet: Section 230’s Future as Precedent

The Constitutionality of the 2022 Assault Weapons Ban

Cruel and Unusual Prisons: A History of American Penology and the Use of the Eighth Amendment as a Gateway for Prison Reform

Congress, States, and the Constitution: The Reform of Immigration Law

A Bright LineDistinction: Necessary to Maintain the Nurseries of Democracyand Protect Students’ Freedom of Speech Rights

Julianna D. Pedone

Edited by Huw Pickering

In Mahanoy Area School District v. B.L (2021), the Supreme Court addressed the issue of whether the First Amendment bars public school officials from disciplining students for offcampus speech. A female student at Mahanoy Area High School shared a profane post on social media directed at her high school after she had failed to secure a spot on the varsity cheerleading team. In response, the school administration suspended the student, B.L., from cheerleading for a year. B.L sued the school, claiming that her suspension violated her First Amendment right to free speech. In an 8-1 decision in favor of B.L., the Court held that the suspension violated her First Amendment right. According to the Court’s ruling in Tinker v. Des Moines Independent Community School District (1969), schools may regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”1Applying the Tinker standard, the Court found that B.L.’s post did not cause a significant disruption or infringe on others’ rights. Therefore, her off-campus speech was protected under the First Amendment. The decision in Mahanoy has proved to be a critical ruling in protecting the right to free speech for students. However, this review argues that the Court’s opinion fails to provide clear guidelines for when and how public-school officials may discipline students for off-campus speech.

1 See David L. Hudson, Jr., Tinker At 50: Student Activism On Campus: Unsettled Questions In Student Speech Law, 22 U. Pa. J. Const. L. 1113, 1130 (June, 2020).

The Supreme Court’s ruling in Mahanoy Area School District v. B.L (2021) threatens the viability of public schools to remain the nurseries of democracy in America.2 Mahanoy is the first ruling in 50 years in which the Supreme Court upheld students' right to speech. Additionally, it is also the high court’s first ruling involving student off-campus expression.3 However, the majority opinion is too ambiguous to act as a practical guideline for school officials, students, and lower courts.4 The opinion allows schools to utilize Tinker’s more relaxed constitutional standard of “substantial disruption” to oversee their students' expression wherever and whenever it might occur.5 The Court also fails to provide specific limits to prevent schools from overreaching their authority over students’ speech, other than warning judges to “be careful”.6 This serves as an advantage to school officials who may utilize the ambivalent nature of the opinion to identify, discipline, and silence specific groups or viewpoints.7 The expansion of school officials’ authority leaves students uncertain about what remaining speech rights they retain.8 The Supreme Court’s ambiguous opinion generates additional instability and confusion in an arguably unclear area of law.9

This note argues that the vagueness in the Court's decision in Mahanoy will allow school officials to erode students’ freedom of speech. The Court’s reliance on the Tinker test of “substantial disruption” does not provide a sufficiently concrete distinction between “offcampus” speech and “on-campus” speech in the current digital age. Therefore, there will be increased efforts to regulate off-campus speech, even if the speech deals with a political or religious issue.10 Thus, the Supreme Court must create a clearer distinction between “offcampus” speech and “on-campus” to provide an intelligible principle to which school officials, students, and lower courts can refer when examining individual cases. The highest court may look to the Third Circuit Court for counsel on how to approach this issue. The Third Circuit is

2 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 1 (2022).

3 See Martha McCarthy, Social media, students, and the law, 10 Laws 81, 1 (2021).

4 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 1 (2022).

5 See Mary-Rose Papandrea, Mahanoy v. B.L. & first amendment “leeway,” 2021 The Supreme Court Review 53–97, 1 (2022).

6 See Mary-Rose Papandrea, Mahanoy v. B.L. & first amendment “leeway,” 2021 The Supreme Court Review 53–97, 2 (2022).

7 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 16 (2022).

8 See Guiles v. Marineau, 461 F.3d 320, 2006 U.S. App. LEXIS 22235 (United States Court of Appeals for the Second Circuit August 30, 2006, DecIded); See Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century, 36 PEPP. L. REV. 273, 288 (2009).

9 Kristi L. Bowman, Public School Students' Religious Speech and Viewpoint Discrimination, 110 W. VA. L. REV. 187, 222 (2007).

10 See Frank D. LoMonte, Censorship Makes the School Look Bad: Why Courts and Educators Must Embrace the "Passionate Conversation", 65 Wash. U. J.L. & Pol'y 91, 98 (2021).

the only court that has comprehensively described a guideline for how to approach off-campus student speech as protected under the First Amendment.11

The first section of this note will discuss Supreme Court cases that have addressed students’ right to free speech in order to situate Mahanoy in existing literature and the current state of the law. Among those discussed include Tinker v. Des Moines Independent Community School District (1969), the most prominent case in regards to free speech protection for students.12 This note will also address additional cases such as Bethel v. Fraser (1986), Hazelwood v. Kuhlmeier (1988), and Morse v. Frederick (2007) to demonstrate the erosion of the expansive First Amendment freedoms that Tinker granted to students in the subsequent decades.13 A review of these cases will clearly demonstrate the lack of explicit guidance regarding the applicability of Tinker, Fraser, Hazelwood and Morse to off-campus speech.14 This leaves administrations, courts, state governments, parents and, most importantly, students in the dark about the extent to which the First Amendment protects off-campus student speech.15

The second section will analyze the Third Circuit’s approach to addressing students’ freedom of speech. A review of Layshock ex rel. Layshock v. Hermitage School District (2007) and J.S. ex rel Snyder v. Blue Mountain School District (2010) will demonstrate the rationale that the Third Circuit utilized to support its conclusion in Mahanoy. The Third Circuit court decisively ruled that Tinker does not apply to student expression initiated off school grounds.16 Rather, students’ off-campus speech is subject to the same First Amendment protections as “speech by citizens in the community at large”.17 In regards to on-campus speech, the burden of proof falls onto school administrators to demonstrate that a student’s speech causes a substantial disruption.18 The justices of the Supreme Court did not uphold the Third Circuit’s reasoning in their majority opinion. However, the Third Court’s attempt to provide some clarity on the issue of free speech in the digital age was a step in the right direction to defining what protections students retain in regards to their most fundamental right.

The final section of this note will reintroduce the main issues posed by the ruling in Mahanoy. It will first begin with the potential repercussions that may arise due to the lack of guidance that the Supreme Court provided in their majority opinion of Mahanoy. Thus, the Third Circuit’s approach is the best solution thus far proposed to this issue. The Third Circuit’s majority opinion provides a stance on how schools should approach student’s free speech in the

11 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, (2022)

12 See Laura Rene McNeal, From Hoodies to Kneeling During the National Anthem: The Colin Kaepernick Effect and Its Implications for K-12 Sports, 78 La. L. Rev. 145, 166 (2017).

13 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 2 (2022).

14 See Ashley Waddoups, COMMENT: Schools to Students: Post That, and You Won't Play When Schools Condition Students' Participation in Extracurricular Activities on "Appropriate" Social Media Use, 2019 B.Y.U.L. Rev. 837, (2019).

15 See Id.

16 See Martha McCarthy, Social media, students, and the law, 10 Laws 81, 7 (2021).

17 See Id.

18 See Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 399 (5th Cir. 2015).

digital era. The clear distinction of when and where the school can punish a student for their speech provides a proper guideline for courts, officials, and students to refer to in this murky area of law.

II. BACKGROUND TO STUDENTS’ FREE SPEECH RIGHTS

The following section situates the Mahanoy ruling in existing literature and the state of law leading up to its decision. Before Tinker v. Des Moines Independent Community School District (1969), which is regarded as the pinnacle of protection for student speech, was decided, common law dictated the rights of students.19 Common law asserted that students in public schools were under the discretion of their teachers and administrators of the school, because the schools served in loco parentis, in the “role of the parent”.20 However, Tinker expanded the rights of students in public schools, and afforded them more protections from school officials' encroachment on their First Amendment rights. However, although Tinker undoubtedly expanded on the rights of students’ free speech, these rights were eroded over the next few decades, as demonstrated in the subsequent cases. Thus, leading up to Mahanoy, courts had rarely ruled in favor of students. Rather, courts allowed school officials to consider students’ free speech cases based on the officials’ best discretionary application of Tinker’s “substantial disruption” test.

A. Tinker v. Des Moines Independent Community School District (1969)

Tinker is considered to be the pinnacle of protection for student speech.21 Furthermore, the Tinker ruling served as the main precedent for the Mahanoy majority opinion. According to the facts of the case, a group of students in Des Moines, Iowa planned to wear black armbands to publicly demonstrate their support for a truce in the Vietnam War.22 The school that the students attended learned of their plans and created a school policy which declared that anyone who wore a black armband to school would be asked to remove it.23 If the students refused to remove the armbands, according to the new school policy, they would be suspended.24 Nevertheless, several students went to school wearing the armbands and were subsequently suspended. 25 The parents of the students sued the school for violating their children’s First Amendment right of freedom of

19 See Robert Kim, Under the law: Regulating student speech in the Snapchat era, 102 Phi Delta Kappan 62–63 (2021).

20 See Perry A. Zirkel & Henry F. Reichner, Is the In Loco Parentis Doctrine Dead?, 15 J.L. & EDUC. 271, 271

76 (1986).

21 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 148 (2022).

22 See Robert Kim, Under the law: Regulating student speech in the Snapchat era, 102 Phi Delta Kappan 62–63, (2021).

23 See Id.

24 See Id.

25 See Id.

expression.26 The district courts ruled against the students, claiming that the conversations that arose as a result of the students wearing the armband would cause a substantial disruption to the educational environment.27 The students appealed to the Court of Appeals, which remained split on their decision.28 Finally, the case was granted certiorari by the Supreme Court who overturned the district court’s decision and ruled in favor of the students.29

The Supreme Court upheld the rights of students to wear black armbands to protest the Vietnam War and to mourn those who died.30 According to the high court, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”31 School officials are limited to regulating speech that substantially interferes with school operations.32 In other words, public schools have the authority to discipline students for speech that occurs on campus and disrupts the school environment.33 However, students retain the same speech rights as adults when they are off-campus.34 Thus, in general, students possess more freedom of speech protection off-campus than they do on-campus.35

However, in the decades following Tinker, school officials have made increasing attempts to claim the authority to regulate student speech made off-campus, after school hours.36 For example, 2015’s Bell v. Itawamba County School Board saw the Fifth Circuit Court of Appeals uphold the regulation of a student’s speech, namely a seemingly profane rap song, that was created off-campus and without school. 37 Furthermore, the presence of social media in the contemporary digital age has caused the boundary between on-campus and off-campus speech to become increasingly blurred.38 Thus, this unclear distinction poses a challenge to the application of Tinker’s traditional framework. The Tinker ‘test’ is premised on the location of a student’s speech as a boundary for regulation.39 This boundary has been blurred in the age of social media, and thus school officials have taken advantage of the lack of clarity to punish students as they

26 See Id.

27 See 258 F. Supp. 973 (S.D. Iowa 1966).

28 See John W. Johnson, Behind The Scenes In Iowa’s Greatest Case: What Is Not In The Official Record Of Tinker

V.Des Moines Independent Community School District 48 Drake L. Rev. 473, 481-82 (2000).

29 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 3 (2022).

30 See Robert Kim, Under the law: Regulating student speech in the Snapchat era, 102 Phi Delta Kappan 62–63, (2021).

31 See Id.

32 See 393 U.S. 513 (1969).

33 See Id

34 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 9 (2022).

35 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 3 (2022).

36 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 8 (2022).

37 See Robert Kim, Under the law: Regulating student speech in the Snapchat era, 102 Phi Delta Kappan 62–63, (2021).

38 See Michael J. Grygiel, Back to the Future: The Second Circuit’s First Amendment Lessons for Public Student Digital Speech, 71 Syracuse L. Rev. 1, 5 (2021).

39 See Id

deem fit.40 Courts and school officials alike have begun to apply the Tinker standard to speech that has the potential to cause a disruption and has a connection to student’s social media, as well as events at school.41 In fact, the Second, Fourth, Fifth, Eighth, and Ninth federal appellate courts have agreed that “under Tinker, schools may discipline off-campus speech that has a close nexus to the school environment.”42 The erosion of the protections afforded under Tinker are most notably demonstrated by the subsequent cases in this section’s discussion.

B. Bethel v. Fraser (1986)

The first case that demonstrates the erosion of students’ rights to free speech is Bethel v. Fraser (1986).43 According to the facts of the case, Matthew Fraser, a public high school student, presented a sexually suggestive speech at a school-wide assembly, many of those who were in attendance being 14-year-olds.44 School officials suspended Fraser for violating the code of conduct of the school. The code prohibited students from conducting themselves in a way that interferes with educational purposes, including the use of obscene language.45 Fraser sued the school on the claim that they had violated his First Amendment right to free speech. The district court and the Ninth Circuit ruled in favor of Fraser, arguing that the suspension was in violation of his rights. The case was appealed to the Supreme Court. In their decision, the highest court addressed whether or not the First Amendment prevents a school district from disciplining a student for using obscene language in a school assembly.46

Ultimately, the Supreme Court ruled against Fraser and upheld the suspension.47 Thus, the district court and the Ninth Circuit’s decisions were overturned.48 The Supreme Court argued that the speech in Fraser did align with that of the fact pattern in Tinker. The speech in Fraser was not of a political nature, and contained inappropriate content.49 Therefore, it did not meet the Tinker standard.50 Furthermore, the justices in the majority opinion claimed that the Tinker decision did not prohibit school officials from punishing “offensively lewd and indecent

40 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 9 (2022).

41 See DavId L. Hudson, Jr., Tinker At 50: Student Activism On Campus: Unsettled Questions In Student Speech Law, 22 U. Pa. J. Const. L. 1113, 1130 (June, 2020).

42 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 12 (2022) (discussing case law regarding students’ free speech rights post Tinker)

43 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 2 (2022).

44 See Bethel School District v. Fraser, 478 U.S. 675 (1986).

45 See Id., 678.

46 See Id., 678.

47 See 258 F. Supp. 971, 972 (S.D. Iowa 1966).

48 See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 680-81 (1986).

49 See Id.

50 See Id.

speech”.51 Therefore, the ruling in Fraser demonstrates how the rulings in the decades following Tinker undermined the expansive First Amendment freedoms that students had gained.

C. Hazelwood v. Kuhlmeier (1988)

The second case that demonstrates the erosion of students’ rights to free speech is Hazelwood v. Kuhlmeier (1988).52 This case centers around articles written by students in a school-sponsored newspaper, The Spectrum. 53 The principal of the high school deemed several of the articles produced by these students to be too inappropriate for publication in the schoolnewspaper.54 Therefore, the articles that were found to be unsuitable were withheld from publication.55 The students who ran the school newspaper filed a case against the school.56 They claimed that the censorship of some of the articles violated their First Amendment rights.57 The district court ruled in favor of the school. However, the Court of Appeals for the Eighth Circuit ruled in favor of the students, reversing the district court’s decision.58 The Eight Circuit reasoned that the school newspaper appeared in a public forum and, therefore, it could not be censored by school officials unless it met Tinker’s “substantial description” test.59 In the Eighth Circuit’s opinion, the student-led newspaper would not have materially or substantially disrupted the school’s operation.60 Therefore, the school was not acting within their constitutional rights to regulate the school newspaper.

However, the Supreme Court ultimately ruled in favor of the Hazelwood School District.61 In their opinion, the actions of school officials at Hazelwood East High School were not in violation of students’ first amendment rights.62 Specifically, the Supreme Court found that school officials have the authority to exercise editorial control over school sponsored materials.63 This editorial control includes, but is not limited to, a review of the style and content of speech in school-sponsored materials.64 The editorial control of school officials is limited to actions that can be reasonably connected to “legitimate pedagogical purposes”.65 Therefore, the Supreme

51 See Bethel School District v. Fraser, 478 U.S. 678 (1986).

52 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 2 (2022).

53 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 4 (2022).

54 See Id.

55 See Id.

56 See Id.

57 See Id.

58 See Hazelwood, 484 U.S. 265–66.

59 See Id. 265

60 See Id.

61 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 4 (2022).

62 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 150 (2022).

63 See Hazelwood, 484 U.S. 273.

64 See Id.

65 See Hazelwood School District v. Kuhlmeier, 484 U.S. 273 (1988).

Court’s willingness to allow school officials to define what they deem to be “pedagogical purposes” further demonstrates the erosion of students’ First Amendment rights.66 Rather than creating a bright-line test for schools to adhere to, the Supreme Court merely requires school officials to create a reasonable connection for their interference with students’ First Amendment rights. Thus, this demonstrates another instance of erosion of rights gained under Tinker. 67

D. Morse v. Frederick (2007)

The third case that demonstrates the erosion of students’ rights to free speech is Morse v. Frederick (2007).68 Morse, most commonly referred to as the “BONG HITS 4 JESUS” case, is the most recent precedent that shaped student free speech.69 According to the facts of the case, Joseph Frederick, a student, displayed a 14-foot banner that read “BONG HITS 4 JESUS” as he and his classmates were attending the Olympic Torch Relay in their hometown of Juneau, Alaska.70 Although Frederick’s controversial speech occurred off-campus, the principal of Frederick’s school, who was in attendance at the rally, ordered Frederick to lower the banner.71 However, Frederick refused to do so, and was consequently suspended for 10 days because his actions were found to be in violation of the school code of conduct.72

Frederick sued the school district, claiming that the suspension was in violation of his First Amendment rights.73 The district court ruled in favor of the school; however, the Court of Appeals for the Ninth Circuit reversed this ruling.74 The Ninth Circuit court ruled that Frederick qualified for the protections provided by the Tinker “substantial disruption” test and that the school had failed to make a solid case that proved that Frederick’s actions met that test.75 However, the Supreme Court reversed the Ninth Circuit’s decision and ruled in favor of the school board, upholding Frederick’s suspension.76 In their opinion, the majority found that the rights of students in public schools are not as expansive as those of adults.77 Therefore, the highly protective ruling of Tinker does not always apply. The Supreme Court’s ruling in this case once again demonstrates a pattern of erosion for students' First Amendment rights in the decades following the Tinker ruling.

66 See Id.

67 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 2 (2022).

68 See Id.

69 See Morse v. Frederick, 551 U.S. 393 (2007).

70 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 5 (2022).

71 See Morse v. Frederick, 551 U.S. 398 (2007).

72 See Id.

73 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 5 (2022).

74 See Morse v. Frederick, 551 U.S. 399 (2007).

75 See Id.

76 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 5 (2022).

77 See Morse v. Frederick, 551 U.S. 408 (2007).

E. Summary and Pattern of Deference to School Officials

Therefore, the Supreme Court cases in the decades following the Tinker decision demonstrate the erosion of students’ First Amendment rights. In 1969, all public school students received concrete validation of their speech rights in the Tinker decision.78 However, these rights were limited in the 1980s, as demonstrated by the Bethel and Hazelwood decisions.79 In 2007, Morse demonstrated the further erosion of the protections that students had previously enjoyed under the Tinker standard.80 Additionally, the aforementioned cases demonstrate the willingness of the Court to defer to school officials to determine what constitutes a “substantial disruption”.81 Federal courts have consistently decided in favor of school districts in cases involving the Tinker “substantial disruption” test.82 The pattern of favoring school officials has led to an expansion of authority for schools. Specifically, schools have expanded their authority to include the power to decide what actions have the potential to be a distribution to the school environment.83 Therefore, the Court’s deference to school officials has led to a decrease in the protections for student speech that were created by the Tinker ruling. Thus, students in public schools are losing their First Amendment rights because of the Court’s negligent application of Tinker’s material and substantial disruption standard.84 In fact, the only cases that the Supreme Court has ruled in favor of students have facts that closely resemble that of Tinker. 85 This poses a significant problem for courts, administrations, state governments, parents, and most importantly, students.86 The lack of clear guidelines regarding the applicability of Tinker, Fraser, Hazelwood, and Morse to off-campus speech results in these communities remaining in a state of confusion about the extent to which the First Amendment protects off-campus student speech. 87 However, only the Third Circuit has created a clear and comprehensive answer to this issue, which will be discussed in the next section.88

78 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 1 (2022).

79 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 5 (2022).

80 See Id.

81 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 7 (2022).

82 See Jenny Diamond Cheng, DecIding Not To DecIde: Mahanoy Area School District v. B.L and the Supreme Court’s Ambivalence Towards Student Speech Rights, 74 Vand. L. Rev. En Banc 511, 512 (2021).

83 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 10 (2022).

84 See Dan V. Kozlowski, Toothless Tinker: The Continued Erosion of Student Speech Rights, 88 J&MC Quarterly 352, 353 (2011).

85 See Sean R. Nuttall, Symposium: The Hart-Fuller Debate at Fifty: Note: Rethinking the Narrative on Judicial Deference in Student Speech Cases, 83 N.Y.U.L. Rev. 1282, 1300 (2008).

86 See Ashley Waddoups, Schools to Students: Post That, and You Won't Play When Schools Condition Students' Participation in Extracurricular Activities on "Appropriate" Social Media Use, 2019 B.Y.U.L. Rev. 837, 845 (2019).

87 See Watt Lesley Black, Jr. and Elizabeth A. Shaver, The First Amendment, Social Media, and the Public Schools: Emergent Themes and Unanswered Questions, 20 Nev. L.J. 1, 27 (2019).

88 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 145, 153 (2022).

III. THIRD CIRCUIT’S APPROACH

The following section analyzes the only bright-line distinction made thus far regarding students’ free speech rights in the digital age: the Third Circuit’s ruling in Mahanoy. 89 It begins with providing context to how the Third Circuit approached the issue of students’ free speech right in previous student speech cases, Layshock ex rel. Layshock v. Hermitage School District (2011) and J.S. ex rel Snyder v. Blue Mountain School District (2010). Specifically, the Third Circuit’s reasoning in the cases of Layshock and J.S. ex rel Snyder set new limitations for schools and administrators with regard to off-campus student speech.90 Additionally, the Third Circuit’s decisions in the aforementioned cases distinguished a new category of protected student speech: vulgar speech. Created off-campus and having found its way onto school grounds, such vulgar speech is nevertheless protected under the First Amendment.91 Thus, the Third Circuit’s decisions in Layshock and J.S. ex rel Snyder set the stage for its decision in Mahanoy 92 Ultimately, in Mahanoy, the Third Circuit found that students’ off-campus expression is afforded the same protections as citizens in the community at large.93 Thus, school administrators take on the burden to prove that a “substantial disruption” was caused by a student’s free speech in order to justify disciplining said student.94

A. Layshock ex rel. Layshock v. Hermitage School District (2011)

The first case that provides context to the Third Circuit’s decision in Mahanoy is Layshock ex rel. Layshock v. Hermitage School District (2011). According to the facts of the case, Justin Layshock, a student at Hickory High School, created a fake profile on MySpace in 2005 that portrayed the high school’s principal in a humiliating and demeaning light.95 The fake profile that Layshock created inspired a domino effect, and soon other students began to create more fake profiles of the principal, each more vulgar than the last.96 These fake profiles were accessed in computer labs on school property and, in order to limit students’ access to these fake profiles, computer programming classes were canceled for five days.97 In response to his actions, the school administration suspended Layshock for ten days and banned him from partaking in extracurricular activities and his class graduation.98 Layshock’s parents sued the school in federal

89 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 157 (2022).

90 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 153 (2022).

91 See Id.

92 See Id.

93 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 158 (2022).

94 See Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 399 (5th Cir. 2015).

95 See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 207-208 (3d Cir. 2011).

96 See Layshock, 650 F.3d 208-209

97 See Id.

98 See Id. at 209-210

court, arguing that the First Amendment protected Layshock’s speech in the fake MySpace profile.99 The district court ruled in favor of Layshock, asserting that the school had not sufficiently demonstrated that Layshock’s actions fell under the Tinker “substantial disruption” test.100

The Third Circuit agreed with the district court’s ruling, and its opinion focused on the school’s attempt to draw a “sufficient nexus” between Layshock’s purported activities and the school district.101 According to the Third Circuit, Layshock’s activities would have been punishable under the Tinker test if the school had found a sufficient nexus.102 The school’s argument relied on the fact that the photo of the principal that was featured in the fake profile was accessed on the school district’s website.103 However, the Third Circuit did not find this argument to be persuasive.104 In support of its reasoning against the school, the Third Circuit referred to Thomas v. Board of Education (1979).105 This case, decided by the Second Circuit, found that there was no sufficient connection between a given school and its students’ creation of an off-campus publication.106 The Third Circuit found that the alleged nexus argued by the school district in the Layshock case was less apparent than that in Thomas. 107 Therefore, it rejected the school district’s argument that Layshock’s actions were punishable because the material was accessed on school property. In its decision, the Third Circuit warned of the dangers that may arise by allowing the state to “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.”108 Thus, the Third Circuit's ruling in Layshock demonstrates that school officials may only punish off-campus student expression in very limited circumstances.109

B. J.S. ex rel Snyder v. Blue Mountain School District (2010)

The second case that provides context to the Third Circuit’s decision in Mahanoy is J.S. ex rel Snyder v. Blue Mountain School District (2010). The facts of the case are remarkably similar to Layshock. 110 J.S, a student, created a fake profile for the principal of her school.111 Once J.S was discovered to be the creator of this fake account, she was suspended from school for ten days.112 J.S’s actions purportedly caused disruption in class and occupied the sessions of

99 See Id. at 211

100 See Id. at 211

101 See Id. at 214

102 See Id. at 214-216

103 See Id. at 214

104 See Id. at 215

105 See Id. at 215

106 See Id. at 215

107 See Id. at 216

108 See Id.

109 See Id. at 219

110 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 155 (2022).

111 See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 920–23 (3d Cir. 2011).

112 See Id.

school counselors.113 In response to her suspension for off-campus speech, J.S. sued the school, claiming it violated her First Amendment rights.114 The district court ruled in favor of the school, arguing that J.S’s speech constituted the Fraser exception to Tinker for vulgar speech.115 However, the Third Circuit rejected the district court’s argument and decided in favor of J.S.116 In its opinion, the Third Circuit ruled that J.S.’s speech did not generate any foreseeable “substantial disruption”.117 Furthermore, the “narrow exceptions” of the rule, namely the cases of Fraser, Hazelwood, and Morse, did not apply to J.S.’s case.118 The Third Circuit’s opinion also set guidelines for when the Fraser exception could be applied to cases regarding students’ free speech, namely introducing the consideration of whether or not the speech occurred on campus.119 The Third Circuit concluded that if the speech occurred off-campus, the Fraser exception for lewd speech could not apply.120 Therefore, according to the Third Circuit, the precedents of Fraser, Hazelwood, and Morse only apply to on-campus speech.121 The Third Circuit’s conclusion regarding the Fraser exception foreshadowed its reasoning in Mahanoy 122 The Third Circuit decided Mahanoy against the backdrop of the aforementioned cases, ultimately holding that Tinker does not apply to off-campus speech.123

C. Ruling in Mahanoy Area School District v. B.L.

The Third Circuit’s ruling in Mahanoy Area School District v. B.L provides clear guidelines for courts, school officials, and students to adhere to when evaluating whether or not a student’s speech is protected under the First Amendment. According to the facts of the case, B.L., a student at Mahanoy Area High School, posted a picture of herself on Snapchat with a vulgar caption that conveyed her frustration after failing to gain a place on her school’s varsity cheerleading team.124 None of B.L.'s Snapchats explicitly mentioned her school’s name.125 The photo was viewed by over two hundred students, some of whom reported B.L.’s post to the school administration.126 B.L. was subsequently suspended from her school’s cheerleading team as a consequence of her actions, as the administration claimed she had broken the school’s code of conduct.127 B.L. sued the school, claiming that her suspension was in violation of her First

113 See Id. at 921-23

114 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 155 (2022).

115 See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 923 (3d Cir. 2011).

116 See Id. at 927

117 See Id.

118 See Id.

119 See Id. at 932

120 See Id.

121 See Id.

122 See B. L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).

123 See Id.

124 See Mahanoy Area Sch. Dist. v. B.L., 964 F.3d 170, 175 (3d Cir. 2020).

125 See Id.

126 See Id.

127 See Id. at 176

Amendment right to free speech and that the school’s code of conduct was discriminatory and vague.128 The district court ruled in favor of B.L, affirming the position that her suspension was in violation of her First Amendment right.129 The Third Circuit court reaffirmed the district court’s ruling after the school administration appealed.130

In its opinion, the Third Circuit ruled that no clear “substantial disruption” had ensued at the school due to B.L.’s Snapchat.131 According to the precedent of J.S., students’ free speech rights are equal to those of adults in the community at large.132 Therefore, Judge Krause, who delivered the majority opinion for the Third Circuit, stated that B.L. could not be punished for her Snapchat because Tinker does not apply to off-campus speech.133 Thus, the Third Circuit set a new bright-line distinction that previous courts had never explicitly produced before: students’ off-campus speech is afforded the same protection as adults in the community at large.134 Therefore, school administrations have no authority to punish a student for speech that occurs off-campus. Specifically, the Third Circuit defined “off-campus” speech as speech that is “outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”135 Thus, as a whole, off-campus speech is beyond Tinker’s “substantial disruption” test.136 The Third Circuit’s ruling in Mahanoy provided a distinct sense of clarity that previous decisions evidently lacked.137 Ultimately, its ruling allows students to enjoy their free speech rights in a more expansive capacity, while allowing schools to understand their legal abilities to punish student speech.138 Therefore, the Third Circuit's ruling in favor of B.L. provided a clear precedent for courts to follow. When presented with a case that deals with off-campus student speech, including speech occurring on social media, the Third Circuit argues that students are afforded the same right as the community at large.139

IV. IMPLICATIONS OF SUPREME COURT’S RULING IN MAHANOY AREA SCHOOL DISTRICT V. B.L

The following section will clearly explain why the Supreme Court’s majority opinion in Mahanoy merits close attention and analysis. First, this section will summarize the Supreme Court’s decision and reasoning in Mahanoy. Then, it will introduce the implications of the

128 See Id.

129 See Id. at 176-177

130 See Id.

131 See Id. at 195

132 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 158 (2022).

133 See Mahanoy Area Sch. Dist. v. B.L., 964 F.3d 170, 175 (3d Cir. 2020).

134 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 158 (2022).

135 See Mahanoy Area Sch. Dist. v. B.L., 964 F.3d 170, 189 (3d Cir. 2020).

136 See Id.

137 See Id. at 189-190

138 See Id.

139 See Martha McCarthy, Social media, students, and the law, 10 Laws 81, 7 (2021).

Supreme Court’s decision, namely that it is a regression from the clear distinction made by the Third Circuit. Finally, it will argue that the Third Circuit’s reasoning, while controversial, provides a clear guideline for students, courts, and schools to follow when evaluating a student’s right to free speech. Due to the Supreme Court’s vague ruling, school administrations have gained immense authority to regulate school speech, possibly opening a door to discrimination against students with unpopular ideas.

A. The Supreme Court’s Ruling in Mahanoy

The Supreme Court’s decision in Mahanoy not only provided a decision on B.L.’s right to free speech; it also rejected the Third Circuit’s bright-line distinction and called for an increased sense of flexibility in regard to student free speech in the new digital era.140 Justice Breyer, who delivered the highest court’s majority opinion, argued that it would be unwise to create a singular bright-line rule in the face of a constantly-evolving social phenomenon.141 Therefore, the Supreme Court’s opinion relied on the Tinker test of “substantial disruption”.142According to the majority, B.L.’s Snapchat did not create enough of a disruption to the school environment to warrant disciplinary action. Therefore, the school had no authority to suspend B.L. from her cheerleading team.143

Additionally, the Supreme Court identified three characteristics of off-campus speech that differentiate it from on-campus speech.144 Firstly, the highest court claimed that off-campus speech generally falls under the realm of parental responsibility.145 Thus, the school is relieved of its burden to act “in loco parentis”.146 Secondly, schools do not retain the unmitigated right to regulate off-campus speech alongside on-campus speech, as this is the totality of a student’s speech.147 Furthermore, student speech of a political or religious nature must be afforded the highest threshold for regulation off-campus.148 Thirdly and finally, the Supreme Court recognized that the ability of students to express unpopular ideas, whether on- or off-campus, is a fundamental right. Additionally, the ability of students to express unpopular opinions is essential to the character of public schools, as such schools function as the nurseries of America’s democracy.149

140 See Mahanoy Area Sch. Dist. v. B. L., 141 S. Ct. 2038, 2043 (2021)

141 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 165 (2022).

142 See Mahanoy Area Sch. Dist. v. B. L., 141 S. Ct. 2038, 2044 (2021).

143 See Id. at 2045

144 See Id. at 2046

145 See Id.

146 See Id.

147 See Id.

148 See Id.

149 See Dale A. Herbeck, Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights, 56 Communication and Democracy 1, 1 (2022).

The majority opinion also presented examples of categories of speech that are regulatable by school administrations.150 Specifically, off-campus speech that involves bullying, harassment, threats to the school environment, and breaches of school rules are validly regulatable.151 The Supreme Court used these examples to provide insight as to why the Tinker standard should not be excluded from off-campus speech.152 However, the Supreme Court’s distinction between oncampus and off-campus speech was not clear. The majority opinion only provided examples of speech that would be regulatable and did not offer firm boundaries for school administrators to abide by.153 Therefore, it failed to provide schools, students, and courts with the crucial clarification that is needed in the new digital era.154

B. The Implications of Ruling in Mahanoy

On the surface, the Supreme Court’s ruling may appear to be a success for students’ free speech rights; however, its vague reasoning poses several issues for students’ rights moving forward. The Supreme Court’s reasoning in Mahanoy not only rejected the Third Circuit’s clear stance on the applicability of Tinker to off-campus speech; it also failed to provide a concrete distinction between on-campus and off-campus speech.155 Additionally, the Supreme Court failed to establish an alternate approach to addressing the regulation of off-campus student speech.156 While it supported providing students with leeway in their off-campus speech, the Supreme Court only gave broad categories as examples. Therefore, the opaqueness of the decision in Mahanoy will have severe implications nationwide.

First and foremost, the ruling in Mahanoy may lead to a narrowing of students' free speech rights. For example, a school may now claim authority to punish a student for off-campus speech that it deems to fall under one of the broad regulatable categories that the Supreme Court listed in their opinion. The school administrations now have the power to determine what they believe to be speech of a political or religious nature. Thus, as long as they can formulate a reasonable argument to buoy their assertion, a school administration may discipline a student accordingly. Although the Supreme Court’s reasoning may protect against harassment and bullying, it may also be used against certain communities to limit their creative expression if such expression contradicts the prevailing political ideology in the area157. As demonstrated postTinker, the broad definition of “substantial disruption” invited the courts to defer to school

150 See Mahanoy Area Sch. Dist. v. B. L., 141 S. Ct. 2038, 2045 (2021).

151 See Id. at 2045

152 See Id.

153 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 164 (2022).

154 See Id.

155 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 168 (2022).

156 See Id.

157 See Conor Friedersdorf, "Free Speech Is Not Just for Conservatives", THE ATLANTIC, April 3 2023.

officials on the actions of students, even if the speech deals with a political or religious issue.158 Thus, as a result of the highest court’s vague reasoning, the ability of public schools to function as the nurseries of democracy will diminish, as will the unregulated exchange of ideas.

Additionally, the Supreme Court’s reasoning declines to clarify specific instances in which off-campus student speech is protected. Instead, it relies on providing examples of when it is not.159 The three characteristics listed in the Supreme Court’s opinion offered little to no clarity on the protections that students are afforded for speech that occurs off-campus. The Supreme Court owed students and parents clarity on the protections of their most fundamental rights.160 Rather than providing them with such, the Supreme Court merely dismissed the Third Circuit’s opinion as “unwise”.161

Finally, the Supreme Court’s reasoning in Mahanoy falls short for two more reasons. Firstly, because it contains no clear, distinct guidelines on when a student's off-campus speech can be regulated, circuit courts’ decisions will become increasingly inconsistent.162 This will result in unfair and unequal treatment under the law for students, as the decision in their case may be dependent on the circuit court in which their case is tried. Secondly, a lack of uniform guidelines may become an avenue to ensure that cases are evaluated on an individual basis. However, it only serves to enhance confusion surrounding the rights of students for off-campus speech.163 The vagueness of the Supreme Court’s reasoning in Mahanoy can serve to bolster any judge’s argument, either in favor of or against a student.164 Therefore, the decision serves as an augmentation of judicial influence rather than a sound judicial ruling.165

V. CONCLUSION

The Third Circuit’s reasoning in Mahanoy is undoubtedly controversial. However, it has the potential to guide courts, students, and schools on how to approach issues regarding student’s off-campus speech. Only the Third Circuit has attempted to provide definitive answers to the question of students’ rights in the digital era. However, the Supreme Court believes that it would be unwise to issue a bright-line ruling regarding students’ rights to free speech off-campus. Nevertheless, in the age of social media, the call is loud and clear that a bright-line rule is necessary to protect and define students’ rights.

The lack of a bright-line rule only benefits school officials, who will use the vagueness of the Supreme Court’s reasoning in Mahanoy, as they did with Tinker’s “substantial disruption”

158 See Charles R. Waggoner, We should have seen it coming: the Mahanoy decision consIdered, 1 Research in Higher Education Journal, 7 (2022) (discussing law post-Tinker)

159 See Id. at 169

160 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 169 (2022)

161 See Michelle Hunt, OutsIde Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 NW. J. L. & SOC. POL'Y. 146, 165 (2022)

162 See Id. at 169

163 See Id.

164 See Id.

165 See Id.

test, to limit students’ off-campus speech. In doing so, the exchange of free ideas and cultures will be restricted. Thus, the ability of students, who are the future of America, to cultivate opinions in public schools will diminish. Lacking free expression, high schools may only come to serve as chess pieces in the political agendas of school administrators. As seen in several states across the country, politicians and school districts are attempting to censor certain topics that they believe are irrelevant or that contradict the prevailing ideology in their region. Thus, Mahanoy’s vague ruling will only serve to further restrict the ability of students to express their opinions off-campus, as they may be punished for causing a “substantial disruption” to the prevailing ideology.

Undoubtedly, social media is, and will forever be, an important part of society. Therefore, the Supreme Court’s lack of clarity regarding whether school officials can regulate students’ speech on these ‘off-campus’ platforms is concerning. On one hand, allowing school administrators to monitor and regulate off-campus speech can allow them to address bullying, discrimination, and violence more easily. On the other hand, unrestrained regulation of student speech off-campus can also threaten the free expression of students who are of a political or cultural minority in that particular region, and lead to structuralized discrimination by school officials. Although the Supreme Court may not agree with the Third Circuit's bright-line ruling, it must be humble enough to recognize that such a bright line is needed. Today, when social media plays a palpable role in daily life, it is vital that the law catches up with contemporary society. In the end, students may fully exercise their free speech only when the limits on that speech become clear.

Affirmative Action and Constitutionality

Sonali Muthukrishnan

Edited by Stephanie Yanes

Affirmative action does not violate the Equal Protection Clause, instead it addresses persistent systemic inequalities in education that contradict the United States Constitution. The Supreme Court heard Students for Fair Admissions v. Harvard (2022) and Students for Fair Admissions, Inc. v. University of North Carolina (2022) in October. The plaintiff in both cases argued that affirmative action violates the Equal Protection Clause of the Constitution by discriminating against white and Asian American students on the basis of race.1,2 The SFFA hopes to end all race conscious admissions by overturning Gratz v. Bollinger (2003), which allows higher education institutions to use race as a soft factor in their admissions processes.3 California’s public university system, where Black and Latinx students are proportionally underrepresented, exemplifies that eliminating affirmative action directly correlates with a less diverse student body.4 Regents of the University of California v. Bakke (1978) and Gratz v. Bollinger (2003) eliminated mechanical points from the acceptable implementation of affirmative action, molding these policies to fit within constitutional standards.5,6 Additionally, affirmative action passes the strict scrutiny test due to higher education’s vested interest in a diverse student body.7 Precedence establishes that racial belonging is a high enough bar to excuse race conscious admissions. When college admissions are race neutral, students of color are underrepresented, and the diversity of the student population suffers.8 Affirmative action actively addresses systemic inequalities, making sure that the college admissions process aligns with the Equal Protection Clause.

1 See Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 397 F.3d 126 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (U.S. Jan. 23, 2022) (No. 20-1199)

2 ee Students for Fair Admission, Inc. v. University of North Carolina, et al. 567 F.3d 580 (4st Cir. 2021), cert. granted, 142 S. Ct. 895 (U.S. Jan. 23, 2022) (No. 21-707)

3 See Grutter v. Bollinger, 539 U.S. 306 (2003)

4 See Sigal Alon. Race, Class, and Affirmative Action, Russell Sage Foundation (2015), http://www.jstor.org/stable/10.7758/9781610448543.

5 See Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

6 See Gratz v. Bollinger, 539 U.S. 244 (2003)

7 See Lee C. Bollinger, A Comment on Grutter and Gratz v. Bollinger. Col. L. Rev. 103, no. 6, 1588–95 (2003).

8 Alon, supra note 4.

Affirmative action is a procedure that aims to eliminate unlawful discrimination among applications, to remedy the results of such prior discrimination and prevent such discrimination in the future.9 It was originally created to help President John F. Kennedy’s administration address civil unrest associated with the civil rights movement; particularly due to employment discrimination centering around the labor and job markets.10 Through the fair-employment Executive Order 10925 (1961) Kennedy linked the term “affirmative action” to the civil rights enforcement policy. With this administration, employers and contractors tried to attract minority applicants, but their decision processes, regarding hiring and promotions, was not altered. The goal was to prevent workplace and hiring specific discrimination.

President Johnson continued this work with the 1964 Civil Rights Act, which prohibits institutions that receive federal funding from discriminating in employment decisions. This legislation and several executive orders, went further, requiring that institutions apply affirmative action in their recruitment, mentoring, and training programs to ensure equal opportunity.11

A. Green v. New County School Board

In February 1970, the Labor Department required that all federal contractors create a written affirmative action plan to achieve proportional representation for minorities in the workforce. The order coincided with Green v. New County School Board (1968) which directed desegregating school systems to take race into account and charged the school board to produce racial integration in classrooms, teaming, and admin.12 In 1971, SCOTUS affirmed that policies that preference minority populations in workplaces did not violate the Civil Rights Act, which made employment discrimination on the basis of race illegal.13

Through the civil rights movement, colleges across the country started to develop a strategy to implement affirmative action.14 This move to increase diversity was largely caused by student protests that pushed administration to amend systemic discrimination. Universities tried to recruit Black students in the mid-1960s but failed due to the lack of financial aid and color blind admission standards. In the late 1960s, schools decided to take a different approach giving qualified Black applicants a slight edge in college admissions and increasing available financial

9 See Wex, Affirmative Action, Legal Information Institute, https://www.law.cornell.edu/wex/affirmative_action (Last visited Mar. 15, 2023).

10 See Hugh Davis Graham, The Origins of Affirmative Action: Civil Rights and the Regulatory State 50-62 (The Annals of the American Academy of Political and Social Science 523, 1992), http://www.jstor.org/stable/1047580.

11 Alon, supra note 4.

12 See Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968).

13 See Congress Civil Rights Act, H.R. Doc. S.1177, (1964).

14 Alon, supra note 4.

aid. Following the Black applicants, Hispanic applicants became affirmative action beneficiaries in the 1980s.

The goal was to increase the number of students of color on campuses because while they remained qualified in their own right prior to this legislation, they were previously overlooked.

B. Regents of the University of California v. Bakke

Furthermore, through multiple Supreme Court cases, affirmative action has evolved into a non-quota-based process that looks to address systemic inequalities in higher education. In Regents of the University of California v. Bakke, a student sued the UC system.15 This was the first challenge for affirmative action in college admissions to reach the Supreme Court. Bakke applied to the University of California at Davis for medical school and believed his rejection was due to the spots reserved for marginalized communities.16

In their plurality opinion, the Supreme Court stated that racial quotas and set asides that reserved spaces just for students of color, violate the Equal Protection Clause. The clause states that the government and other entities related to it cannot deny people equal protection of its policies.17 However, the court allowed affirmative action to stand as diversity is a compelling interest, making it an exception to this rule. In the case, Justice Powell ruled that race-based action serves as a compelling educational interest for universities. Race conscious admissions enhance the diversity within a student body and interactions between students with diverse backgrounds and perspectives, enriching the education process. He argued that diversity creates an academic environment that is “conducive to speculation, experiment and creation so essential to the quality of higher education.”18

The court decided that race can be applied as one factor among others to counteract past discrimination.19 The opinion enabled universities to use holistic admissions processes, in order to create an equitable process that addressed the lack of resources and guidance that stems from being part of a minority group. Colleges’ awareness of historically minoritized communities and the unique struggles they face, that often make it harder to access academia, does not violate the Constitution.

15 See Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

16 See Robert A. Levy, The Supreme Court Revisits Affirmative (Cato Institute, 2022), https://www.cato.org/blog/supreme-court-revisits-affirmative-action.

17 See Wex, Equal Protection, Legal Information Institute, https://www.law.cornell.edu/wex/equal_protection (Last visited Mar. 15, 2023).

18 Levy, supra note 16.

19 Levy, supra note 16.

C. Gratz v. Bollinger

In Gratz v. Bollinger, two white petitioners applied to the University of Michigan and were rejected.20 They sued the college because they felt that the school’s admissions process violated the Equal Protection Clause as the university's selection method used a point system. The college awarded additional points to anyone from an underrepresented racial or ethnic minority group.21 The ruling in this case saw the use of race and ethnicity as a decisive factor in admissions, rather than one factor among many in the admissions process, as a violation of the 14th amendment. 22 Ultimately, this case decided that the use of mechanical points for race as unconstitutional, but the application of affirmative action remained valid.

After this case, colleges moved their already holistic admittance processes to be less point driven. Students were still evaluated based on race, among other important factors like GPA, SAT, and extracurricular, but they were not given points for their identity. Still, the ruling allowed schools to pay attention to race and addresses opportunistic gaps that systemically plague students of color.

D. Grutter v. Bollinger

Decided in 2003, Grutter v. Bollinger was another case concerning the University of Michigan and its use of race in admission decisions.23 The court ruled that elite institutions could keep taking race into account during the admission process, as diversifying the study body remains a compelling interest.24 The University of Michigan’s admissions process was narrowly tailored

enough to withstand strict scrutiny because race was one of many factors and did not presumptively decide admission outcomes. They emphasized that the consideration of race must be individualistic rather than within a mandated formula. The ruling also requires that raceconscious programs be time-limited and subject to periodic reviews to determine the necessity of them.

With Grutter the court found that race-conscious admissions allow elite institutions to level the playing field. Ultimately, letting individuals overcome disadvantages that accumulate over generations and competitive advantages that privileged students naturally acquire.25 Because the case surrounded law school admissions, the Court specified that law schools develop a large number of national leaders and therefore the pathway to leadership must be open to every

20 See Gratz, 539 U.S. at 244.

21 See Gratz v. Bollinger, Legal Information Institute, https://www.law.cornell.edu/supct/html/02-516.ZS.html (Last visited Mar. 15, 2023)

22 Alon, supra note 4.

23 See Grutter, 539 U.S. at 306.

24 Alon, supra note 4.

25 Alon, supra note 4.

race and ethnicity, cementing the compelling interest that universities have in attaining a diverse student body.

This case paved the way for institutions to argue that diversity is a compelling enough interest that considering race in admissions is a specific exception to the Equal Protection Clause.

E. Fisher v. University of Texas

With Fisher v. University of Texas (2013), Abigail Fisher, a white student, sued the UT system for considering race and ethnicity as a part of their admissions process.26 Her claim ties to the Hopwood v. Texas (1996) case, which decided that the consideration of race in college and university admission throughout the state was prohibited.27 This case shaped the Texas public university admissions process, leading to a uniform admissions policy granting automatic admission to a fixed percentage of students at the top of the class of each public high school in Texas.

This admissions plan, called the Top Ten Percent Plan, was intended to restore racial and ethnic diversity at Texas’ public universities which declined after the Hopwood ruling, but the University of Texas found that this policy would not allow them to reach their diversity goals. Instead they turned to individual personal assessments to identify diversity not captured by class rank. This policy was used in admission for the 20 percent of class seats not automatically filled by the Ten percent Plan.

Fisher did not qualify within the Ten Percent Plan, she sued the college claiming that her academic record exceeded those of minority students admitted that year. UT Austin responded that it needed to consider race and ethnicity as academic and nonacademic. The Supreme Court justices reaffirmed that student body diversity remained a compelling state interest, and justified the use of race in admissions. However, the Court found that universities can only factor in race and ethnicity in admissions after race-neutral solutions have been determined unworkable.

As the Ten Percent Plan shows, uniform programs that do not consider race leave student bodies lacking the diversity that is needed to grant students the education benefits of diversity they deserve, colleges have a right to use race in admissions, after they explore other possible options.

II. STRICT SCRUTINY

Throughout these cases, strict scrutiny remains a standard that colleges have to meet with their use of race and ethnicity in the admissions process.28 Strict scrutiny is often used by the courts when a plaintiff sues the government for discrimination. In every case, the Supreme Court

26 See Fisher v. University of Texas, 570 U.S. 297 (2013)

27 See Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

28 See Wex, Strict Scrutiny, Legal Information Institute, https://www.law.cornell.edu/wex/strict_scrutiny (Last visited Mar. 15, 2023).

found that universities passed strict scrutiny as they had a compelling interest to use race in admissions. Colleges compelling interest to consider race in admissions was the student body diversity and the positive effects it has on students' learning.

Strict scrutiny is invoked in Equal Protection Clause issues where an individual’s civil rights may have been discriminated against. It is important to know that a government is allowed to discriminate as long as it satisfies the equal protection analysis. This analysis is a system of trying Equal Protection Clause violations to determine if they are unconstitutional or not. If a state government entity or a state government has violated an individual's rights they can sue. The plaintiff must prove that the government body’s action discriminated against them and caused harm. Then the court scrutinizes the action to determine if it is permissible, using one of three methods. Strict scrutiny, intermediate scrutiny, and rational basis scrutiny. The court determines which scrutiny an individual is subjected to relying on precedent to determine which of the three applies.

Specifically, strict scrutiny applies to lawsuits against a governmental entity when the policy or action in question infringes upon a fundamental right, something that is part of First Amendment freedoms, or involves a suspect classification, which include race and national origin, among others. The test for strict scrutiny is twofold.29,30 First the affirmative action program must be designed to achieve a compelling state interest, the court consistently found that diversity is a compelling state interest. Second the program must be narrowly tailored, it cannot sweep more broadly than necessary and cannot be attainable through race-neutral means.

Affirmative action has continued to pass the first part of this test in every case brought against it. Diversity is a compelling interest and that interest allows colleges to use race and ethnicity as a soft factor in their admission processes to secure a diverse class from many wide perspectives. The reason why diversity is a compelling interest is because of its effect on society and universities. As Justice Powell explained in the Regents of the University of California v. Bakke ruling, institutions with diverse student bodies bring together people from different backgrounds and life experiences enhancing the learning environment for all students.31,32

Through the cases reviewed earlier in this article, the Supreme Court worked to narrowly tailor the affirmative action framework to make it narrow enough to pass the second part of the strict scrutiny test. Affirmative action passed the strict scrutiny test on the basis that social reality cannot be separated from educational benefits.33 Every piece of society is affected by race and ethnicity and that gap should close in higher education. While affirmative action is not a perfect policy, it would do more harm than good to eliminate it on the basis of unconstitutionality. By definition, affirmative action passing strict scrutiny makes it constitutional under the Fourteenth Amendment’s Equal Protection Clause.

29 Strict Scrutiny, supra note 27.

30 See Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny 355-407 (The American Journal of Legal History 48, no. 4, 2006), https://doi.org/10.2307/25469981

31 Bollinger, supra note 7.

32 See Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

33 Bollinger, supra note 7.

CURRENT CASE ARGUMENTS

The current cases against affirmative action, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College are arguing that the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.34,35,36 The UNC case also deals with the issue of whether a university can reject a race-neutral alternative because it would change the student body’s composition, without proving the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student body diversity. The Harvard case focuses on possible violation of Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race neutral alternatives.

With SFFA v. UNC it is clear that the second issue in this case, whether a university can reject a race-neutral alternative because it would change the student body, is irrelevant since that is not the standard precedent set. As seen in Fisher v. The University of Texas decision, universities can only factor in race and ethnicity in admission after race-neutral solutions are determined unworkable.37,38 The University of North Carolina explored other options, as precedent requires, but as an institution they decided that these race neutral alternatives would not create a student body with ample enough diversity to gain the benefits that come from it.39

UNC focused on diversity at this institution because it allows them to acknowledge and reckon with the prior discrimination against individuals at UNC and by society. It also looks for diversity in its student body because the world is diverse, and students must learn to live and work within that context. Furthermore, the University uses race as one factor in a large and holistic admissions process and race is not the deciding factor in applicants’ admission decisions. Not only do institutions of higher education have a compelling interest in racial diversity, which they have shown through research, they have explored race-neutral admissions.

The college has no burden to prove that the race-neutral options they explored and rejected would keep diversity high enough that the educational benefits that come with it would still remain, but they did. The university has defined and assessed the concept of critical mass, without which students and staff would not experience the educational benefits of a diverse learning environment to the same degree. The concept of critical mass does not maintain a specific number or quota, both of which would be entirely unconstitutional. Instead, UNC defines critical mass in relation to the education benefit it brings their students.

34 See Students for Fair Admission, Inc. v. University of North Carolina, et al. 567 F.3d 580 (4st Cir. 2021), cert. granted, 142 S. Ct. 895 (U.S. Jan. 23, 2022) (No. 21-707)

35 See Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 397 F.3d 126 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (U.S. Jan. 23, 2022) (No. 20-1199)

36 See Grutter v. Bollinger, 539 U.S. 306 (2003)

37 See Fisher v. University of Texas, 570 U.S. 297 (2013)

38 Alon, supra note 4.

39 See Students for Fair Admission, Inc. v. University of North Carolina, et al. 567 F.3d 580 (4st Cir. 2021).

Additionally, UNC has conducted periodic reviews to reach the conclusion that it has not attained critical mass. They are actively trying to identify if they can use a race-neutral option, as Grutter requires. Therefore, the SFFA’s claim that the university is violating the Equal Protection Clause by refusing to use race-neutral policies and failing to prove the significant effects of these policies in decreasing student body diversity is unfounded. Not only is the university actively seeking out race-neutral alternatives, they have a clear guideline as to where the educational effects of diversity are no longer felt. The University of North Carolina refuses to use race-neutral policies that eliminate the critical mass of diverse students from their institutions, to help their students gain the educational benefits that come with learning among people with diverse perspectives and life experiences.

Addressing the Harvard case, it is clear that the SFFA’s claims are once again unfounded. The plaintiffs claim that Harvard college is actively penalizing Asian American applicants in favor of other minority students. But looking at race as one factor in many, without adding points to a student that is part of a racial minority, is not the same as penalizing an individual for their race. 40 Discriminating against an individual due to their ethnicity is unquestionably unconstitutional, but Harvard College does not penalize Asian students for their race. University of California at Berkeley Professor David Card found that Harvard not only does not discriminate against Asian Americans in their admissions process, being Asian American slightly increases a student’s chance of being accepted into Harvard.41 They are simply giving Asian students, who have more access to resources than other minority groups, an equitable consideration in terms of racial and ethnic diversity.

UNC and Harvard’s use of affirmative action obey legal precedent, contrary to the SFFA’s claims. These colleges' use of this important policy falls in line with other universities across the nation. Institutions of higher education use affirmative action to increase diversity on campus and look to make equitable admissions decisions without discriminating against students outside of minoritized groups. These policies are incredibly important and should not be put in jeopardy, especially when there is clear evidence to suggest that these policies do increase student body diversity and make higher education more beneficial for all students. Harvard is actively seeking out race-neutral admissions, but it has determined that these solutions cannot create the amount of diversity they need to accomplish the educational benefits that come from it. Based on modeling from the 2019 class, if Harvard were to stop considering race, the percentage of the class that is African American would drop from 14% to 6% and the percentage of the class that is Latinx would drop from 14% to 9%.42 Race-neutral options are clearly not workable, contrary to what SFFA claims. Additionally, Harvard does not use quotas and does not engage in racial balancing. The percentage of racial diversity in Harvard’s classes varies from year to year.

40 See Harvard Case Key Facts (06/05/2022) Harvard, https://www.harvard.edu/admissionscase/wpcontent/uploads/sites/6/2022/05/FINAL_Key-Facts_FINAL.pdf.

41 See Harvard Admissions Lawsuit Fact Check, Harvard, https://www.harvard.edu/admissionscase/fact-check-sffa2/.

42 Harvard Case Key Facts, supra note 39.

Therefore, it is clear that SFFA’s claims are not supported by the case evidence. Colleges like Harvard and UNC should be able to continue to use race in their admissions processes to create a more equitable higher education system that educates students in the real world and allows them to gain the benefits of learning in a culturally diverse environment. Race does not determine admission; it is one factor among many.

IV. ASIAN AMERICANS AND AFFIRMATIVE ACTION

SFFA argues that affirmative action policies disenfranchise Asian American students, but that is a widely perpetuated myth. While public perception and cases like SFFA’s make it seem like affirmative action negatively impacts Asian American students, the process benefits all communities of color proportionally.

Today, Asian students are overrepresented at more selective institutions.43 Asian students, like white students, pursue bachelor and other more advanced degrees at higher rates. At more selective institutions, students have access to economic mobility to catapult themselves to a higher place on the socioeconomic ladder. This connection between Asian American students and selective institutions dictates that Asian students receive more access to social mobility through education than other groups like Black and Latinx students.

Affirmative action programs look to address the systemic issues created because of a lack of resources for certain ethnic or racial groups, it does not aim to decrease the number of Asian students at an institution. Addressing Harvard College, specifically, the percentage of Asian Americans in the admitted class has grown by 27% since 2010.44 If colleges disadvantage students. by viewing students negatively based on their Asian heritage, that number should have declined or remained the same. In 2019 Asians made up 5.7% of the US population but Asian Americans comprise nearly 28% of Harvard’s admitted class of 2026.45

As a minority group, Asian Americans are growing very rapidly and with an increasingly larger pool of applicants for a limited number of spots, it is clear that not every qualified applicant will attend their dream school.46 Harvard College receives and reviews more than 60,000 applications each year, but they only offer 2,000 spots to the incoming class of students. Many Asian American apply to their dream college and are not admitted, but that has nothing to do with affirmative action policies, instead, it correlates to the increased number of college applicants. The number of applications increased by 41% in the 2022-23 school year, showing the rejected students are met with negative results, not due to their individual qualities, like race, but rather a trend of fewer spots for a larger proportion of individuals.47

43 See Tomas Monarrez and Kelia Washington, Racial and Ethnic Representation in Postsecondary Education, Urban Institute (2020).

44 Harvard Case Key Facts, supra note 39.

45 See Profile: Asian Americans, U.S. Department of Health and Human Services Office of Minority Health (2023).

46 See Abby Budiman and Niel G. Ruiz, Key Facts about Asian Americans, a diverse and growing population, Pew Research Center (2021)

47 See Michael T. Nietzel, Some Good News On The College Application Front, Forbes (2022)

Examining the same model of Harvard’s 2019 class, the data reports that using raceneutral admissions tactics would lead to a slight 3% decline in the percentage of the class that is Asian American.48 While this may seem like a large drop, color blind policies lead to a more drastic decline in the percent of the class that is African American, 8%, and Latinx, 5%. The harm that would come to people of color through race-neutral admission processes are significant in comparison to the drop in Asian American student representation. The representation of Asian Americans at selective colleges already overrepresents this minority, therefore a small decrease in the percentage of the class that Asian students make up, in favor of keeping a large amount of diversity in the study body makes race conscious admissions worth it.

The harm that eliminating these policies would have on other minority students outweighs the importance of the Equal Protection Clause, which is why affirmative action is an exception to this part of the constitution. These policies are not unconstitutional because Asian American students are not being discriminated against, these students simply attend college at higher rates and the rate of people going to college is going up leading to a natural decline in the community’s high admission numbers. This decline is not occurring because of affirmative action, race is not stopping Asian American students from college admission processes, they are not being constitutionally discriminated against.

Affirmative action levels the playing field and makes higher education more equitable for all students, but because Asian American students often have more access to resources it can feel like a demotion. The SFFA skews data and fear mongers within the Asian American community to pit students of color against one another to distract these communities from the majority of white students that occupy higher education institutions, but affirmative action helps all students of color, even Asian Americans.49 There are great educational benefits that come with learning in an environment that has diversity, students learn how to better interact and accept others, preparing them for the real world and life after higher education institutions. Ultimately, affirmative action does not harm Asian American students as it helps less represented parts of the Asian community gain access to higher education and equal opportunities.

V. FLAWS IN AFFIRMATIVE ACTION

While affirmative action is constitutional it is not a perfect solution. The main beneficiaries of these policies are Euro-American women.50 Eliminating affirmative action and moving towards “colorblind” solutions will not fix the inequality present in every part of society, instead using race-neutral solutions would eliminate the discourse surrounding the discrimination

48 Harvard Case Key Facts, supra note 39.

49 See Melanie Hanson, College Enrollment & Student Demographic Statistics, EducationData.org (2022), https://educationdata.org/college-enrollment-statistics

50 See Kimberlé W. Crenshaw, Framing Affirmative Action, 105 Mich. L. Rev. First Impressions 123 (2007), http://www.michiganlawreview.org/firstimpressions/vol105/ crenshaw.pdf.

people of color experience in higher education while perpetuating student bodies that lack diversity.

Additionally, affirmative action does not always lead to socioeconomic diversity, which is also important for students to experience in a learning environment. The more socioeconomic diversity on a campus, the more likely students are to interact across classes, which can help them move beyond their personal privilege and foster empathy.51

In a way affirmative action may validate the false idea that minority students, specifically Black students are less intelligent and therefore, will do worse at higher education institutions. 52 This idea is part of two distinct theories, the first of which is called the stereotype threat hypothesis and purports that affirmative action exacerbates racial stigma influencing how white students view their minority peers and how minority students view themselves. The second theory is the mismatch theory, which says that affirmative action sets up minority students for failure by placing them in academic settings where they are under-prepared.

If these racist stereotypes are affirmed it can increase a psychological burden minority students experience, having a negative effect on their academic performance, so the stereotype threat hypothesis may become true at some higher institutions. However, the mismatch theory is inherently false as affirmative action does not set up minority students for unusual academic difficulty, more likely beneficiaries of minority affirmative action are likely to earn higher grades than other minority students, other things equal. Black and Hispanic students with SAT scores below the institutional average earned better grades than minority students generally.

Additionally, affirmative action has broadened the educational opportunities of minority students increasing the likelihood that minority students will graduate and obtain a job with good economic returns and contribute to the emergence of Black/Latinx middle class. 53

Overall, the negative effects of affirmative action do not outweigh the positives. Students of color are just as intelligent as white students and they deserve the same opportunities in higher education institutions, despite the structural barriers they face. Regardless of who affirmative action helps the most and what it clearly lacks, it aims to correct structural issues in higher education and it has made progress on this front. It is a constitutional solution because it does not discriminate against applicants that are White or Asian American, instead it factors in the structural barriers certain groups face due to their race. It is one part of an individualized, holistic admissions process creating a more diverse student body.

In the end, all students benefit from affirmative action policies. While these policies are not perfect, they look to address the institutionalized discrimination people of color face in the

51 See Julie J. Park, Nida Denson, and Nicholas A. Bowman, Does Socioeconomic Diversity Make a Difference?

Examining the Effects of Racial and Socioeconomic Diversity on the Campus Climate for Diversity 466–96 (American Educational Research Journal 50, no. 3, 2013), http://www.jstor.org/stable/23526110

52 See Douglas S. Massey and Margarita Mooney, The Effects of America's Three Affirmative Action Programs on Academic Performance 99-117 (Social Problems, Vol. 54, No.1, 2007), https://www.jstor.org/stable/10.1525/sp.2007.54.1.99.

53 Alon, supra note 4.

college admissions process and they add a significant educational benefit to students that attend institutions that have this diversity in their learning environments.

VI. LEGACY AND AFFIRMATIVE ACTION

While the focus is on affirmative action, legacy admissions are often overlooked, a system that inherently prefers white students over students of color and adds no benefit to the learning environment. Legacy policies give preferential treatment to the applications of children of alumni.54 Ivy League schools' legacy admission make up 10% to 15% of the freshman class each year, but these policies are also present at state supported colleges like UNC. At Harvard specifically, legacy applications are read by the dean of admissions, a privilege other applicants do not receive, resulting in a higher admissions rate for legacies than non-legacy students. At Harvard, 70% of legacy applicants are white, meaning that legacy admissions perpetuate historical inequalities at higher education institutions. 55

With affirmative action there is no reverse discrimination at play, individuals who are outside of underprivileged minority groups are not facing discrimination.56 Studies have shown that minority affirmative action has small and insignificant effects on the admission prospects white students, however, the same cannot be said for legacy admissions.

Legacy admissions were first used in the 1920s as a way to curb the increase in Jewish applicants in secondary school. While universities can no longer use the exclusion of certain racial or ethnic groups as justification for legacy admission policies, the historical discrimination against students of color means that legacy admissions disproportionately favor white students who are more likely to have alumni parents at prestigious institutions. Black students did not receive the same educational opportunities until Brown v. Board of Education (1954), even after the case and the Civil Rights Movement the increase in Black students at higher education institutions did not close the racial gap.57 By 1995, 96% of all living Ivy League alumni were white. The racial imbalance of alumni favors white applicants, perpetuating an unjust system. Harvard’s class statistics show that legacy admittance is incredibly high making up more than 20% of each class. 58 In 2022 alone, 36% of those who got into Harvard were legacy students. Ten percent of those students had a parent who went to Harvard, and 7.2% had a sibling who went to the college. This is a relative increase in comparison to the past classes, whose

54 See Deborah L. Coe and James D. Davidson, The Origin of Legacy Admissions: A Sociological Explanation 233247 (Review of Religious Research Vol. 52, No. 3, 2011), https://www.jstor.org/stable/23055549.

55 See Ashley Kim, Legacy Admissions: An Insidious Form of Racial Discrimination, Col. L. Rev. (2012), https://www.culawreview.org/journal/legacy-admissions-an-insidious-form-of-racial-discrimination

56 See Julie J. Park, Nida Denson, and Nicholas A. Bowman, supra note 43.

57 See Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

58 See Alexandra A. Chaidez and Samuel W. Zwickel, Meet the Class of 2022, Harvard Crimson (2022), https://features.thecrimson.com/2018/freshman-survey/makeup-narrative/

legacy percentages did not rise above 30%. As of 2015 legacies are five times more likely to receive admittance into Harvard than applicants without relatives who went to the college.59

It is impossible to question the constitutionality of affirmative action without looking at the constitutionality of legacy admissions. While affirmative action is similar to legacy it looks to correct systemic issues, but legacy admissions exacerbate them. Affirmative action passes the standard of strict scrutiny, because institutions have a compelling interest in the diversity of a student body due to the educational benefits that diversity provides.60 As discussed earlier in this article, that compelling interest makes affirmative action constitutional, but legacy meets no such standard. Inherently, legacy admissions are unconstitutional, therefore colleges cannot be rid of affirmative action without eliminating legacy admissions.

VII. CORRELATION BETWEEN AFFIRMATIVE ACTION AND DIVERSITY

One of the biggest arguments against affirmative action is the idea that affirmative action does not have a significant effect on student body diversity. Many institutions have gotten rid of affirmative action policies in favor of race-neutral choices, but they have found that their student body diversity has declined, and the amount of Black and Latinx students on campus has taken a drastic downturn. The University of California system exemplifies this correlation between affirmative action and student diversity.

In 1997, California voters passed Proposition 209 which banned public colleges and universities in the state from considering race in admissions.61 The passage of this proposition led to an immediate drop in Black students at UC Berkeley, of 52 percent, and that of Hispanic students, of 43 percent. Colleges in states that have banned racial consideration from the admissions process have experienced a decline in racial diversity across several educational fields such as law, natural sciences, medicine, and business.

Overall, Black, Hispanic, and Native American students remain underrepresented at selective institutions, both public and private, while white students are still overrepresented. 62 Getting rid of affirmative action would not only fail to fix the systemic issues that these policies look to solve, it would also decrease the existing minority representation in higher education, harming more than helping.

VIII. CONCLUSION

Affirmative action aims to solve systemic issues caused by racial discrimination. It remains constitutional under the strict scrutiny test, and contrary to popular belief, does not promote reverse discrimination. Policies that support affirmative action do not choose applicants

59 See Melissa Korn, How Much Does Being a Legacy Help Your College Admissions Odds?, Wall Street Journal (2018), https://www.wsj.com/articles/legacy-preferences-complicate-colleges-diversity-push-1531128601.

60 Bollinger, supra note 7.

61 Alon, supra note 4.

62 Tomas Monarrez and Kelia Washington, supra note 42.

based on race or use quotas to benefit minority students, instead they use race as one factor among many. Admissions processes with affirmative action empower students of color, giving them access to better educational opportunities and increase their likelihood of graduation.

Starting in employment, affirmative action soon became a key part of the Civil Rights Movement and the desegregation of schools and institutions of higher education. Colleges wanted to diversify their student bodies but failed to do so because of the lack of resources they offered to Black students who did not have the means to attend college. Affirmative action emerged as a way to give qualified Black applicants access to the higher education system, facilitating the economic mobility of racial minorities. Later the program expanded to include Latinx students, as well.

Through cases, the definition of affirmative action and the ability to use race conscious admissions was carefully reviewed to make sure that it passes the constitutional muster. Through Regents of UC v. Bakke, the Supreme Court established the unconditionality of quotas for students of color, but they emphasized that diversity is a compelling interest colleges can actively seek out to create a student body with many perspectives.63 With Gratz v. Bollinger, mechanical points were found unconstitutional, but it still let institutions use race as one factor among many in their admissions processes.64 In Grutter v. Bollinger, the court decided that higher education institutions could only use race in individualistic considerations, pushing admissions to a more holistic process.65 And in Fisher v. UT the Supreme Court ruled that colleges could only use race-conscious admissions when they determined that race-neutral alternatives are not workable.66

The plethora of cases tied to affirmative action are measured against the standard of strict scrutiny. Strict Scrutiny is used in cases where the Equal Protection Clause is questioned. It is acceptable to discriminate against an individual as long as it obeys the strict scrutiny analysis, and affirmative action, due to the institutions’ compelling interest, passed with flying colors. SFFA’s cases against Harvard College and the University of North Carolina make it seem as though these colleges are not actively trying to find a better solution than race-conscious admission, but that is simply untrue. While these institutions did and continue to search for different policies to use for admission, they have found that the current race-neutral admission policies would lead to a steep decline in the amount of Latino and Black students on campus, making these alternatives unworkable.

In the Harvard case in particular, Asian Americans and their connection to affirmative action is examined. While Asian American students may be rejected from their dream college this is not because they are any less qualified or due to their race, it is because of the increase in applications in general. The population of people applying to college is growing, but that means even the few spots available become even more difficult to obtain.

63 See Regents of Univ. of California, 438 U.S. at 265.

64 See Gratz, 539 U.S. at 244.

65 See Grutter, 539 U.S. at 306.

66 See Fisher, 570 U.S. at 297.

Affirmative action is far from perfect and it has no mechanism to protect against implicit biases, but it is constitutional and it protects and grants educational opportunities to marginalized individuals who are lacking access to them.

Examining states without affirmative action, it is clear that diversity is not possible without these race-conscious measures. Eliminating programs that promote diversity would be a mistake. It would actively disadvantage skilled students who receive educational opportunities because of these programs, and the students who benefit from their unique perspectives. Everyone deserves an equal opportunity to education, even if an individual does not have the means to reach educational opportunities that does not define them as unworthy. Affirmative action does not disadvantage certain students, it looks to close the gap in educational resources. Affirmative action benefits all students because learning in a diverse environment better prepares students for the real world. Therefore, affirmative action does not violate the Equal Protection Clause of the 14th amendment, it helps society live up to the ideal of an equitable and just society, regardless of race or ethnicity.

Abortion Rights in the Supreme Court: How Roe v. Wade’s Grounding of Abortion Rights in Privacy Rights was Not a Strong Enough Foundation to Prevent Its Overturn

Kim Dang

Edited by Tyler Drake

Following the Dobbs v. Jackson Supreme Court decision overturning abortion protections established in Roe v. Wade, women’s reproductive rights have been jeopardized. In Roe v. Wade, the Supreme Court had ruled that the “right to privacy” inherent in the Due Process Clause of the Fourteenth Amendment applies to a woman’s right to privately choose abortion. Roe v. Wade established that the state could not regulate abortion during the first trimester, and grounded the right to abortion as a matter of privacy between the woman and her doctor. But inevitably, there were large problems in this reasoning for constitutionality. Critics of this decision argue that the “right to privacy” was misconstrued to be applicable to abortion, and many pro-choice advocates believe that there could have been more secure homes for federal abortion rights. Such arguments illustrate the potential pitfalls in the Roe decision, since it established the right to a private decision considering abortion, not an explicit right to abortion. In Dobbs v. Jackson, the majority opinion ruled that the Constitution contains no mention of abortion and thus justifies the overturn of the Roe precedent. Ultimately, the justification that abortion is protected as a privacy right was not sufficient protection for women’s reproductive rights. This paper seeks to explore how Roe v. Wade’s focus on privacy rights rather than equal rights for women was not a strong enough foundation to protect a woman’s right to choose abortion, ultimately contributing to its overturn in Dobbs v. Jackson.

The right to abortion has been a highly debated topic in the United States for a very long time. Since states have some jurisdiction to define their own laws, abortion laws have varied greatly from state to state prior to the first Supreme Court rulings. But, with the Supreme Court deciding in 1973 to federally uphold the right for a woman to choose to obtain an abortion in Roe v.Wade, this has helped to ensure that women could across the country could choose whether or not to get an abortion. But, to the detriment of women’s reproductive rights, this protection was struck down in Dobbs v. Jackson, and this was done so on the foundation of privacy rights.

Proponents for the legalization of abortion in the United States hoped that Roe v. Wade would do justice for women’s reproductive rights. In Roe v. Wade, the right for a woman to obtain an abortion has been defined as a privacy right. This right to privacy can be found in the Fourteenth Amendment’s Due Process clause, which has been interpreted to encompass a citizen’s right to privacy from the government. This right to privacy has been used in arguments over the use of contraception, over same-sex partnerships, and ultimately abortion. But, the Supreme Court’s interpretation of this privacy right has inevitably evolved over time. This change in interpretation culminated in the Dobbs decision, which ruled that abortion could not count as a privacy right, and thus the right to abortion could not be found anywhere in the Constitution. Ultimately, the instability of the interpretation of privacy rights have greatly affected women’s reproductive rights in the United States. Many who support the legalization of abortion, believe that this goal could have been achieved through other means the grounding of a woman’s right to abortion in privacy rights ultimately prove to be a point of legal vulnerability.

II. LEGAL HISTORY OF ABORTION RIGHTS IN THE US

Prior to Roe v. Wade in 1970, abortion was illegal in the majority of the states there were typically no exceptions in place for cases where the mother’s life was in danger or in cases of rape.1 Although some states did have exceptions, this was not generally the norm. This sentiment started to change in the 1960s due to an uptick in maternal health risks a morning sickness drug thalidomide and a rubella epidemic had caused thousands of babies to be born with various health defects and disabilities.2 High profile physicians began to advocate for abortion procedures to be treated like any other medical procedure, specifically as a decision that could be made between a woman and her doctor.3

Abortion rights have been a controversial subject in American politics for a long time. Since the right for a woman to obtain an abortion has been rooted as a privacy right, this section will analyze how the interpretation of privacy rights were established in Supreme Court cases, and how it eventually led to the decision in Roe In addition, this section will look at other key cases that began the Supreme Court debate on abortion rights for the country. Leading up to Roe v.Wade, there were a couple key Supreme Court cases that helped shift the interpretation of privacy and ultimately establish its foundation: Griswold v. Connecticut, Eisenstadt v. Baird, and United States v. Vuitch.

1 Roe v. Wade and Supreme Court Abortion Cases, Brennan Center for Justice, Sept. 28, 2022, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

2 Id.

3 Id.

A. Griswold v. Connecticut (1956)

The Supreme Court case Griswold v. Connecticut established the martial right to privacy. This case challenged a Connecticut law which prohibited the use of contraception for married couples, as well as the distribution of information about contraception.4 Estelle Griswold, the Executive Director of Planned Parenthood in Connecticut, was convicted for providing contraception and information on contraception to a married couple. In a 7-2 decision, the Supreme Court ruled that Connecticut’s law was unconstitutional and that the states cannot restrict a married couple’s access to contraception on the basis of it being an invasion of privacy.5

The Supreme Court wanted to strike down the Connecticut law, but it had struggled to find a Constitutional basis to do so, and ultimately it ended up settling on privacy rights. The Supreme Court found that this right to privacy, since it was not explicitly mentioned in Constitutional writing, could be found in the penumbras of the Bill of Rights. After establishing this right to privacy, the Court then applied it to contraception. While this case specifically established the martial right to privacy, it was the first to infer that there was a right to privacy within the Constitution, even if there was no explicit mention of it.

In the majority opinion written by Justice William Douglas, he argued that there are implicit rights that stem from the “emanations” of other rights that are explicitly granted in the Constitution.6 In short, this means that when viewing the Bill of Rights holistically, it can be seen that it functions to prevent unreasonable intrusions from the government. The Court found that the penumbra formed by the First, Third, Fourth, Fifth, and Ninth amendments all lead to a right to privacy implicit in the Constitution The First Amendment contains a right of association The Third Amendment’s protection against the quartering of soldiers indicates another point of protection of privacy. The Fourth Amendment’s protections against unreasonable search and seizure also contains the image of privacy. The Fifth Amendment portrays privacy rights through its self-incrimination clause. And finally, the Ninth Amendment gave the Supreme Court the power to protect unenumerated rights such as rights to privacy. Supreme Court majority found that the right to contraception is an inexplicit protected right of privacy within a marriage the right of privacy in marriage is understood as existing long before the Constitution 7

The concurrent opinion written by Justice Marshall Harlan II argued that the right to privacy was found elsewhere. Justice Harlan believed that the right to privacy was found in the Fourteenth Amendment’s Due Process clause. Justices Hugo Black and Potter Stewart dissented in this case, arguing that regardless of the issue of contraception, there was no grounding of privacy rights in the Constitution at all.8

The Griswold decision was monumental in establishing the right to privacy as a constitutional right. Although Justice Harlan only gave the concurrent opinion in this case, his argument that the right to privacy comes from the Fourteenth Amendment became more substantive in retrospect than Justice Douglas’s explanation, and thus is referenced much more often when discussing privacy.9 Many Supreme Court cases following this one including Roe

4 Griswold v. Connecticut, Oyez, https://www.oyez.org/cases/1964/496

5 Griswold v. Connecticut, (1964) 381 U.S. 479

6 Griswold v. Connecticut (1965), Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/griswold_v_connecticut_(1965)

7 Griswold v. Connecticut, (1964) 381 U.S. 479

8 Griswold v. Connecticut, Oyez, https://www.oyez.org/cases/1964/496

9 Privacy, Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/privacy

v.Wade reference back to Harlan’s argument here. In the long run, Griswold v. Connecticut was successful in establishing the constitutional existence of privacy rights in the Fourteenth Amendment.

B. Eisenstadt v. Baird (1972)

In Eisenstadt v. Baird, the Supreme Court essentially extended the right to the private use of contraceptive previously established in Griswold v. Connecticut beyond married couples to unmarried couples.10 William Baird had given a lecture on birth control and overpopulation to a group of university students at Boston University, where upon ending the lecture, he allowed students to take some contraceptive items from him 11 Baird had handed an unmarried woman a contraceptive item, and was charged with a felony of distributing contraceptives to unmarried people.12 The Massachusetts law at the time stated that only married couples could obtain contraceptives, and that only registered physicians could provide said contraceptives.13 Baird was no such authorized physician, and the woman was unmarried.

In a 6-1 decision, the Supreme Court found the Massachusetts law unconstitutional and ruled that unmarried individuals cannot be denied access to contraception nor counsel on it.14 In the majority opinion written by Justice William Brennan, he explains that this decision was justified under the Fourteenth Amendment’s Equal Protection Clause.15 Justice Brennan. had written for the majority, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”16 While the main premise of this case simply expands Griswold’s decision to include unmarried people in access to contraception, it was successful Griswold as a whole Ultimately, Eisenstadt v. Baird reaffirmed the existence of privacy rights as a constitutional right, paving the way for its later use in Roe v. Wade.

C. United States v. Vuitch (1971)

In the United States, abortion had been illegal since 1901 with the exception of certain cases where the health of the woman was in jeopardy.17 The Supreme Court case United States v. Vuitch addressed the constitutionality of a District of Columbia abortion law this law prohibited all abortion unless it is “necessary for the preservation of the mother’s life or health”.18 This meant that doctors could technically perform abortions if they deemed the pregnancy to be a risk to the woman’s health. But, this also meant doctors would have to interpret what “health” means in the DC statute, with the possibility of unknowingly violating

10 Id.

11 Eisenstadt v. Baird, (1972) 405 U.S. 438

12 Eisenstadt v. Baird, Oyez, https://www.oyez.org/cases/1971/70-17

13 Id.

14 Id.

15 Sheraden Seward, Eisenstadt v. Baird (1972), The Embryo Project Encyclopedia (Dec. 3, 2008), https://embryo.asu.edu/pages/eisenstadt-v-baird-1972

16 Eisenstadt v. Baird, (1972) 405 U.S. 438

17 United States v. Vuitch, (1971) 402 U.S. 62

18 Id.

the law if the necessity of an abortion was debatable.19 Milan Vuitch, licensed physician ,was convicted for performing an abortion where the woman’s life was arguably not in danger 20 Vuitch argued against his conviction, saying that the District of Columbia abortion law was unconstitutionally vague and did not define the term “health” clearly enough so that doctors could know which actions would and would not violate the law.21 This case also brought into question of whether or not the Supreme Court has the jurisdiction to rule on this matter.

In a 5-4 decision, the Supreme Court ruled against Vuitch and found that the District of Columbia’s abortion statute was not unconstitutionally vague.22 In the majority opinion delivered by Justice Hugo L. Black, he explains that the term “health” was not vague, and did in fact include physical and mental health, which had been a point of insecurity for physician interpretation 23 It was also found that the burden of proof that the doctor did perform an abortion outside of the law should fall upon the prosecution.

In an opinion written by Justice William O. Douglas where he concurred in part and dissented in part, he argues that the District of Columbia statute leaves too much to the doctor to decide: the term “health” alone was too broad, and the law should be returned to Congress for a revision.24 In Justice Potter Stewart’s separate concurring opinion where he also concurred in part and dissented in part, he said that the decision as to whether or not any procedure is necessary should be left to the professional opinion of the doctor. Thus, the doctors who perform abortions should be immune from being charged with criminal offense if they performed the abortion for the woman’s health, as they are the experts on “health”. 25

This case was one of the first to legally establish “health” as both physical and mental, and showed to abortion rights advocates that a simple absence of anti-abortion laws would not be sufficient to protect women’s reproductive rights achieving legislation that explicitly protect abortion rights would be absolutely necessary.26 This was one of the first major cases to challenge the constitutionality of abortion regulation laws, and it helped to establish a particular legal atmosphere which would contribute to the Roe decision. United States v. Vuitch essentially opened the door for the Supreme Court to continue to address abortion and abortion legislation. After the Supreme Court issued its decision in United States v. Vuitch, they voted the next day to hear Roe v. Wade.27

III. ROE V. WADE (1973): BACKGROUND

In Texas, its law at the time had criminalized abortion apart from situations where the woman’s life was in danger due to the pregnancy. This meant that doctors who performed abortions risked fines or jail time, especially when interpreting what a danger is to the woman’s

19 United States v. Vuitch, Oyez, https://www.oyez.org/cases/1970/84

20 Id.

21 Victoria Higginbotham, United States v. Milan Vuitch (1971), The Embryo Project Encyclopedia (Jan. 13 2020), https://embryo.asu.edu/pages/united-states-v-milan-vuitch-1971

22 United States v. Vuitch, (1971) 402 U.S. 62

23 Id.

24 Id.

25 Id.

26 United States v. Vuitch, Law Library-American Law and Legal Information, https://law.jrank.org/pages/24672/United-States-v-Vuitch-Significance.html

27 Body Politic: Roe v. Wade, Oyez, https://projects.oyez.org/body-politic/ch1#ch1-1

life can sometimes be debatable.28 In 1970, Texas resident Norma McCorvey sought an abortion. This was her third pregnancy, and she had given up her first two children to adoption due to her struggles with alcohol and drug use. 29 But ultimately, this Texas law blocked her from receiving an abortion. Her situation was utilized by Texas lawyers Linda Coffee and Sarah Weddington to challenge that Texas state statute that restricted abortion access, filing the lawsuit under the pseudonym “Jane Roe”. 30

In their case, Roe argued two reasons for the unconstitutionality of the Texas statute, and expanded on the right to privacy that Griswold v. Connecticut and Eisentstadt v. Baird had previously established 31 The first point of unconstitutionality had to do with physician’s rights: the Texas statute required physicians to determine whether the mother’s life was at risk, and the laws were vague enough that doctors were worried about unknowingly violating the law by providing an abortion.32 The second reason for unconstitutionality was that the prospect of pregnancy for a woman with no access to abortion runs the risk of disrupting the woman’s life. 33 Women could be asked to leave their jobs if they became pregnant with no legal requirement for employers to give women their jobs back after the pregnancy, and giving maternity leave was not a standard practice at the time 34 Thus, Roe argued that women need to at least be given the choice to obtain an abortion, as the pregnancy may cause damage to their livelihood.

The Supreme Court sought to answer the question of whether or not a woman’s right to end her pregnancy via abortion was recognized by the Constitution. In a 7-2 decision, the Supreme Court ruled that yes, a woman does have the right to choose whether to have an abortion though this is within some parameters to protect the “potentiality of human life”.35 The Court ruled that the States could not regulate abortions during the first trimester of pregnancy. But after the first trimester, the states could regulate abortion to preserve the potentiality of life, with some exceptions when the health of the mother is at risk.36

The Supreme Court’s ruling on this matter was rooted in the right to privacy found in Fourteenth Amendment’s Due Process Clause. It was found that the choice to have an abortion was a private medical concern between the woman and the doctor that the government should stay out of 37 This justification more so protects the doctor performing the abortion rather than the woman getting the abortion the right to privacy was established for the doctor to feel legally capable of providing the abortion care, not necessarily for the woman’s right to a private choice.38

Justice William Rehnquist dissented in this case. He questioned the argument on privacy grounds and said that “privacy” did not apply to abortion 39 He argued that the only rights not in the Constitution that could be recognized are ones which have roots in American tradition he

28 Roe v. Wade and Supreme Court Abortion Cases, Brennan Center for Justice, Sept. 28, 2022, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

29 Id.

30 Id.

31 Roe v. Wade, (1973) 410 U.S. 113

32 Body Politic: Roe v. Wade, Oyez, https://projects.oyez.org/body-politic/ch1#ch1-1

33 Id.

34 Id.

35 Roe v. Wade, Oyez, https://www.oyez.org/cases/1971/70-18

36 Id.

37 Id.

38 Body Politic: Roe v. Wade, Oyez, https://projects.oyez.org/body-politic/ch2#ch2-1

39 Roe v. Wade, (1973) 410 U.S. 113

did not believe abortion was one of those rights.40 He presented a more prudentialist argument, saying that the matter should be left to the states. His dissent basically argued that abortion itself was not a right found in the Constitution.

IV. ROE V. WADE: EFFECTS

After the Roe decision, states began to fight over what legal limits the government could put on abortion without actually banning abortion, especially during the second and third trimesters of pregnancy.41 Regardless, Roe v. Wade proved to be successful in the fight for women’s reproductive rights abortion continued to be legal in all 50 states for the next 49 years. The Roe ruling was also successful in reducing mortality rates of women who attempted unsafe abortions due to state laws restricting access to safe abortions more than 39 women died in 1972 due to unsafe abortions compared to 3 such deaths in 1975. 42

Before its overturn in Dobbs v. Jackson, a couple important cases followed Roe v. Wade which continued to address federal abortion rights. The most important of these cases were Planned Parenthood v. Casey, Gonzales v. Carhart, and Whole Woman’s Health v. Hellerstedt. These cases sought to test the boundaries of the abortion rights that Roe had established, and they questioned how much power the states really have to regulate abortion.

A. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

The Supreme Court case Planned Parenthood v. Casey affirmed the decision found in Roe this was the first case to put Roe’s stability to the test 43 A Pennsylvania law at the time had made it very difficult and tedious for women to obtain an abortion. It required that women seeking abortions needed informed consent and a 24-hour waiting period before the actual procedure.44 In addition, it required that minors wanting an abortion obtain the consent of a parent, and married women wanting an abortion needed to notify the husband.45 The Planned Parenthood of Southeastern Pennsylvania sued the governor of Pennsylvania Robert Casey over this law, arguing that it was unconstitutional.46 This case made it to the Supreme Court, and it sought to determine if the Pennsylvania state statute was constitutional and whether or not it violated the right to abortion found in Roe v. Wade. 47

In a 5-4 decision, the Supreme Court reaffirmed Roe v. Wade’s right to abortion, and upheld all of the provisions in the Pennsylvania statute minus the requirement for married women to notify their husbands.48 This decision was made on the basis of stare decisis of the Roe v. Wade precedent, and effectively skipped over actually addressing the question of whether or not Constitutional texts contain the right to abortion.49 It did however, expand on abortion as a

40 Id.

41 Roe v. Wade and Supreme Court Abortion Cases, Brennan Center for Justice, Sept. 28, 2022, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

42 Id.

43 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833

44 Planned Parenthood of Southeastern Pennsylvania v. Casey, Oyez, https://www.oyez.org/cases/1991/91-744

45 Id.

46 Id.

47 Id.

48 Body Politic: Planned Parenthood v. Casey, Oyez, https://projects.oyez.org/body-politic/ch2#ch2-1

49 Dobbs v. Jackson Women’s Health Organization (2022) 142 S. Ct. 2228

privacy right, explaining how the freedom to choose an abortion is a freedom to make “intimate and persona choices…central to personal dignity and autonomy.” 50 This ultimately reinforced Roe v. Wade’s grounding of abortion in privacy rights although it did not continue to examine if privacy rights were the best foundations for this argument.

This case affirmed a federal right to obtain an abortion, but created a new standard when dealing with state laws that sought to regulate abortion. It was determined that states cannot create an “undue burden” for the women when writing their abortion laws. “Undue burden” is defined as any “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”.51 Thus, with this definition of undue burden, the Supreme court found that all of the Pennsylvania law’s provisions are acceptable except for the need for the woman to notify her husband.

Thus, Planned Parenthood v. Casey became a very prominent precedent for abortion rights. This is because, on top of affirming Roe v. Wade, it included more legal standards for how the states can treat abortion rights. It established that states can regulate abortion until the fetus is viable if it does not cause “undue burden” on the woman. But, the term “undue burden” is concerningly vague and leaves a lot up for interpretation. This ultimately created breathing room for states that wished to restrict abortion as much as possible to test how far they could go before it could be considered an “undue burden”. While the Supreme Court technically upheld Roe, this insertion of “undue burden” allows another way for abortion rights to be attacked after the decision, more abortion restrictions popped up but never technically contradicted the right to abortion entirely.52 This paved the way for future cases which sought to test what “undue burden” actually entails. One such case is Gonzales v. Carhart.

B. Gonzales v. Carhart (2007)

The Partial-Birth Abortion Ban Act was passed in 2003 and was signed into law by former President George W. Bush.53 This was a controversial Act which banned the abortion of fetuses where the fetus has “the entire fetal head or any part of the fetal trunk past the navel is outside of the body of the mother”.54 In Gonzales v. Carhart, Dr. Leroy Carhart was a physician who performed late-term abortions, and he sued against the Act arguing that this would be an “undue burden” on the woman seeking an abortion that had been established in Planned Parenthood v, Casey.55

In a 5-4 decision, the Supreme Court ruled that the Act did not impose an “undue burden” upon the right to abortion.56 In the majority opinion written by Justice Anthony Kennedy, the Court held that since the act only banned one specific late-term abortion procedure, the restriction was not an “undue burden” for women nor was it unconstitutionally vague.57 He argued that since doctors had not established the necessity of that specific late-term abortion

50 Id.

51 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833

52 Body Politic: Planned Parenthood v. Casey, Oyez, https://projects.oyez.org/body-politic/ch2#ch2-1

53 Gonzales v. Carhart, Oyez, https://www.oyez.org/cases/2006/05-380

54 Id.

55 Gonzales v. Carhart (2007) 550 U.S. 124

56 Id.

57 Id.

procedure in terms of preserving the woman’s health, Congress was free to regulate it as it sees fit.58

In the dissent written by Justice Ruth Bader Ginsburg, joined by Justices John Stevens, David Souter, and Stephen Breyer, she argues that the Act does violate the Casey precedent and that this decision was an attack on women’s rights.59 She also questions the grounding of abortion rights in privacy rights, arguing that the Court instead should have based abortion rights as a matter of equal rights for women and individual autonomy.60 She writes in her dissent, “…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” 61

This was the first time that the Supreme Court upheld a law that prohibited a specific abortion procedure, and it did this when the law did not include any exceptions for when the woman’s health was in danger.62 Gonzales v. Carhart illustrated that the Supreme Court is becoming increasingly willing to regulate abortion legislation, toeing the line of overturning federal abortion protections all together. Both Carhart and Casey utilized the same “undue burden” argument to justify their claims, yet the concept was applied in two very different outcomes this shows the fickle and unstable foundations of abortion legislation in the Supreme Court. Ultimately, the vagueness and subjective nature of the term “undue burden” had proven to be a point of weakness, and coupled with the original grounding of abortion rights in privacy rights in Roe v. Wade, this contributed to the legal environment that would later birth the Dobbs decision

C. Whole Woman’s Health v. Hellerstedt (2016)

The Texas legislature had passed a bill in 2013 which required abortion physicians to have admitting privileges at a nearby hospital to where the abortion would be performed, and required abortion clinics to adhere to standards for ambulatory surgical centers.63 The enforcement of this bill would have required a lot of structural changes to Texas abortion facilities. Proponents of the bill argue that this is in favor of protecting women’s reproductive rights, and that these regulations would make abortions safer. On the other hand, the petitioners of this case argue the opposite, and that it will actually limit women’s access to abortion care as 75% of Texas clinics will have to close due to the new standards.64 They argue that the abortion procedure is generally safe compared to other medical procedures, so the strict regulations in the Texas bill are unnecessary in protecting women’s health.

In a 5-3 decision, the Supreme Court found that the Texas bill was unconstitutional.65 In the majority opinion written by Justice Breyer, he argued that the bill imposed an “undue burden” on women seeking an abortion.66 There was no data to show that the new regulations in

58 Id.

59 Body Politic: Gonzales v. Carhart, Oyez, https://projects.oyez.org/body-politic/ch2#ch2-1

60 Id.

61 Gonzales v. Carhart (2007) 550 U.S. 124

62 After Gonzales v. Carhart: The Future of Abortion Jurisprudence, Pew Research Center, https://www.pewresearch.org/religion/2007/06/14/after-gonzales-v-carhart-the-future-of-abortion-jurisprudence/

63 Whole Woman’s Health v. Hellerstedt, Oyez, https://www.oyez.org/cases/2015/15-274

64 Id.

65 Whole Woman’s Health v. Hellerstedt (2016) 579 U.S. 582

66 Id.

the Texas bill actually made abortion safer, if anything, the numbers showed that the regulations became obstacles that made it harder for women to obtain an abortion 67 The provisions in the Texas bill did not provide substantial medical benefits to justify the undue burdens it imposes on women seeking an abortion. Justice Ginsburg concurred with the decision, emphasizing how medical procedures with more risk than abortion receive less regulation than the Texas bill had called for abortion. She writes in her opinion, “…When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners…laws like H.B.2 that do little or nothing for health, but rather strew impediments to abortion cannot survive judicial inspection.” 68

The Supreme Court Case Whole Woman’s Health v. Hellerstedt ultimately reaffirms the constitutional right for a woman to obtain an abortion, and was one of the greater victories that women’s reproductive rights advocates had seen in decades. 69 This case significant in characterizing the unpredictable battlefield that has been federal abortion legislation for instance, Hellerstedt had strengthened precedents that protect abortion, whereas Carhart had done the opposite and broken it down. This fundamental confliction has been present throughout the history of Supreme Court rulings on abortion, and would ultimately be put to the test in Dobbs v. Jackson.

V. DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION: BACKGROUND

The Gestational Age Act is a law in Mississippi which prohibits all abortions after the 15 weeks of gestational age, with only a few cases of exceptions in severe abnormality of the fetus or in narrowly defined medical emergency 70 The only licensed abortion clinic in Mississippi is the Jackson Women’s Health Organization, and one of its doctors decided to challenge the Gestational Age Act, arguing that this statute contradicted the constitutional right to abortion established in Roe v. Wade and in Planned Parenthood v. Casey. 71 This Supreme Court case sought to determine the constitutionality of Mississippi’s law, and ultimately the viability of the Roe and Casey precedents

It was found that the Constitution does not contain a right to abortion, consequentially overruling Roe v. Wade and Planned Parenthood v. Casey This ruling effectively returns the authority to regulate abortion policies to the states. In the majority opinion written by Justice Samuel Alito, he explains that the only legitimate unenumerated rights are the ones that have roots in American history and are important to maintaining ordered liberty the right to abortion was found to not be one of these unenumerated rights.72

The majority opinion, written by Justice Samuel Alito, evaluated the constitutionality of abortion rights on three levels, the its roots in constitutional texts, its roots in United States history and tradition, and finally if and how precedents support it 73 Firstly, the Court determined that abortion rights have no grounding in the Constitution. The Constitution does not explicitly

67 Body Politic: Whole Woman’s Health v. Hellerstedt, Oyez, https://projects.oyez.org/body-politic/ch2#ch2-1

68 Whole Woman’s Health v. Hellerstedt (2016) 579 U.S. 582

69 Whole Woman’s Health v. Hellerstedt, Planned Parenthood Action Fund, https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade/whole-womans-health-v-hellerstedt

70 Dobbs v. Jackson Women’s Health Organization, Oyez, https://www.oyez.org/cases/2021/19-1392

71 Roe v. Wade and Supreme Court Abortion Cases, Brennan Center for Justice, Sept. 28, 2022, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

72 Dobbs v. Jackson Women’s Health Organization (2022) 142 S. Ct. 2228

73 Id.

mention abortion, and the various provisions have been proposed as a potential home for abortion rights do not hold up under scrutiny For one, Roe v. Wade had argued that abortion is an implicit right that can be found in the First, Fourth, Fifth, Ninth, and Fourteenth amendments to the Constitution, characterized as a privacy right.

Secondly, it was also determined that abortion rights are not an inherent part of the “Nation’s history and tradition” and is not quintessential to “ordered liberty”, and is therefore unconstitutional 74 Planned Parenthood v. Casey had rooted the right to abortion in the Fourteenth Amendment’s Due Process Clause as a protection for “liberty”. The Supreme Court holds here that this reasoning is faulty, explaining that the Due Process Clause only protects two types of rights: those guaranteed by Amendments One through Eight to the Constitution, and those not mentioned at all by constitutional texts but are deemed fundamental. Neither one of these conditions are argued to confer a right to abortion, categorizing abortion as not a part of “liberty”. Here, the Court takes on a more originalist and anti-aspirationalist perspective when interpreting the Constitution it chooses to, as Justice Alito writes, “guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.” 75 The Court explains that the Roe decision had not been based on the historical tradition of the nation, and that Casey did not properly reevaluate its historical accuracy. Ultimately, when looking at the history of abortion legislation since the founding days of the United States, Justice Alito determined that the right to abortion is incompatible with this history.

Finally, the Court considered if the right to abortion is supported by previous cases. It was concluded that any precedents cannot support the constitutionality of abortion rights. Alito explained that the doctrine of stare decisis only limits incentives for challenging precedents, and does not call for an automatic acceptance of them. Thus, when reevaluating precedents in this case, the Court found five reasons to overturn Roe and Casey: both cases “short circuited the democratic process”, were not grounded in Constitutional texts, were not “workable”, caused issues with laws in other areas, and finally the act of overturning them would not disturb reliance interests. First, Alito argued that the nature of the Court’s error was immense, and “shortcircuited the democratic process.” He writes, “Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors…”. 76 Essentially, he argues that Roe and Casey’s grounding of abortion rights in privacy rights was incorrect to begin with. The second reason to overturn the precedents was that they did not have foundations in any constitutional texts. Third, the precedents are not “workable”, meaning that they could not be implemented nor understood consistently. Fourth, the precedents have distorted other areas of law and legal doctrines. And finally, fifth, overruling the precedents would not damage reliance interests.

Justice Alito argued that abortion could not be considered a privacy right because, “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential’ life and what the law at issue in this case regards as the life of an ‘unborn human being’.” 77 74 Id. 75 Id. 76 Id. 77 Id.

Justice Clarence Thomas concurred. In Thomas’s concurring opinion, he argues that the Supreme Court should have gone further in reconsidering precedents that were based on substantive due process, including the right to contraception in Griswold v. Connecticut, and even the right to same-sex marriage in Obergefell v. Hodges. He writes in the opinion, “Because any substantive due process decision is ‘demonstrably erroneous’, we have a duty to ‘correct the error’ established in those precedents.” 78

In Justice Brett Kavanaugh’s separate concurring opinion, he explains that the majority decision of the Court does not deem it constitutional to restrict women from traveling across state lines to receive an abortion. He also states that it would be unconstitutional to retroactively prosecute abortions performed before the Dobbs decision that had been previously protected under the Roe and Casey era.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. They argued that if Roe v. Wade was to be overturned under this logic, then that would also mean that other cases concerning bodily autonomy and contraception, for example, would also be overturned. After all, the basis for Roe v. Wade was Griswold v. Connecticut, a case which dealt with access to contraception as a privacy right. Subsequently, these cases had also provided the grounding for same-sex marriage. Based on this reasoning, the dissenting opinion here argues that “…either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” 79

VI. DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION: EFFECTS

The overturn of Roe v. Wade meant that the authority to regulate abortion had returned to the states while the battle over abortion had ended for the time being in the Supreme Court, it would be continued in state legislatures and courts. In the wake of the Dobbs decision, states have come to very divergent conclusions as to how they want to treat abortion. In South Carolina, its highest state court ruled that the right to abortion is protected under its state constitution as a privacy right 80 On the same day, Idaho ruled in the complete opposite direction Its highest state court said that its state constitution did not confer a right to abortion and that the ban on abortion there would stay in place. 81 In addition, thirteen states had trigger laws that banned abortions immediately after the overturn of Roe, and even more states were poised to promptly and severely limit access to abortion.82

The Court had argued that the overturn of Roe v. Wade would return the “authority to regulate abortion…to the people and their elected representatives.” 83 But research and analysis done by Jake Grombach and Christopher Warshaw show that this has not been the case. There are large discrepancies between what people in states want their abortion laws to look like versus the actual laws that have been adopted by their state legislatures. This means that many states

78 Id.

79 Id.

80 Kate Zernike, A Volatile Tool Emerges in the Abortion Battle: State Constitutions, N.Y. TIMES (Jan. 29, 2023), https://www.nytimes.com/2023/01/29/us/abortion-rights-state-constitutions.html?searchResultPosition=2

81 Id.

82 Jesus Jiménez and Nicholas Bogel-Burroughs, What are abortion trigger laws and which states have them?, N.Y. TIMES (Jun. 24, 2022), https://www.nytimes.com/2022/06/25/us/trigger-laws-abortion-states-roe.html

83 Jake Grumbach and Christopher Warshaw, Many states with antiabortion laws have pro-choice majorities, THE WASHINGTON POST (Jun. 25, 2022), https://www.washingtonpost.com/politics/2022/06/25/roe-dobbs-scotusopinon-abortion-restrictions-rights-polarization/

with strong anti-abortion legislation in place actually have pro-abortion majorities. The researchers found that the majority of people in 40 states support legalizing abortion, and only 10 states contain a public majority which opposes abortion rights.84 While many red states have experienced an increase in congruency between abortion policy and public opinion in the wake of more restrictive abortion policies, this has been outweighed by other states with pro-choice majorities that have experienced a decrease in congruence.85 More Americans will live under abortion policies that they do not believe in, ultimately meaning that women seeking abortion will have a much harder time accessing a safe one.

Since the foundation of Roe v Wade was rooted in privacy rights, it’s overturn has had more consequences beyond just abortion. Roe had established that a woman had the right to a private decision regarding abortion, and this has new implications in the modern technological world. In states that have banned abortion in the wake of the Dobbs decision, women seeking to terminate their pregnancy are running out of options. Many women in this type of situation seek to arrange out-of-state abortion procedures, but run the risk of their digital data being tracked that may potentially lead to prosecution in their home state.86 In addition, the period tracking apps that many women use on a daily basis may begin to be a source of concern since they’re used to track periods, pregnancy, contraception, and in some cases even abortion attempts, this data could potentially be used against women if they live in a state with strict abortion regulations that wishes to prosecute.87 Ultimately, the overturn of Roe v. Wade has led to questions and issues surrounding data privacy. In many instances, law enforcement can seek to obtain court orders for personal digital information including location data and other online footprints, and this could be used against women seeking to terminate their pregnancy in states with strict abortion bans.88 The overturn of Roe v. Wade has put reproductive privacy at risk for women, and has put into the limelight the role of digital privacy in an ever-developing technological landscape. It is vitally important to keep abortions accessible for women who want one. Bans on abortions only ban safe abortions. In addition, banning abortions only bans abortions for poor women, particularly women of color in red states. Women that seek abortions and whom have the resources to travel have the option to cross state lines and receive an abortion under a state which allows it. This travel is not accessible to all women, nor should it have been a necessity in the first place. Ultimately, abortion bans will not stop women from seeking abortions. In a study on the reasons why women seek abortions conducted by the Guttmacher Institute, the researchers found that 74% of women who terminated their pregnancy did so because having a child would interfere with their education, work, or their ability to care for their dependents.89 73% could not afford to have a child at the time, and 48% were facing relationship issues or did not wish to be a

84 Id.

85 Id.

86 Andrew Ross Sorkin, Vivian Giang, Stephen Gandel, Lauren Hirsch, Ephrat Livni, and Jenny Gross, Reconsidering Privacy Risks After Roe, N.Y. TIMES (Jun. 30, 2022), https://www.nytimes.com/2022/06/30/business/dealbook/abortion-privacy-risks-data.html?searchResultPosition=4

87 Id.

88 Natasha Singer and Brian X. Chen, In a Post-Roe World, the Future of Digital Privacy Looks Even Grimmer, N.Y. TIMES (Jul. 13, 2022), https://www.nytimes.com/2022/07/13/technology/personaltech/abortion-privacy-roesurveillance.html?searchResultPosition=3

89 Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, Ann M. Moore, Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, Guttmacher Institute (Sept. 1, 2005), https://www.guttmacher.org/journals/psrh/2005/reasons-us-women-have-abortions-quantitative-and-qualitativeperspectives

single mother.90 Motherhood is not something that all women are prepared to take on, so as long as these are factors women must consider, abortion should always be a safe and accessible option. All in all, Roe v. Wade’s misstep in grounding abortion rights in privacy rights led to its overturn in Dobbs v. Jackson, and has culminated in a loss in the fight for women’s reproductive justice.

VII. EVALUATING THE OVERTURN OF ABORTION RIGHTS

To begin, the Dobbs decision proved to be controversial, and its reasoning begins to crumble under close scrutiny. Under the logic used to overturn Roe v. Wade and Planned Parenthood v. Casey, it would also seem logical that cases such as Griswold v. Connecticut which utilized a similar reasoning as Roe also should be overturned, and the court did not explain further on this matter. 91 Justice Alito also had argued in the majority opinion that unenumerated rights need to be rooted in the nation’s history. This reasoning is incompatible with historically marginalized identities in the United States the only rights that would be “deeply rooted in the Nation’s history” 92 would be those that catered to the wealthy, cisgender, heterosexual, white men who have historically dominated society and the government especially during the founding of the country. Ultimately, the Roe v. Wade decision did not contain a substantial foundation to protect abortion rights in the long term. Had Roe not been about the physician’s right to privacy to perform an abortion and instead dealt with the civil right for a woman to choose an abortion, that may have proven to be a stronger foundation to protect women’s reproductive rights in the United States. The right to abortion became an inferred right rather than a guaranteed one. This one misstep in the history of abortion rights has caused issues for the long run.

The argument that the right to abortion should be grounded in equal protection for women has been present since the early years of the abortion-rights movements, and was even one of the arguments presented to the Supreme Court in Roe v. Wade, although unsuccessfully.93 This was an argument which asserted that women could not participate in society as equal citizens to men if they could not control their own reproduction and control their own bodily autonomy after all, laws which restricted abortion historically have been written and enforced by men, with the burden of these restrictions falling completely on women. Roe v. Wade has generally been seen as a win for abortion rights and it was, it had constitutionally established the right to abortion. The late Supreme Court Justice Ruth Bader Ginsburg, often seen as a protector of women’s reproductive rights, had long criticized the grounding of Roe v. Wade’s decision, and believed that its same outcome could have been achieved in a much more secure way. She said at a lecture at New York University Law School, “The Roe decision might have been less of a storm center… [had it] homed in more precisely on the women’s-equality dimension of the issue”.94 Instead of finding the right to abortion within privacy rights like Roe v.

90 Id.

91 Roe v. Wade and Supreme Court Abortion Cases, Brennan Center for Justice (Sept. 28, 2022), https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

92 Dobbs v. Jackson Women’s Health Organization (2022) 142 S. Ct. 2228

93 Roe v. Wade (1973), 410, U.S. 113

94 Linda Greenhouse, On Privacy and Equality; Judge Ginsburg Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling, N.Y. TIMES (Jun. 16, 1993), https://www.nytimes.com/1993/06/16/us/privacy-equality-judgeginsburg-still-voices-strong-doubts-rationale-behind-roe.html?searchResultPosition=8

Wade had, she argues that grounding abortion in women’s equality and civil rights would have been a more secure constitutional foundation.

Ginsburg also criticized Roe, arguing that it had reached too far with too little justification to back it up.95 She believed that it would have been better had the court simply found the Texas law unconstitutional and did not discuss abortion further, allowing for future cases to build on top of it.96 In the same lecture at New York University, she also said that Roe had “halted a political process that was moving in a reform direction and thereby…prolonged divisiveness and deferred stable settlement of the issue.” 97 All in all, abortion should not have initially been associated with privacy rights, and instead been linked to civil rights if anything at all this misstep ultimately contributed to the overturn of the constitutional right for women to receive an abortion

While privacy rights were not the most stable long-term home for abortion rights, it was the best that Roe v. Wade could offer at the time. Since Griswold was one of the few relevant precedents to work with, establishing the right to abortion on top of this precedent and its use of privacy rights was successful in winning the case and securing the right to abortion for women for at least the time being. Consequentially, abortion cases following Roe v. Wade, specifically Planned Parenthood v. Casey, did not continue to address the strength of the constitutional argument and merely relied on it as a precedent. To justify arguments in Roe v. Wade, it was difficult to do so with so little precedents to work with. This led to a reliance on the few they did have Griswold v. Connecticut was one of these precedents. While it was successful in winning the case, it ended up establishing a woman’s right to abortion as a privacy right, even though this may not have been the best home to lay foundations in.98 In all, the decision in Roe was laid upon the decision made in Griswold which was laid upon a right to privacy that was somewhat construed from the Constitution. Since Griswold had already dealt with issues of reproductive rights, it was most convenient to rest Roe atop it, despite its already shaky foundations.

The Roe decision was able to be struck down because, at the end of the day, it is a valid constitutional argument to say that abortion could not count as a privacy right, since “privacy” is a broad term Instead of addressing the question of whether or not abortion should be legalized, the Supreme Court in Dobbs v. Jackson was able to simply say that abortion had no connection to privacy, and thus overturn Roe. Ultimately, had Roe been a case about how abortion is an aspect of civil rights and women’s equality, it would have been much harder for the Court to argue that abortion is not part of equal rights, and Dobbs may not have played out the same way that it did Instead of grounding the right to abortion as a privacy right under the Due Process Clause, it should have been grounded as an equality right under the Equal Protections Clause. If the nature of Roe could not have been changed, other cases could have proved to create a better precedent for abortion rights. For instance, Ginsburg wished that the first reproductive freedom case that the Supreme Court ever heard could have been Struck v. Secretary of Defense

95 David G. Savage, Where Roe went wrong: A sweeping new abortion right built on a shaky legal foundation, L.A. TIMES (May 3, 2022), https://www.latimes.com/politics/story/2022-05-03/how-roe-vs-wade-went-wrong-broadnew-right-to-abortion-rested-on-a-shaky-legal-foundation

96 Id.

97 David J. Garrow, A Look at…Roe v. Wade. Ginsburg: History Lesson for the Judge, The Washington Post (Jun. 20, 1993), https://www.washingtonpost.com/archive/opinions/1993/06/20/a-look-at-rove-v-wade-v-ginsburghistory-lesson-for-the-judge/6a8b1b10-0089-4b17-aec4-a17fc8d4bcf4/

98 Michael Barbaro, The Legal Vulnerability of Roe v. Wade, N.Y. TIMES (May 20, 2019), https://www.nytimes.com/2019/05/20/podcasts/the-daily/supreme-court-abortion.html?showTranscript=1

(1972), and not Roe v. Wade.99 In Struck v. Secretary of Defense, it dealt with an Air Force regulation had required that pregnant women would have to get an abortion or otherwise face discharge Captain Susan Struck was pregnant, but wished to keep the baby as well as her position.100 Struck argued that this regulation violated her rights to Equal Protection, and her case made it to the Supreme Court. But, the Air Force, upon realizing they were going to lose the case, threw out their regulation, which caused the Supreme Court to conclude the case as moot. Ginsburg argues that if this case had been successful, the right to abortion could have had a much stronger foundation to prevent overturn.101 Especially since this case dealt directly with abortion in relation to Equal Protection, Ginsburg believed that the Court could have gotten a better understanding that abortion is about the woman’s choice, and not at all about physician privacy as Roe had argued 102Roe had to struggle to grasp any foothold to keep the right to abortion afloat, landing upon privacy rights as the surest route to the case’s success. Yet. other cases could have made it easier for the Court to connect abortion rights to equal rights, ultimately creating a safer foundation for women’s reproductive rights in the long term.

In the wake of the landmark case Dobbs v. Jackson, the big question remains: what now for women’s reproductive rights? It is now even more vital that pro-choice advocates continue the fight at the state level, calling for an expansion of civil liberties and civil rights in state constitutions to cover abortion protections. It is important to continue advocating for abortion procedures as healthcare, to spread accurate information about the need for access to safe abortions to help the minds of the public, and to pressure state legislatures into reflecting public opinion. The longer that women do not have access to necessary abortions, the more risks this poses this ultimately risks pregnant women’s mental and physical health, as well as economic gender inequality, maternal mortality rates, child poverty, and more serious consequences to public health and welfare.

VIII. CONCLUSION

In the end, Roe v. Wade’s grounding in privacy rights as successful in securing protections for abortions for some time, but this ultimately proved to be a rocky foundation in the long run. The Roe decision was no doubt a breakthrough at the time, but because of the inherent scope of the case and a lack of precedents to work with, Roe did the best that it could at its time. Unfortunately, this led to a sort of path dependency for future abortion cases and created a legal mold that would prove hard to exit without breaking since Roe v. Wade had been rooted in privacy rights, subsequent cases also cited privacy rights because of precedent, continuing to rely on and promote this false stability.

It can be argued that lawyers in Roe could have chosen to base the case upon equal rights grounds, or that other different could have proven to be better stepping stones to achieve abortion protections, but inevitably these are all very big and unprovable “what ifs”. But, what is certain is that the overturn of Roe v. Wade in Dobbs v. Jackson marks very important turning point for

99 Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit, The University of Chicago Law School (May 15, 2013), https://www.law.uchicago.edu/news/justice-ruth-baderginsburg-offers-critique-roe-v-wade-during-law-school-visit

100 Id.

101 Id.

102 Id.

the history of abortion protections in the United States. After nearly 50 years of Roe v. Wade protecting a woman’s right to choose abortion on the federal level, the Supreme Court completely flipped on precedent and choose to separate abortion rights from constitutional texts. Because of this decision, current anti-abortion sentiments are becoming ever more prevalent, and more restrictive abortion regulations are popping up around the country. Though, the overturn of Roe v. Wade does not mean that the fight for women’s reproductive rights have halted it has only shifted from the federal level to the state level. Without the protections that Roe v. Wade had provided, even if it was limited to begin with, women’s reproductive rights are becoming increasingly jeopardized without the presence of strong federal constitutional protection While abortion is very unlikely to be outlawed everywhere in the United States, a lack of federal protection will lead to major inconsistencies in abortion access. For instance, upper class women are much less impacted by antiabortion legislation than lower class women. Even if wealthier women who seek abortion happen to live in states with abortion bans, they can still potentially access abortion care as they can afford to travel to places where abortion is legal. On the other hand, poorer women simply do not have the resources to do the same. This means that lower class women will not have an equal choice when it comes to abortion something that seems antithetical to traditional American values of freedom and equality. In conclusion, while justifications for abortion rights in Roe v. Wade were not as secure as it could have been, it is vitally important moving forward to remember that women should have the choice to have an abortion unfortunately, abortion as an aspect of equal rights for women will not be considered a part of the “nation’s history and tradition”, at least for the time being.

Free Speech on the Internet: Section 230’s Future as a Precedent Brooke

McKenna

Edited by Roksana Gorgolewski

With today’s ever-expanding online infosphere,1 all three branches of the federal government have attempted to regulate various aspects of what is shared, allowed, and monitored on the internet. With rapidly-advancing technology and more accessibility and usage of the internet every day, legal precedents addressing varying circumstances have flooded all levels of the courts. The idea of creating laws specific to the growth of the internet, especially on sharing platforms such as social media, seems an impossible feat. The application of Section 230 of the 1996 Communications Decency Act has served as an umbrella under which many cases fall. Its enactment has protected social media companies from liability cases regarding obscene2 content, defamation, and even intellectual property rights. Protection of free speech, and protection of minors on the internet whilst maintaining a safe and equal platform for both social media conglomerates and the individual user is heavily dependent on the Supreme Court’s interpretation of Section 230 in current historically significant free speech cases regarding online activity.

1 Page 43 title 47 Telecommunications §201 (1) Internet , (1996), https://www.govinfo.gov/content/pkg/USCODE-2020-title47/pdf/USCODE-2020-title47-chap5-subchapII.pdf (last visited Mar 17, 2023).

2 Miller test is defined as Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Any material that satisfies this three-pronged test may be found obscene. See 18 U.S.C. § 1460; 18 U.S.C. § 1461; 18 U.S.C. § 1462; 18 U.S.C. § 1463

Freedom of speech is a foundational right of all Americans, enjoyed by residents of the United States every day. With the emergence of the internet, questions regarding the extent of free speech on private entity platforms, constraints on controversial content, and definitions of “indecent” or “unacceptable” subject matter have been brought to the attention of the American public. Since the landmark decision of 1997 Reno v. the American Civil Liberties Union 521 U.S. 844 (1997), defining the boundaries of internet free speech have been highly contested on the state and federal level. The contention surrounding the idea and practice of free speech, both in its theory and reality, serve as a consistent point of controversy and debate within the American government and its constituents. Since the United States’ founding, its laws, and its court system, freedom of speech and expression have been part of what defines a liberated and sovereign nation. In the context of the United States and its laws and regulations regarding free speech, much has been contested, established, abolished, and regulated as the diversity of America’s population evolves, technology advances, and the United States Supreme Court establishes more precedents regarding the limits and boundaries of free speech.

The definition of free speech has changed and developed. Since the passage of the 1798 Alien and Sedition Acts, free speech and the regulations placed upon it by the federal and state governments has altered in what constitutes unlawful, hateful, or unconstitutional rulings in the context of free speech. As Farber notes, “[t]he Sedition Act was never directly tested in the Supreme Court. Even if the act had come before the court of its day, and if, perchance, it had been found unconstitutional, the decision might have been on the premise that the act was an illegal extension of federal power and not that it violated the court’s concept of the central meaning of the First Amendment.”3 With the evolution of technology and the emergence of social media in modern times, the complexities of free speech’s very existence in the confines of the internet, and the repercussions of such, have various ramifications in the eyes of the Supreme Court, as well as how the United States’ government is bound to interpret a citizen’s constitutional First Amendment rights as technological advancements only continue to expand both in accessibility and usage on a massive scale.

The issue with categorizing social media platforms as publishers when they play a more proactive role in the regulation of content within their sites is that when obscene4, hateful5 ,

3 Alan J. Farber, Reflections on the Sedition Acts of 1798

Vol. 62 (Last Visited Mar 16, 2023). No. 3 March 1976 of American Bar Association Journal on JStor (1976) Https://Www.Jstor.Org/Stable/I25727538 (Last Visited Mar 16, 2023).

4 Supra note 2 See 18 U.S.C. § 1460; 18 U.S.C. § 1461; 18 U.S.C. § 1462; 18 U.S.C. § 1463

5 Hate speech is defined as “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin.”

See "Hate Speech and Hate Crime", American Library Association, December 12, 2017. http://www.ala.org/advocacy/intfreedom/hate (Accessed March 16, 2023)

misinformed6, or malicious7 content is shared on their sites, they could be held liable. In court cases such as New York Times v. Sullivan 376 U.S. 254 (1964), where Sullivan sued the New York times for alleged libel regarding a factual error in an advertisement that was published, it was ruled that in order to classify an act or publication as libel there must be malintent. “We consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for the respondent under the proper rule of law.”8 Applying the New York Times v. Sullivan in the modern context in the realm of internet publications, it is unclear whether social media platforms can be classified in the same category as publication platforms such as broadcast media as they do not uphold the same federal frequency regulation.

To understand the implications of modern era regulations regarding free speech, such as Section 230 of the 1996 Communications Decency Act, one must first observe the precedents set by free speech cases regarding print and broadcast media prior to the invention of the internet, and how these both do and do not apply to contemporary cases regarding online content and communications and free speech. Additionally, a major point of debate in the context of free speech and the internet is what defines a public and private marketplace The issues surrounding liability and accountability are highly contested amongst state, appellate and even the federal courts. With an ever-changing internet-sphere, categorizing fault for first amendment free speech violations both on the regulatory side of the individual, as well as the censorship aspect regarding the government and social media platforms is becoming a forefront issue for companies and their customers. Historically, government suppression of publishing has been an issue brought to all levels of the courts since the country’s founding. In the context of the 1931 Supreme Court Case

Near v. Minnesota 283 U.S. 697 (1931), 9 the majority opinion held, “[t]he fact that for approximately 150 years there has been an almost entire absence of attempts to impose previous restraints upon publications … is significant of the deep-seated conviction that restraints would violate constitutional right.” Friendly in his article quotes the majority opinion statement by writing, “to require a publisher to prove in a court of law truth without malice before publication ‘is the essence of censorship.’”10 Unlike print and broadcast media, social media publications do not uphold comparable regulations to frequency regulation in broadcast media, or the regulations in print media. Publication regulations, such as pornographic content regulation, exist in the sphere of broadcast media.11 However, it is unregulated, or much less regulated on platforms

6 Misinformation is defined as “Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title.”

See 18 U.S. Code § 1038

7 Malice is defined as, “With knowledge that it was false or with reckless disregard of whether it was false or not.”

See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

8 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

9 Near v Minnesota, 283 U.S. 697 (1931) 51 S. Ct. 625

10 Fred W. Friendly, CENSORSHIP AND JOURNALISTS'PRIVILEGE:THE CASE OF NEAR VERSUS MINNESOTA:A HALF

CENTURY LATER JSTOR (1978), https://www.jstor.org/stable/20178574 (last visited Mar 17, 2023).

11 Jacobellis v. Ohio, 378 U.S. 184 (1964)

such as cable media and in the modern context, the internet; more specifically, social media. The major surrounding question in regards to how social media platforms operate under the guidelines of federal law is based on if social media companies and their platforms identify as part of the public or private marketplace. As numerous state governments currently define it, social media platforms are within the public marketplace. 12

The Communications Decency Act of 1996 (1996 CDA) established major protections for social media conglomerates and the liability claims against them in the context of hate speech, misinformation, defamation, and most notably surrounding issues regarding minor protections and obscene or indecent content shared on their respective platforms. Section 230 of the 1996 Communications Decency Act has served as a foundational protection for social media companies in regards to liability claims. In the Supreme Court Case, New York Times v Sullivan, the court aligned social media platforms’ accountability and liability to that of a newspaper; however, they did not uphold that these same companies, both the New York Times and all those in print media, were responsible for content and protected under Section 230. In the context of current court cases under Supreme Court review such as Gonzalez v. Google 2 F.4th 871 (2021), or Twitter v. Taamneh 343 F.Supp.3d 904 (2018), the boundaries of Section 230 within the 1996 Communications Decency Act are being tested. The legal relationship between the continuing viability of precedents regarding traditional media and contemporary, social media and internet content is a highly contested and increasingly relevant issue within all levels of the United States’ court system and government. Establishing such precedents of clear parallels between print, broadcast, and internet media will be determined by cases such as Gonzalez v. Google and Twitter v. Taamneh. The broadness and relatability of Section 230 to internet free speech cases is currently being tested in the federal courts, and being highly observed by the American public.

I. BACKGROUND: COURT CASES AND SECTION 230’S EFFECTS

A. 1996 Communications Decency Act- Section 230

To fully understand the effects, implications, and applicability of Section 230 on preceding court cases it is vital to first analyze the content within the Communications Decency Act itself. When first introduced to Congress in 1995, the Communications Decency Act was brought to the floor in an effort to amend the 1934 Communications Act. The bill’s intended purposes were as follows:

“Prohibits the repeated use of a telecommunications device solely for harassment purposes. Prohibits a person from allowing the use of any telecommunications facility (currently, telephone facility) in his or her control for such purposes. Increases: (1) the fine and maximum

12 Florida State Government defines social media platform as “ include[ing] any service that “[p]rovides or enables computer access by multiple users to a computer server,” operates as a “legal entity,” and does business in the state.”

See Free Speech Challenges to Florida and Texas Social Media Laws - Congress, CONGRESSIONAL RESEARCH

SERVICE (2022), https://crsreports.congress.gov/product/pdf/LSB/LSB10748 (last visited Mar 16, 2023).

sentence for such violations; and (2) the fine for the transmission over a cable system of obscene or otherwise unprotected material.”13

Within Section 230 of the 1996 Communications Decency Act Bill, the proposal acknowledges the power that the ever-growing internet holds within the educational and informational realm.14 Section 230, although initially established in the context of telecommunications,15 has expanded in its applicability across various and numerous social media platform court cases both on the state and federal level. In 1997 Representative Goodlatte shared fears of not upholding protections, stating the internet serves as a: “Challenge to the sovereignty of civilized communities, states, and nations to decide what is decent and appropriate behavior.”16 The widely applicable nature of Section 230 is what empowers so many social media platform companies to feel effectively secure in their liability protections under it. The Section 230 language and rhetoric promotes a broad and “adaptable” relevancy, as it acknowledges the rapidly changing nature of the internet. Section 230’s main distinction is that it views social media platforms not as publishers, unlike entities such as newspapers or broadcast media for the content they share and contain on their platforms. The protections provided under this aspect of Section 230 classify that when defining social media companies and platforms, they cannot be viewed as publishers, but rather distributors of the content which they maintain.17

In Goodman and Whittington’s essay, “Section 230 Of The Communications Decency Act And The Future Of Online Speech” they assert that although Section 230 is viewed as an allencompassing act that provides social media platforms and internet companies with broad liability protections, it does have limitations in its limits as a minor protection act. Goodman and Whittington cite the example of Fair Housing Council of San Fernando Valley v. Roommates.com 521 F.3d 1157 (2008) which distinguishes the distribution of content in contrast with aiding the creation of content which classifies the producer and associates as publishers.18 Section 230’s widely applicable and relevant nature in the context of cases regarding free speech on the internet has become a widely debated topic among Congress, the court system, and the American public.

13S.314 104th Congress (1995-1996): Communications Decency Act of 1995, S. 314, 104th Cong. (1995-1996), https://www.congress.gov/bill/104th-congress/senate-bill/314

14 Supra note 1 See Telecommunications §201

15 Telecommunications is defined as, “The transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

See 47 U.S. Code § 153

16 Developments in the Law: The Law of Cyberspace, Vol. 112 HARVARD LAW REVIEW 1574–1704 (1999).

17 “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Supra note 1

18 Ellen P. Goodman & Ryan Whittington, Section 230 Of The Communications Decency Act And The Future Of Online Speech, GERMAN MARSHALL FUND OF THE UNITED STATES 5

20 (2019).

Gonzalez v. Google is a case currently under review by the Supreme Court. The implications of this decision may result in a re-evaluation of the scope and applicability of Section 230 of the Communications Decency Act in the context of liability protections for social media platforms and their respective companies. This case involves Nohemi Gonzalez, a victim of the terrorist organization ISIS. The terrorist group shared a YouTube video and a written statement claiming responsibility for the attack on multiple social media platforms, claiming responsibility for Gonzalez’s death, along with video evidence of their terrorist attack in Paris, France that killed Gonzalez.20 Appellate and district court cases ruled in favor of liability protections for Google, and other social media platforms alike under the jurisdiction of Section 230 of the Communications Decency Act. “All of these claims fall within the scope of the CDA’s immunity provision and are thus barred.”21 In a lower court decision in the context of the Gonzalez v. Google case, the circuit court ruled, “Section 203I(l) of the Communications Decency Act immunizes “an "interactive computer service" (such as YouTube, Google, Facebook and Twitter) for "publish[ing] Information provided by another" "information content "provider" (such as someone who posts a video on YouTube or a statement on Facebook).22 Although there has been widespread agreement of this ruling, there has been much discourse in the rejection of the holding. For example, in the case of Gonzalez v. Google, three appellate judges as of October 2022 have concluded that Section 230 of the Communications Decency Act does not protect Google and other social media platforms, as they were creating a passive environment that enabled ISIS to share their harmful content on a massive and global scale.23 This case’s ruling on the federal level will serve as an important precedent for how far Section 230 of the Communications Decency Act can be extended, and will redefine the limits of Section 230.

The importance of current cases in the context of re-evaluating the implications and broadness of applicability for Section 230 of the 1996 Communications Decency Act is that they will set the precedent for future cases regarding the limits of free speech on the internet. These determinants include who is held liable, who is defined as the “publisher” of online content, how responsible distributors of social media content can be held, and how to define what involvement in publication means for social media platforms. A major aspect of this argument is found in algorithm formulas that social media platforms and companies utilize to maximize the user experience, and push content that would appeal to them based on their online activity. These trademarked algorithms fall under the jurisdiction of intellectual property rights.

19 Note Gonzalez v. Google is an ongoing and pending case as of March 16, 2023.

20 Gonzalez v. Google, Google Scholar (2021), https://scholar.google.com/scholar_case?case=13569769879169943936&q=gonzalez+v.+google&hl=en&as_sdt= 8006 (last visited Mar 16, 2023).

21 Reynaldo Gonzalez v. Google Inc., 335 F.Supp.3d 1156 (2018)

2221-1333 Gonzalez v. Google LLC, SUPREMECOURT GOV (2022), https://www.supremecourt.gov/docket/docketfiles/html/qp/21-01333qp.pdf (last visited Mar 17, 2023).

23 Id.

The Ninth Circuit court cited the precedent of Dyroff v. Ultimate Software Group 934 F.3d 1093 (2019), concluding software neutral algorithms do not expose third party entities, such as the creators and owners of social media platform companies, liable to content shared within their internet space in the context of defamation, hate speech, or misinformation.24 In the court case Malwarebytes, Inc. V. Enigma Software Group Usa, LLC 141 S.Ct. 13 (2020), Supreme Court Justice Thomas critiqued the wide-stroke usage of Section 230 as an all-encompassing protection status for third party entities and social media platforms, emphasizing it does have limitations that must be addressed in relevant future hearings and cases brought to the Supreme Court to establish this precedent of limitations.25 The claims involved in this case among others that intellectual property rights of algorithms should or should not be protected, or should be labeled as abetting or assisting users such as ISIS for spreading their message is a point of contention for the court, likely to be addressed in the 2023 hearing of Twitter v. Taamneh. As Gonzalez v. Google is now being heard by the Supreme Court officially as of October 2022, this case will serve that exact purpose: to establish a new view of the limitations Section 230 of the Communications Decency Act it maintains.

C. Twitter v. Taamneh

The case of Twitter v. Taamneh is derived from the same facts as the October 2022 Supreme Court hearing of Gonzalez v. Google. The case involves the death of Nohemi Gonzalez in a terrorist attack carried out in Paris in 2015. In this case, unlike in Gonzalez v. Google, the question revolves around the liability limits of algorithms for social media platforms. The question remains for the courts to determine if the algorithms serve as a method of the social media companies, such as YouTube and Google for partially creating the content, or pushing it on other users based on their viewing and interaction history.26 In the district courts, Section 230 was upheld in defense of Google, establishing that under Section 230 of the Communications Decency Act the company could not be held liable for the ISIS content shared on their platforms based solely on their implementation of their content algorithms. The plaintiff’s position is not arguing regarding the content ISIS shared on the social media platform, Twitter, in and of itself, but rather that the algorithms of the said social media platform, create “unique content by combining the ISIS postings with advertisements selected by Defendants based upon ISIS's postings and the viewer looking at the postings and the advertisements.”27 This case revolves around the generalized accusation against Twitter and similar social media platforms such as Google and YouTube that their trademarked algorithms “aided and abetted” international

24Dyroff v. Ultimate Software Group, No. 18-15175 (2019).

25Malwarebytes, Inc. v. Enigma Software Group USA, LLC, SUPREMECOURT GOV (2020), https://www.supremecourt.gov/opinions/20pdf/19-1284_869d.pdf (last visited Mar 17, 2023).

26 21-1333 Gonzalez v. Google LLC, SUPREMECOURT GOV (2022), https://www.supremecourt.gov/docket/docketfiles/html/qp/21-01333qp.pdf (last visited Mar 17, 2023).

27 Id.

terrorism and they should therefore be held accountable, and not be protected by Section 230 of the Communications Decency Act.28

The conclusion of the Supreme Court regarding this case is pending. In 2018, the United States District Court, N.D, California, granted the Defendant, Twitter and its social media platform associates, with their motion in their defense entirely.29 However, this ruling was appealed by the Ninth Circuit United States Court of Appeals; thereby, it is currently being heard by the U.S Supreme Court.

The cases of Twitter v. Taamneh and Gonzalez v. Google are landmark cases that will determine the lengths to which Section 230 can, and should, be referred to in protection for social media companies in labeling them as publishers or distributors, or a combination of both definitions. Supreme Justice Thomas has already inferred that these cases will be used to outline the limitations of Section 230, as they are the appropriate and relevant cases to do this.30 The outcomes of these cases are contingent upon how popular among the justices Supreme Court Thomas’ opinion regarding the limits of Section 230, and how its applicability on the current widely spread level it maintains should be limited further.

D. Netchoice, LLC, And The Computer & Communications Industry Association V. Attorney General, State Of Florida

Florida Senate Bill 7202, which passed May 24, 2021, was established in order to “restrict internet services’ ability to moderate content and impose certain disclosure obligations on those services.”31 In defining what qualifies as a social media platform, the state legislature maintained broad terminology in order to encompass various categorizations of online business entities that contain sharing or social content on their sites. Other provisions within the bill include regulations on the frequency in changing terms of agreement for services, censorship abilities, transparency on the following for every user, and for users to have the ability to opt out of some aspects of the company’s monitoring and moderation services. 32 The case brought to the Supreme Court regarding Florida Senate Bill 7202, Netchoice, LLC, And The Computer & Communications Industry Association V. Attorney General, State Of Florida 34 F.4th 1196 (2022) is a landmark decision that could serve as the foundation for granting states the right to regulate what social media platforms can and cannot censor within their private entities. This would be giving grounds for the government to define social media platforms and other internet services as part of the public marketplace, thereby stripping them of private marketplace identity and the rights that are encompassed within that. As of May 23, 2022, the Eleventh Circuit has upheld these transparency requirements for social media platforms to maintain. On September 1,

28 Id.

29 Taamneh v. Twitter, Inc., Case No. 17-cv-04107-EMC (2018).

30Supra note 23

31Free Speech Challenges to Florida and Texas Social Media Laws - Congress, CRSREPORTS CONGRESS GOV (2022), https://crsreports.congress.gov/product/pdf/LSB/LSB10748 (last visited Mar 16, 2023).

32Id.

2022 Florida state government filed for a Supreme Court Review, and as of October 2022 Netchoice has filed a cross-petition regarding this case.33

II. OUTCOME OF GONZALEZ V. GOOGLE AND TWITTER V. TAAMNEH: IMPLICATIONS

The applicability of Section 230 and it maintaining its relevance as the arguably most important law regarding free speech and the internet since its creation hangs in the balance on the contingency of the court’s decision. Legal precedents in district and appellate courts have provided much uncertainty and controversial discourse that has led to these court cases being brought to, heard, and eventually decided upon by the United States Supreme Court. With little historical context in the age of the internet, regulation on both sides of government monitoring in the context of social media platform censorship, reserving the rights of said platform company’s First amendment rights, and the individual user’s rights to their own First amendment rights and free speech protections are all necessary aspects to consider in a Supreme Court decision. Equally, minor protection in reference to online protections, whilst simultaneously preserving the First amendment rights of all parties involved are vital aspects of any court decision to observe.

As stated by Frederick Mostert in his article, “Free Speech and Internet Regulation,” all groups involved in the current conservation of balancing First amendment protection and internet speech regulation must come to a unified consensus of regulations, or universal law that clearly defines the boundaries. “The stakeholders will need to develop uniform guidance at international Summits with full transparency. Experience dictates that for this to work, a clear and consistent set of global rules need to be established a type of ius gentium, natural law or Law Merchant in the form of a universal body of customary rules.”34 On a superficial level, this resolution appears simplistic in its nature, and ignorant of the complexities that come with multi-party stakeholders and the varying factors that persuade and determine a Supreme Court ruling and legal precedent. However, if applied effectively at least initially on a national level, many of the conflicts that occur between court levels, state and federal legislatures, and even the private sector of social media companies and individual users could be avoided. With the proceedings of the Gonzalez v. Google and Twitter v. Taamneh, the court is currently being granted the opportunity to establish these transparency and “common law” provisions that could serve as a new era for free speech regulations on the internet. Especially in regards to minor protections online, and regulation on speech that involves hate, malice, harassment, or the spreading of misinformation. As asserted by Samuel F. Miller in his piece, “Prescriptive Jurisdiction over Internet Activity: The Need to Define and Establish the Boundaries of Cyber Liberty,” “Cyber liberty is not without limits. The individual must sacrifice

33 Netchoice, Llc V. Attorney General, State Of Florida, No. 21-12355 (2022).

34 Frederick Mostert, Free Speech and Internet Regulation, 14 JOURNAL OF I

AW & PRACTICE 607

612 (2019).

some measure of natural liberty for the protection and security afforded by governance.”35 The importance of maintaining state and federal sovereignty is vital to the maintenance of first amendment rights and freedom of speech, a foundational right the American government has fiercely and staunchly preserved.

With the future of the Communication Decency Act’s Section 230 undetermined in the context of current Supreme Court Case rulings, one must utilize the rulings based on broadcast and print media, and determine how social media platforms can be categorized; within the public or private marketplace, in order to fully evaluate and understand the implications of such rulings in regards to freedom of speech on the internet. It is of the utmost importance that the protections against harassment or online abuse is a priority of the courts whilst establishing a legal precedent in their rulings of cases Gonzalez v. Google and Twitter v. Taamneh. In Wittes’ and Citron’s piece, “The Internet Will Not Break: Denying Bad Samaritans Sec. 230 Immunity Symposium: Terrorist Incitement on the Internet” they state:

“Section 230 is overdue for a rethinking… Its overbroad interpretation has left victims of online abuse with no leverage against site operators whose business models facilitate abuse. This state of affairs can be changed without undermining free expression and innovation. Broad protections for free speech and clear rules of the road are important for online platforms to operate with confidence.”36

Resolution in defining Section 230 of the Communications Decency Act must uphold a consideration of individuals’ protections on the internet. Although much of the argument centers around company protections as an entity against liability or defamation claims, protections upheld outside of the internet such as against harassment, misinformation in other forms of media, and minor protections must be addressed in the legal precedents set by the Supreme Court decisions in Gonzalez v. Google and Twitter v. Taamneh.

III. CONCLUSION

Since the founding of the United States, First amendment rights have been highly regarded and an utmost priority in protecting the rights of individuals and groups such as companies under United States law. With the emergence of the internet and its complex makeup, user demographic, and rapidly growing expansion every day, the court system is faced with establishing a legal precedent and transparent guidelines that online media platforms, companies, governments, and users alike can operate under. In creating such guidelines, historical context and precedent is limited, as the age of the internet has been small in the context of American history. In order to keep pace with an increasingly interconnected and technology-driven society, clear and equal protection rights for all stakeholders is key to maintaining peace and order within society online.

35 Samuel F. Miller, Prescriptive Jurisdiction Over Internet Activity: The Need to Define and Establish the Boundaries of Cyber Liberty, 10 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 227–254 (2003).

36Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans Sec. 230 Immunity, 86 FORDHAM L. REV. 401 (2017).

The comparison and application of court cases in the context of internet activity and free speech can no longer be applied to precedents regarding print and broadcast media; comparison of completely different entities is fruitless and unsustainable as the scope of the internet is only growing, unparalleled to print and broadcast media growth throughout history.

The Supreme Court’s interpretation of Section 230 will determine the boundaries and limitations of liability protections for social media companies and contribute to defining free speech rights on the internet.

The Constitutionality of the 2022 Assault Weapons Ban Weapons Ban

Grace Song

Edited by Tyler Drake

The Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen protected and reaffirmed the individual’s right to carry concealed weapons in the United States. With the rise of gun violence and mass shootings, President Biden’s administration is fervently pushing for an assault weapon ban to combat the scourge of gun violence concerning mass shootings. This paper explorestheconstitutionalityofstate lawsbanning semiautomaticassault-style weaponsand largecapacity ammunition-feeding devices presented in the recent renewal of the Assault Weapons Ban of 2022. Historians argued whether state and local assault weapons bans violate the individual’s constitutional right to bear arms. The paper argues that the Assault Weapons Ban of 2022 is constitutional through a historical account of the Second Amendment.

A. Historical Context of 2nd Amendment and How it has Evolved in the Modern Age

The Second Amendment discourse and application of the right to bear arms traces its early origins to the English Bill of Rights of 1689 due to the English Crown’s desire for sovereign power and use of local militias to strengthen the standing army.1 During America’s Founding era, local communities created citizen militias to provide for the common defense against potentially threatening power and force from standing armies.

During the United States’ servitude under the British Crown, King George III “affected to render the Military independent of and superior to the Civil power” and had “kept among us, in times of peace, Standing Armies without the consent of our legislatures.”2 As a result, using standing armies without the consent of legislatures has been deemed a threat to civilian safety and liberty. Following the Revolutionary War, many states, such as Pennsylvania and Massachusetts, sought to incorporate a constitutional right to bear arms for civilians in their Declaration of Rights. Both states supported the right for civilian self-defense and the state's defense. For instance, Article XIII of the Pennsylvania Declaration of Rights of 1776 states:

“That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, civil power.”3

As James Madison and the Federalists who controlled the First Congress interpreted the Second Amendment, the original design of the amendment was to preserve the power of the national government to maintain order while reaffirming that the states would always have the ability to organize, train, and if necessary arm their militia, so long as they were well regulated.4 To defend themselves against government tyranny, the original intention of the Second Amendment focused on preserving the civil liberties of the state in case of an authoritative government. Furthermore, the framers of the Bill of Rights did not seek to undermine the national government’s influence and power to govern, maintain peace and “domestic tranquility,” and, if necessary, disarm the mob and suppress insurrections.5 While still acknowledging the ability of the national government to govern, the framers of the Second Amendment emphasized the importance of the right to bear arms in the state in case the government harshly interfered with its right to govern.

The Bill of Rights confirmed that the national government wouldn’t trample on the rights of the conscience, deny people due process of law, or impose cruel and unusual punishments on

1Amdt2.2 Historical Background of the Second Amendment, Cornell Law School Legal Information Substitute, https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment.

2Amdt2.2 Historical Background of the Second Amendment, Cornell Law School Legal Information Substitute, https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment.

3PA CONST. amend. XIII.

4The Second Amendment in Law and History 118, (Carl T. Bogus et al. eds., 2000).

5The Second Amendment in Law and History 118, (Carl T. Bogus et al. eds., 2000).

convicted criminals.6 Additionally, the Second Amendment reaffirmed the role of the national government to arm and organize state militias. Still, if Congress failed to do its job, the states were given the authority to maintain their own militias.7

This paper’s intellectual contributions consist of the constitutionality of the Assault Weapons Ban of 2022 due to historical traditions that account for the constitutionality of a ban on assault weapons. Ultimately, this paper also explores how a ban on military-style assault weapons, high-capacity magazines, and ammunition-feeding devices can significantly decrease gun murders and contribute to respecting and acknowledging the importance of public safety and civilian security. Additionally, due to the rise in gun violence and massacres in the United States due to the expiration of the 1994 Assault Weapons Ban, the safety and protection of the civilian population, government institutions, schools, etc., are fundamental for safekeeping individuals from the dangerous harm and threats that are associated and caused due to gun violence. As a result, restrictions and limitations using specific weapons in the United States can significantly decrease gun-related injuries and massacres due to an expansive interpretation of the Second Amendment that has contributed to the rise in gun violence, injuries, and death.

This paper also explores how the use of assault weapons and large-capacity magazines are weapons that the Second Amendment does not protect through an analysis on the historical context of gun laws and regulations in the United States regarding the use of specific guns and weapons. Assault weapons and large-capacity magazines are primarily used for the purpose of military defense, rather than for personal defense and recreational activities. Furthermore, a ban on assault weapons and LCM does not hinder or restrict an individual’s personal right for selfdefense. Usually, the purpose of using military-style weapons within the public sphere is a direct harm and threat to civilians and the public sphere due to the accessibility of purchasing such weapons.

B. Expansion of the Second Amendment

Although provisions in the Constitution provided Congress the ability and power to establish and support standing armies, the call for the ratification of the federal Constitution and the Bill of Rights was tenacious and urgent to defend the concept of liberty and prevent the federal government from receiving too much constitutional power. In the 18th century, many historians argue that the Framers originally intended the self-defense of armed-state militias to include ordinary citizens who could resist federal overreach. However, the interpretation of the Second Amendment has evolved and expanded over time to fit modern standards. Today, the Second Amendment protects an individual’s right to bear arms against criminals. Recent Supreme Court rulings, such as The District of Columbia v. Heller and McDonald v. City of Chicago, re-interpreted and expanded the definition and context of the Second Amendment and how it applies today. Due to stringent gun control laws, the District of

6The Second Amendment in Law and History 119, (Carl T. Bogus et al. eds., 2000).

7The Second Amendment in Law and History 119, (Carl T. Bogus et al. eds., 2000).

Columbia v. Heller case significantly protected an individual's right to bear arms and the unconstitutionality of disassembled or nonfunctional guns with a trigger lock mechanism. As a result, the expansive interpretation of the Second Amendment with the recent Supreme Court Columbia v. Heller ruling has significantly expanded an individual’s right to bear arms for selfdefense.

Moreover, in the United States v. Miller, the Supreme Court upheld a conviction under the National Firearms Act . . . for transporting a sawed-off shotgun in interstate commerce.8 The Court held that:

[in] the absence of any evidence tending to show that the possession of use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.9

The Second Amendment’s second clause highlights the importance of preserving the security of a “free state.” It emphasizes that it is only within the furtherance of state security that “the right of the people to keep and bear arms” is proclaimed….”10 As a result, the Second Amendment case on the right to bear arms is to further the state’s safety in the context of the lower federal courts. Following the case of Miller, the Supreme Court case is evident in guaranteeing a collective right to bear arms, rather than an individual right. Due to the Second Amendment guaranteeing a right to bear arms and “the right of the state to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.”11

Regarding the Supreme Court Ruling on McDonald v. The City of Chicago, the Court ruled that the Second Amendment applies equally to the federal, state, and local governments. Several suits were filed against Chicago and Oak Park in Illinois, challenging their gun bans after the Supreme Court’s opinion in District of Columbia v. Heller. The Court eventually ruled through the application of the Fourteenth Amendment that the Second Amendment right to bear arms for self-defense is constitutional and made applicable to the states. As a result, the application of the Second Amendment has been exceedingly made applicable to the states, which has expanded the constitutional right to bear arms for civilians for self-defense within state governments. However, it is essential to note that the Bill of Rights applies to the state and local governments, although the constitutional right to bear arms doesn’t automatically apply to state and local governments.

II. CURRENT LANDSCAPE

Although the Second Amendment provides a constitutional right to bear arms, it also results in massive gun-related injuries. According to statistical data from the Centers for Disease Control and Prevention, more Americans died due to gun-related injuries in 2020 than in any

8Gun Control and Gun Rights 178 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

9Gun Control and Gun Rights 178 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

10Gun Control and Gun Rights 179 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

11Gun Control and Gun Rights 179 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

previous year.12 In 2020, 45,222 people died due to gun-related injuries, which include gun murders, gun suicides, and law enforcement involvement, and those whose circumstances couldn’t be well-determined.13 Ultimately, the number of U.S. gun deaths has drastically changed over time, where gun deaths increased by 43% in 2020 compared to a decade prior. These statistics reveal the increasing surge of gun-related deaths and suicides due to a lack of stringent and necessary gun law restriction measures to protect people’s livelihoods.

The United States’ gun death rate is much higher than most other nations, whose gun death rate was “10.6 per 100,000” in 2016 compared to countries such as Canada, Australia, and many European nations, including France, Germany, and Spain.14 Mass shootings will only increase if the United States repeatedly refuses to acknowledge the harmful impact of loose gun law regulations and restrictions and the value and importance of stringent gun law restrictions to protect civilian well-being. The mass school shooting in Uvalde, Texas is a clear example of how a lack of gun control law regulations could result in cold-blooded mass shootings. The mass shooting was considered to be the deadliest mass shooting since the Connecticut Sandy Hook Elementary School shooting.15 It further reveals that gun violence in the United States is unchecked due to a lack of gun control legislation and restrictions to decrease the amount of mass shootings and gun-related deaths and fatalities.

The Monterey Park mass shooting in California heightened the discourse regarding the extent to which the Second Amendment should be protected and the necessity of gun control law measures. Eleven innocent people were murdered at the Star Ballroom Dance Studio by a man who used a semi-automatic weapon.16 Not only does this reveal the dangerous and threatening force of using semi-automatic weapons without certain limitations, but it also reveals the value and necessary incorporation of strict gun control regulations to limit the increased gun-related deaths in the United States. Due to a lack of stringent gun-control legislation concerning purchasing assault weapons and large capacity ammunition magazines failed to protect civilians from gun violence.

The Assault Weapons Ban of 2022 is constitutional through a historical account of the Second Amendment and argues that state and local assault weapons bans do not violate an individual’s constitutional right to keep and bear semi-automatic assault-style weapons and large-capacity ammunition-feeding devices. Through historical tradition, it is evident that some significant restrictions and laws were passed that prevented the use of certain weapons that were

12Scott R. Kegler, Thomas R. Simon, et al. eds., Vital Signs: Changes in Firearm Homicide and Suicide RatesUnited States, 2019-2020 (May 13, 2022)

https://www.cdc.gov/mmwr/volumes/71/wr/mm7119e1.htm?s_cid=mm7119e1_w

13John Gramlich, What the data says about gun deaths in the U.S., Pew research center (February 3, 2022),

https://www.pewresearch.org/fact-tank/2022/02/03/what-the-data-says-about-gun-deaths-in-the-u-s/.

14Scott R. Kegler, Thomas R. Simon, et al. eds., Vital Signs: Changes in Firearm Homicide and Suicide RatesUnited States, 2019-2020 (May 13, 2022)

https://www.cdc.gov/mmwr/volumes/71/wr/mm7119e1.htm?s_cid=mm7119e1_w

15The New York Times, What to Know About the School Shooting in Uvalde, Texas, The New York Times (August 25, 2022), https://www.nytimes.com/article/uvalde-texas-school-shooting.html

16Victoria Kim, All of the victims of the Monterey Park shooting have now been identified, The New York Times, (January 25, 2023), https://www.nytimes.com/2023/01/23/briefing/california-shooting-monterey-park.html

deemed as a potential threat to the safety and livelihood of public safety and individual security. During the framers’ era, it is essential to note that a significant portion of the population did not have access to owning guns until the drafting of the 14th Amendment that made the Second Amendment applicable to state and local laws and, evidently, the abolishment of the militia. Due to historical gun control measures and restrictions in the past, it serves as scholarly evidence that the scope of the Second Amendment is not an absolute right for civilians and emphasizes that particular limitations and restrictions are enforced and implemented within the size of the Second Amendment. For instance, there are necessary background checks, registration periods, and waiting periods that are implemented in individuals purchasing and owning guns in the United States. Additionally, there are local and state assault weapons bans that prohibit the lawful possession of certain weapons that are deemed as a threat to the public sphere and the civilian population due to their dangerous mechanisms and structure.

III. SCHOLARLY COMMENTARY

While the current state of gun control laws demonstrates a need for stricter regulations, many contemporary scholarly insights show various perspectives regarding the scope of the Second Amendment. One central argument in the Second Amendment is the Standard model, founded in the Second amendment’s text and the historical underpinnings. The Standard model focuses on supporting an individual’s right to bear arms, supported by the English Bill of Rights of 1689, to allow individuals to defend themselves against outlaws and the presence of an armed populace to check on government tyranny and the power of the standing army. Ultimately, the main argument for an individual’s right to bear arms under a standard model is to protect families and individuals and to ensure a body of armed citizenry from which a militia could protect citizens from an oppressive government. Glenn Harlan Reynolds emphasizes that “under the Standard Model approach, it is fair to say that the Framers divided power yet another way, by ensuring that the citizenry possessed sufficient military power to offset that of the Federal government.”17

The Standard Model approach emphasizes the necessity of a division of power between the federal and the state government to ensure that the federal government wouldn't abuse sufficient military force that would hinder the citizens' constitutional right to bear arms. However, Reynolds also argues that “assault rifles” would be protected under the common law, while acknowledging that not everyone is guaranteed a right to keep and bear arms. Reynolds argues that the Second Amendment protects individuals' right to keep and bear arms to defend against foreign invaders and the federal government. He also believes that the right could be extended to include powerful military weapons, including large-capacity magazines. Although Reynold’s argument holds validity in that the Standard Model has created a separation of powers between the state and federal government to prevent an abuse of power from the federal government to the states, his position that assault rifles are protected under the

17Gun Control and Gun Rights 192 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

common law is debatable. Suppose the purpose of safeguarding assault rifles is to protect an individual's right to bear arms for self-defense. In that case, assault rifles are a broad category to be considered to protect an individual's right to bear arms. The Second Amendment grants the right for citizens to defend themselves for the common defense. Therefore, it doesn’t expressly guarantee a citizen’s right to carry and possess any firearm within the public sphere freely.18

Another interesting critique is Stephen Halbrook’s argument for an insurrectionist theory of the Second Amendment regarding that citizens ensure that they are armed and ready to defend themselves against their government if it becomes tyrannical. Halbrook strongly argues that the original intention of the Framers is the desire for a “force of the whole armed populace…to counter inroads on freedom by government,” and “to guarantee the right of the people to have their ‘private arms’ to prevent tyranny and to overcome an abusive standing army or select militia.”19 By allowing the right of the people to gather together and have the right to bear arms to prevent government tyranny, Halbrook supports the Second Amendment right to guarantee citizens the right to gain self-defense towards potential harm.

Another scholarly contribution is Laurence H. Tribe, a well-known constitutional scholar on the Second Amendment, who argues that the Second Amendment grants individuals a constitutional right and argues that there is no such thing as an absolute right. He further argues that gun control measures that “seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regular ownership by means of waiting periods, registration, mandatory safety devices, or the like…are plainly constitutional”.20 Ultimately, his argument is significant because it further adds to the scholarly commentary that the Second amendment rights regarding an individual’s right to keep and bear arms aren’t absolute, and that certain restrictions and limitations need to be enforced to protect an individual’s security and safety from any potential threats and harm in the public sphere. An absolute constitutional right to keep and bear arms must have certain limitations to protect the public sphere and ensure that an individual’s right to keep and bear arms is not infringed upon through immense restrictions and limitations.

Overall, Reynold’s Standard Model, Halbrook’s insurrectionist theory, and Tribe’s argument about the importance of limitations within the Second Amendment are valid arguments concerning the individual’s constitutional right to the Second Amendment in our contemporary society. Reynold argues that the scope of the Second Amendment extends to the constitutionality of using assault weapons as a right to gain self-defense against governmental abuse. Furthermore, Halbrook’s argument supports the constitutionality of the right to private arms within the public sphere to prevent government tyranny and potential harm. On the other hand, Tribe argues that an individual’s constitutional right to the Second Amendment contains limitations and supports gun control measures that limit the scope of the Second Amendment. The size of the Second Amendment is heavily debatable within our contemporary society, but it

18Gun Control, Gale (2022), https://www.gale.com/open-access/gun-control

19Gun Control and Gun Rights 192 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

20The Second Amendment in Law and History 9 (Carl T. Bogus et al. eds., 2000).

is all incredibly significant in scholarly perspectives within the sphere of the Second Amendment.

IV. ARGUMENT

In James Madison’s original draft of the Second amendment, he states, “a well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”21 In the original draft of the Second Amendment, the draft language suggests that the framers saw the Second Amendment as a right to the militia, and any right to own weapons was a collective right, derived from the right of each state to maintain a “well regulated militia.”22 As a result, an individual’s right to bear arms isn’t specified historically in the early manuscripts of the Second Amendment. Paul Finnegan argues that “the right to bear arms was a term connected solely to the militia and the military” rather than the individuals’ right to bear arms.23 Therefore, at the time of the drafting of the Second amendment, the right to keep and bear arms was directly connected to the military and individuals serving within it, rather than individual civilians who had the right to keep and bear arms in the public domain and the urban setting.

Given the historical context of the early origins of the Second Amendment, the right to bear arms was a right given solely to the militia rather than to the general public and citizenry. As a result, the constitutional right to bear arms under the Second Amendment for “advocates of a local control of the militia showed an equal or a secondary concern for gun ownership as a personal right.”24 When the 2nd Amendment was drafted, it did not foresee the use of firearms in an urban setting. Still, it was intended to prevent tyranny from the newly created federal government by allowing the right to a well-regulated militia. As gun violence continues in the U.S., we must include regulations to safeguard all Americans. We tolerate a culture of violence when we insist on an expansive interpretation of the 2nd Amendment.

A 2020 study explores how restrictions in the use of assault weapons and high-capacity semi-automatic weapons can drastically reduce gun-related deaths and injuries due to mass shootings.25 In addition, it also explores how the expiration of the 1994 Assault Weapons ban contributed to a rise in crimes with high-capacity semiautomatic weapons that have increased victim counts in mass shootings. Although the study effectively outlines the data regarding

21The Second Amendment in Law and History 139, (Carl T. Bogus et al. eds., 2000).

22Amdt2.2 Historical Background of the Second Amendment, Cornell Law School Legal Information Substitute, https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment

23Paul Finkelman, The Second Amendment in Law and History 140 (Carl T. Bogus et al. eds., 2000).

24Paul Finkelman, The Second Amendment in Law and History 140 (Carl T. Bogus et al. eds., 2000).

25Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 147 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

restrictions on assault weapons and high-capacity magazine weapons, it also acknowledges the loopholes regarding the 1994 Assault Weapons ban under the Clinton Administration.

According to the study, “average fatalities are 38% to 85% higher when large capacity magazines (LCM) are used, with most estimated in the range of 60% to 67%.”26 The data suggest that the use of large capacity magazines is atrociously dangerous to the general public and the livelihood of the citizen population. As a result, President Biden’s initiative for a 2022 Assault Weapons Ban is necessary to help reduce gun violence in the United States and gun-related deaths and injuries. Additionally, the total number of victims killed and wounded are two to three times higher when large capacity magazines are used in all sources with information on wounded victims.27 Not only that, but a restriction of large capacity magazines could reduce fatalities by 11% to 15% across firearm mass murder incidents and reduce total injuries by 24% to 26%.28 Restricting the use of large-capacity magazines could drastically decrease the fatalities due to firearm mass murder incidents and support the overall common good of the citizen population by reducing mass gun deaths and violence.

Regarding the effects of assault weapons and large-capacity magazine restriction on mass shootings, Koper’s findings include that large capacity magazine firearms are used “in between 20% and 58% of all firearm mass murders, and they are used in a particularly high share of public mass shootings”.29 Since large capacity magazine firearms are largely perpetuated in mass shootings, it can lead to substantially more fatalities and injuries than any other firearm weaponry. Although the Assault Weapon Ban of 1994 had significant loopholes and exemptions in its nature and impact, its early expiration in 2004 contributed to an increase in mass shootings with high-capacity semiautomatic weapons, which has increased the amount of gun incidents, injuries, and fatalities.30 The data shows that gun restrictions on high capacity magazines and assault weapons can create a significant impact in regards to gun safety. As a result, the data reveals how critical and essential a ban on assault weapons and large-capacity magazines are

26Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 152 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

27Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 152 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

28Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 153 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

29Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 162 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

30Christopher S. Koper, Accessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, 19 Criminology and Public Policy, 147, 162 (2020) (accessing potential to reduce deaths and injuries from mass shootings through AW and LCM restrictions).

necessary to reduce the scope of mass shootings and gun-related deaths and injuries due to an expansive interpretation of the Second Amendment.

Another study called, “The Effect of Large-Capacity Magazine Bans on High-Fatality Mass Shootings, 1990-2017” evaluates the effect of large-capacity magazine bans on the frequency and lethality of high-fatality mass shootings in the United States.31 The study shows that attacks involving large-capacity magazine weapons resulted in a 62% higher mean average death toll.32 As a result, the study reveals that restrictions on the use of large-capacity magazines can significantly reduce gun-related deaths and injuries in high-fatality mass shootings. Similarly, Kosper’s study, this study also revealed that the rate of high-fatality mass shootings increased after the expiration of the federal assault weapons ban. In 10 years, when the assault weapons ban was in effect, there were 12 high-fatality mass shootings and 89 deaths.33

However, after the ban’s expiration, there has been a drastic increase in the number of mass shootings, resulting in 48 high fatality mass shootings and 527 deaths.34 In fact, the data suggests that at a minimum, 64% of high-fatality mass shootings perpetrated between 1990 and 2017 involved the use of large-capacity magazines.35 Interestingly, the study also indicates that states that chose not to ban large capacity magazines were likelier to experience LCM-related mass shootings than states that decided to ban assault weapons. Overall, the study displays the necessity for restrictions on assault weapons to significantly reduce the amount of high-fatality mass shootings to improve the safety and livelihood of the citizen population and decrease gunrelated injuries and fatalities due to a lack of gun restriction on assault weapons. Although the 1994 Assault Weapons ban consisted of many loopholes and imperfections within its legislation, the data proves that restrictions on assault weapons, large capacity magazines, and semiautomatic weapons had significantly decreased when the law was in effect.

Overall, the study further proves the necessity for restrictions on semiautomatic weapons and large-capacity magazines to reduce the number of gun-related deaths, injuries, and fatalities in the United States due to an expansive interpretation of the Second Amendment that increases the risk for mass shootings and gun-related fatalities due to a lack of necessary restrictions in an individual’s right to keep and bear arms.

31Louis Klarevas, Andrew Conner, David Hemenway, The Effect of Large-Capacity Magazine Ban on High-Fatality Mass Shootings, 1990-2017, A Publication of The American Public Health Association (2019) (discusses effect of LCM Ban on high-fatality mass shootings).

32Louis Klarevas, Andrew Conner, David Hemenway, The Effect of Large-Capacity Magazine Ban on High-Fatality Mass Shootings, 1990-2017, A Publication of The American Public Health Association (2019) (discusses effect of LCM Ban on high-fatality mass shootings).

33Louis Klarevas, Andrew Conner, David Hemenway, The Effect of Large-Capacity Magazine Ban on High-Fatality Mass Shootings, 1990-2017, A Publication of The American Public Health Association (2019) (discusses effect of LCM Ban on high-fatality mass shootings).

34Louis Klarevas, Andrew Conner, David Hemenway, The Effect of Large-Capacity Magazine Ban on High-Fatality Mass Shootings, 1990-2017, A Publication of The American Public Health Association (2019) (discusses effect of LCM Ban on high-fatality mass shootings).

35Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 227 (Daniel W. Webster and Jon S. Vernick, 2013).

Concerning the history of gun law regulations in the United States, portions of the population were barred from owning guns, including law-abiding citizens who were resistant to pledge allegiance to the Revolution and enslaved people and free blacks.36 Also, during the Framer’s time, some laws required the safe storage of firearms and gunpowders.37 The gun law restrictions are evident in post-Civil war America, thus revealing that the scope of the Second Amendment was limited to a certain demographic and that there were laws that made it inaccessible to attain certain guns.

After the Civil War, Congress abolished the militia in most southern states because armed groups had proven “dangerous to the public peace and to the security of Union citizens in those states.”38 In the early twentieth century, Congress, in the National Firearms Act of 1934, heavily restricted access to machine guns and sawed-off shotguns.”39 The National Firearms Act of 1934 was enacted to impose a tax on the making and transfer of firearms. It included an occupational tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms.40 Additionally, many states passed laws that restricted the public possession of firearms, imposed waiting periods on the purchase of certain firearms, and barred violent felons from possessing guns.41

However, it is essential to note that the scope of the second Amendment isn’t determined solely on the regulations that were enacted when the Amendment was adopted.42 The history of innovations in firearms regulations since the framing has led courts to conclude that legislatures are not limited to framing-era regulations.43 This is significant to understand because there needs to be more information in the text of the historical context of the Second Amendment that states that gun laws and regulations by the government are limited to the rules made during the framing era. For example, the ban on possession by felons and the mentally ill reflects a tradition of restricting access to firearms by people deemed dangerous to public safety, including people convicted of domestic abuse and violence.44 In District of Columbia v. Heller, the Court wrote that the Second Amendment’s preamble is consulted to clarify the meaning of the second

36Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

37Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

38Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 227-228 (Daniel W. Webster and Jon S. Vernick, 2013).

39Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

40National Firearms Act (April 7, 2020), Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/rules-and-regulations/national-firearmsact#:~:text=The%20NFA%20was%20originally%20enacted,and%20dealing%20in%20NFA%20firearms

41Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

42Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

43Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

44Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

Amendment, adding that “well-regulated” meant the “imposition of proper training and discipline.”45 Therefore, the Second Amendment focuses on a body of citizens that is subject to regulations that are warranted to impose proper discipline on those qualified to keep and bear arms.46 An individual's constitutional right to keep and bear arms and their interest to support the constitutionality of the Second Amendment through an expansive interpretation contains consequences.

Regarding the constitutionality of assault weapons, the Court made it evident in Heller, that the use of firearms may not be considered “Arms” under the meaning of the Second Amendment.47 The Court clearly preserves access to firearms that are in “common use” and are not “dangerous or unusual.”48 Therefore, the protected "Arms" aren't used for military purposes or employed in a military capacity.49 This also includes arms that are possessed by law-abiding citizens for lawful purposes for self-defense within the home. Gun regulations on assault weapons are fairly consistent during the framer’s-era and historic traditions because “dangerous and unusual weapons” have been subject to heavy restriction.”50 Although weapons such as assault rifles can be used “in common defense,” they are primarily used for recreational activities and for hunting. Additionally, due to their size and ability to propel bullets at an instant force, assault weapons are an endangerment to family members, relatives, and to society at large.

As a result, there must be tighter restrictions on the use of assault weapons within the public sphere to prevent gun-related injuries and fatalities due to their dangerous size and mechanisms. Additionally, the U.S. Court of Appeals for the District of Columbia Circuit recently held that a ban on assault weapons was constitutional.51 The court ruled that while assault rifles may be in “common use”, a prohibition on firearms does not effectively disarm individuals or substantially affect their ability to defend themselves.”52 As a result, an assault weapons ban would be constitutional because assault weapons are dangerous and unusual weapons that are tremendously harmful and detrimental to the safety and livelihood of civilians in society. Considering the historical tradition of the Second Amendment, there were also limitations on the use of “dangerous and unusual” equipment that was considered to be an immense threat to the security of the civilian population. The enforcement of the Assault

45Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013).

46Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 228 (Daniel W. Webster and Jon S. Vernick, 2013)

47Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 232 (Daniel W. Webster and Jon S. Vernick, 2013).

48Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 232 (Daniel W. Webster and Jon S. Vernick, 2013).

49Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 232 (Daniel W. Webster and Jon S. Vernick, 2013).

50Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 232 (Daniel W. Webster and Jon S. Vernick, 2013).

51Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 233 (Daniel W. Webster and Jon S. Vernick, 2013)

52Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 233 (Daniel W. Webster and Jon S. Vernick, 2013).

Weapons Ban of 2022 would significantly reduce the number of mass shootings and gun-related fatalities and injuries due to allowing dangerous weapons in the public sphere of our society.

Specifically, in the United States v. Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce.53 The Court concluded that the right to keep and bear arms are meant solely to protect the right of the states to keep and maintain an armed militia based on the history and text of the amendment.54 Therefore, the United States v. Miller case ruling is significant because it rules that the use of sawed-off shotguns in interstate commerce is unconstitutional and enforces that the use of certain weapons can be a dangerous threat to the civilian population and isn’t always immediately granted under the constitution.

The Court held that: “[in] the absence of any evidence tending to show that the possession or use of “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”55

Thus, the United States v. Miller case is a prime example of how the Supreme Court rules that there are certain weapons that the Second Amendment doesn't protect, but rather the Second Amendment protects the overall goal to preserve the security of "a free state."56 According to a Gallup survey in 2019, the top reasons why gun owners say that they own a firearm is due to personal protection.57 However, when there is a broad emphasis on an individual’s right to keep and bear arms due to an expansive scope of the Second amendment, it is a direct threat and detriment to the security of a free state when individuals have the right to carry and utilize assault weapons and large capacity semi-automatic ammunition magazines. The District of Columbia Circuit upheld the ban on assault weapons and prohibition on magazines that carry more than ten ammunition rounds.58 Although large-capacity magazines may be in everyday use, it is important to note that banning them doesn’t significantly burden an indivduals’ right to selfdefense.59 After all, large-capacity magazines are used for military objectives rather than civilian use. As a result, an individual's defense isn't exactly threatened when there are restrictions to utilize specific weaponry, such as large-capacity magazines and assault weapons, because they are predominately used for recreational and military use rather than self-defense.

53Gun Control and Gun Rights 178 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

54Gun Control and Gun Rights 178 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

55Gun Control and Gun Rights 178 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

56Gun Control and Gun Rights 179 (Andrew J. McClurg, David B. Koppel, and Brannon P. Denning, 2002).

57Katherine Schaeffer, Key Facts About Americans and Guns, Pew Research Center (September 13, 2021) https://www.pewresearch.org/fact-tank/2021/09/13/key-facts-about-americans-and-guns/

58Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 233 (Daniel W. Webster and Jon S. Vernick, 2013).

59Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 233 (Daniel W. Webster and Jon S. Vernick, 2013).

The court rules that high-capacity magazines may be unusually dangerous when used in self-defense because so many rounds can be fired unnecessarily.60 As a result, the hazardous capacity of high-capacity magazines is a grave concern to the safety and livelihood of the civilian population when they are openly carried and utilized in the public sphere. Therefore, restricting the use of ammunition magazines is fundamental for the government’s interest in public safety. Since assault weapons are used in 20%-67% of fatal mass shootings, it is crucial to implement an extensive and effective ban on using large capacity magazines and assault weapons to support and protect public safety and the livelihood of civilians due to an expansive interpretation of the Second amendment. Overall, a study of fatal mass shootings in the United States during 2014-2017 determined that 46% of the shootings were committed by someone prohibited or likely prohibited from possessing a firearm.61 As a result, there needs to be certain limitations that are essential to be enforced to protect the public domain and civilians within it to prevent criminals and those who are not well-equipped to carry dangerous and unusual weapons for the purpose of self-defense but rather for the intent to cause immense harm and damage to individuals. Additionally, when restrictions were made on assault weapons and large capacity magazines, a study revealed that handgun purchaser licensing laws that require in-person application with law enforcement or fingerprints were associated with incidents of fatal mass shootings 56% lower than that of other states.62 Therefore, a prohibition on the use of large capacity magazines and assault weapons is critical and essential to protect public safety and civilian lives from potential threats and harm.

Large capacity magazines are used roughly twice as frequently as firearms identified as assault weapons. In a study of mass shootings with four or more victim fatalities during 20092016, 19% involved firearms with an LCM and 10% detailed firearms models classified as assault weapons.63 Therefore, it is crucial to place more stringent restrictions on large capacity magazines and assault weapons due to their capacity to fire multiple rounds, which can significantly affect the safety of civilians. Not only that, but the use of assault weapons and large capacity magazines also contributes to an increase in the level of gunfire and injury per gun attack, contributing to mass murder of civilians due to the accessibility of purchasing a large capacity semiautomatic rifle and assault weapon in the United States. The average number of fatalities are 38%to 85% higher when large capacity magazines are used, with most estimated in

60Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 233 (Daniel W. Webster and Jon S. Vernick, 2013).

61Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 172 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

62Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 172 (2020) (parenthetical with context).

63Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

the range of 60% to 67%.64 Therefore, the amount of victims that are killed and wounded due to the senseless use of large capacity magazines are incredibly high and “two to three times higher when LCMs are used in all sources with information on wounded victims.65 As a result, it is crucial to decrease the number of gun-related deaths and fatalities due to the easy accessibility and use of large capacity magazines and assault weapons. When LCM restrictions are implemented, it could “potentially reduce fatalities by 11% to 15% across all firearm mass murder incidents and reduce total injuries by 24% to 26%.66 However, these estimates are based on comparisons of victim differentials in LCM and nonLCM attacks that produced enough casualties to qualify as mass shootings. Ultimately, these attacks were perpetrated by offenders with a clear intent to shoot a large number of people, and they may provide the best estimates of LCM impacts under such conditions.67 On the other hand, the impacts of LCM restrictions could be lower than these estimates even if there are large reductions in LCM availability. This could be due to shooters with LCM weapons who would have likely inflicted and planned to kill and wound high numbers of victims and inflicted higher than average casualty counts even if they used non-LCM firearms.68 Nevertheless, the easy access to LCM weapons directly threatens public safety and to the civilian population when there aren’t any stringent restrictions enforced on the accessibility of LCM firearms. Therefore, it is crucial to be aware of the repercussions of using dangerous weapons, such as LCM and assault weapons, due to their capacity to shoot many rounds at once and immediately cause damage and injury to civilians.

64Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 172 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

65Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 172 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

66Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 172 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

67Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171, 173 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

68Daniel W. Webster, Alexander D. McCourt, Cassandra K. Crifasi, Marisa D. Booty, Elizabeth A. Stuart, Evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shooting in the United States, 19 Criminology and Public Policy 171 173 (2020) (discussing regulation of firearms design, sale, and carrying on United States final mass shootings).

The Assault Weapons Ban of 2022 is constitutional through a historical account of the Second Amendment and argues that state and local assault weapons bans do not violate an individual’s constitutional right to keep and bear semiautomatic assault-style weapons and largecapacity ammunition-feeding devices. Through historical tradition, it is evident that there were major restrictions and laws that were passed that prevented the use of certain weapons deemed as a potential threat to the safety and livelihood of public safety and individual security. During the framers’ era, it is important to note that a significant portion of the population did not have access to owning guns until the drafting of the 14th Amendment that made the Second Amendment applicable to state and local laws and, evidently, the abolishment of the militia. Historical gun control measures and restrictions serve as scholarly evidence that the scope of the Second Amendment is not an absolute right for civilians and emphasizes that particular limitations and regulations are implemented within the scope of the Second Amendment. For instance, there are necessary background checks, registration periods, and waiting periods that are implemented in individuals purchasing and owning guns in the United States. Additionally, there are local and state assault weapons bans that prohibit the lawful possession of certain weapons deemed as a threat to the public sphere and to the civilian population due to their dangerous mechanisms and structure.

Assault weapons and large capacity ammunition devices and weaponry are considered a dangerous threat to the American citizenry, and there should be strict and necessary restrictions on the use of these weapons because they are primarily used for military purposes with the intent of causing mass damage and injury. As a result, it is necessary to ban such dangerous weapons to protect the American citizenry and to maintain the security and protection of civilians within highly-populated areas and environments. Gun law regulations are necessary in the security and livelihood of individuals in the United States.

The enforcement of the Assault Weapons Ban of 2022 is essential to reduce the amount of mass gun shootings and gun-related injuries and deaths due to an expansive interpretation of the Second Amendment that is protective of civilians' rights. Rather than considering the collective safety of the American public and citizenry, it is important to protect the livelihood and safety of the American public for the benefit of the common good and to safeguard the livelihood of American citizens. Therefore, it is essential to protect the common good of the interests of the broader community and individuals within it rather than an individual’s need to protect their self-interests.

However, although the Assault Weapons Ban of 2022 is a significant solution to decrease the amount of gun violence and deaths in the United States, significant loopholes will need to be considered. For instance, the United States’ experience with the federal assault weapons ban of 1994 contained significant loopholes including the grandfathering of guns manufactured before

September 13, 1994.69 This was considered a substantial issue since 1 million assault weapons were privately owned in the United States as of 1990, and 500,000 were produced.70 As a result, the Assault Weapons ban was ineffective in creating legal substitutes for banned guns since manufacturers would make minor changes in the firearm features to continue the production of certain weapons even though the ban was in effect.71 The ban continued the use of grandfather guns before the 1994 Assault Weapons Ban. Due to certain loopholes within the legislation framework, it was ineffective in reducing mass shootings when the ban was in effect. For example, 17 mass shootings took place in the U.S. during the ban, which resulted in 100 dead individuals and 138 injured.72 However, after the expiration of the 1994 Assault Weapon ban, mass shootings and lethality have increased in the U.S, resulting in 974 injuries and 651 deaths since 2005.73 Therefore, when comparing the data during the effect of the Assault Weapons Ban from 1994-2004 and after its expiration, it is apparent that the ban was effective in its goal to prevent gun violence and lethalities.

VI. FUTURE ACTION

Based on the historical context of the right to bear arms, there is historical evidence that gun law regulations and legislation restrict the use of certain weapons. As a result, there is a robust understanding that the right to bear arms is a constitutional right heavily influenced by Framer's interpretation of the right to bear arms. Not only that, but the Second Amendment plays a significant role in expanding the understanding of the Amendment over time to fit the social context of a particular era. However, the Second Amendment right to bear arms isn't an absolute right available to every citizen of the United States. Therefore, the right to bear arms is a fundamental right to an individual’s right to personal self-defense for the protection of their safety against potential harm and threats. However, it is essential to note that an individual’s right to bear arms in self-defense can be detrimental to the security of the American people. Therefore, it is necessary to understand that the implementation and enforcement of the Assault Weapons Ban of 2022 are essential to protect and safeguard the lives of the American citizenry and to protect the livelihood and safety of people within the public sphere.

Ultimately, the purpose of the Assault Weapons Ban of 2022 is significant legislation that will drastically decrease the easy accessibility of attaining dangerous and unusual weaponry,

69Nathan Brown, The ineffectiveness of the 1994 Assault Weapons Ban, 17 Citations Journal of Undergrad. Research, 28, 28 (2020) (discusses ineffectiveness of 1994 Assault Weapons Ban).

70Nathan Brown, The ineffectiveness of the 1994 Assault Weapons Ban, 17 Citations Journal of Undergrad. Research, 28, 28 (2020) (discusses ineffectiveness of 1994 Assault Weapons Ban).

71Nathan Brown, The ineffectiveness of the 1994 Assault Weapons Ban, 17 Citations Journal of Undergrad. Research, 28, 28 (2020) (discusses ineffectiveness of 1994 Assault Weapons Ban).

72Nathan Brown, The ineffectiveness of the 1994 Assault Weapons Ban, 17 Citations Journal of Undergrad. Research, 28, 29 (2020) (discusses ineffectiveness of 1994 Assault Weapons Ban).

73Nathan Brown, The ineffectiveness of the 1994 Assault Weapons Ban, 17 Citations Journal of Undergrad. Research, 28, 29 (2020) (discusses ineffectiveness of 1994 Assault Weapons Ban).

specifically military-utilized weapons, to reduce mass shootings and massacres in the United States. As a result, it is essential to understand that the constitutional right to bear arms is not an absolute right that the Constitution guarantees. Instead, the right to keep and bear arms contain limitations, responsibilities, and restrictions concerning the use of certain weapons to protect the safety and livelihood of the American citizenry.

VII. CONCLUSION

The easy accessibility of assault weapons and large capacity ammunition devices and magazines is a dangerous threat to the public sphere and American citizens’ livelihood due to their dangerous nature and mechanisms. The Assault Weapons Ban of 2022 is crucial to ban the use of military-style weapons that are not appropriate to use within the public sphere and to protect the livelihood and safety of the American citizenry. The United States v. Miller's case proves that the Supreme Court did not imply an individual’s right to bear and possess firearms. Instead, the case ruling highlights how the right to bear arms isn’t fully absolute under the Constitution of the United States. Although the right to bear arms is fundamental to an individual's constitutional right, the right to bear arms must contain fundamental rights that should be protected, along with specific and practical limitations and restrictions that will benefit the common good of society and the individual.

The Assault Weapons Ban of 2022 is essential to protect the safety and livelihood of citizens within the public sphere and to prevent dangerous and unusual weaponry from endangering the security of civilians. Ultimately, the use of assault weapons and large-capacity ammunition devices isn’t constitutional through the historical account of the Second Amendment for civilians. As demonstrated by the historical tradition, gun laws, and legislation since the Framer's era, military-style weapons within the public sphere aren’t protected but are deemed a dangerous threat to civilian lives and the collective well-being of the American citizenry.

Cruel and Unusual Prisons: A History of American Penology and the Use of the Eighth Amendment as a Gateway for Prison Reform Aashika Ingersal

Edited by Aliyah E. Ramirez

The United States has one of the most punitive prison systems among all Western nations, resulting in alarmingly high recidivism rates. According to the National Institute of Justice, nearly 44% of released criminals return within just one year out of prison. A study of the history of American prisons reveals that the current system has seen very little change since it was first established exactly two centuries ago. However, recent years have seen the birth of prison reform movements that aim to combat recidivism by encouraging the more rehabilitative treatment of incarcerated individuals in the United States. Examining the evolution of American courts’ interpretation of the Eighth Amendment reveals that the “Cruel and Unusual Punishment” Clause has come to be a reflection of the general public’s everchanging attitude toward what can be considered “acceptable” punishment. When combined with efforts that sway public opinion in favor of a more rehabilitative prison system, the flexibility of the “Cruel and Unusual Punishment” Clause, as established by various cases involving the inhumane treatment of incarcerated individuals in prisons, is a powerful tool that can substantially progress the prison reform movement through case law rather than legislation.

The United States always keeps around two million prisoners behind bars, which is the highest incarceration rate in the world1. In 2015, Hillary Clinton highlighted the staggering enormity of the American prison population by sharing how, despite making up only around five percent of the world’s population, the United States contains almost a quarter of the world’s prisoners2. Mass incarceration in America is only furthered by the fact that about 44% of incarcerated individuals return to prison within a year of being released3, compared to the average 20% in Norway, a nation known for having the most progressive and successful prisons in the world4. In recent years, there has been increasing dissatisfaction among the general public regarding the modern-day prison system found throughout America5. That being said, the penological system currently used in the United States has remained relatively unchanged since its establishment in the mid-to-late 19th century6. The current American prison system is characterized by its use of incarceration and the harsh treatment of prisoners to punish and discourage criminal behavior7. This form of punishment contrasts with the preventative measures and the more rehabilitation-focused approach found in most developed countries that boast substantially lower incarceration and recidivism rates than the United States8 .

After exploring the historical roots and ideologies that form the basis of the American penological system, this paper will outline the problems that the modern form of incarceration creates in the United States. Then, it will consider public attitudes towards the current system and the growing calls to reform what is increasingly being seen as a broken and cruel method of punishment. A following study of the evolution of the 8th Amendment’s “cruel and unusual punishment” clause throughout American history will reveal how the 8th Amendment can, and has, been used to progress prison reform in the United States.

II. A HISTORY OF AMERICAN PRISONS

The Enlightenment was a period characterized by the rapid and radical development of intellectual thinking in Europe and the Americas9. Also called the “Age of Reason,” this period

1 World Population Review, Incarceration Rates by Country 2023 (2023).

2 Roy Walmsley, Institute for Crim. Pol’y Rsch, World Prison Population List 5 (11th ed. 2015).

3 World Population Review, Recidivism Rates by State 2023 (2023).

4 Carolyn W. Deady, Pell Ctr. for Int’l Rel. and Pub. Pol’y, Incarceration and Recidivism: Lessons from Abroad 3 (2014).

5 Peter D. Hart Research Associates, Inc., Changing Public Attitudes toward the Criminal Justice System, Open Soc’y Institute 1, 7-8 (2002).

6 Leonard H. Roberts, The Historic Roots of American Prison Reform: A Story of Progress and Failure, 36 J. of Corr. Educ. 106, 106-109 (1985).

7 Katie R. Quandt & Alexi Jones, Prison Pol’y Initiative, Research Roundup: Incarceration can Cause Lasting Damage to Mental Health (2021).

8 Cyrus Ahalt, et al, Role of a US–Norway Exchange in Placing Health and Well-Being at the Center of US Prison Reform, 110 Amer. J. of Pub. Health S27, S27 (2020).

9 Rafey Habib, Rutgers, Introduction to Enlightenment (2013).

began in the late 17th century, and marked the birth of a rationalist perspective that used logical reasoning and scientific thinking to explain the world. The Enlightenment transformed Western thinking in nearly every field, from philosophy and religion to literature and politics. During the height of this period of intellectual change, English philosopher Jeremy Bentham introduced a radical new theory called utilitarianism, which judged the morality of any and all actions by the amount of good the said action would cause. In other words, the only moral, and thus “right”, decision that could be made, was the one that would do the most good for the most people.

Prior to the introduction of utilitarianism, American penological thinking drew heavily from the English criminal codes, which relied mostly on harsh, corporate, and often public punishment to deter and penalize criminal behavior. Typically, the self-policing colonists turned to the whipping post, branding or maiming, the stocks, and other similar forms of punishment to inflict pain and humiliate criminals. The close-knit structure and relatively small population of American colonial towns leading up to the 1700s allowed such public corporal punishments to be fairly effective methods of keeping crime in check. However, as colonial populations boomed in the 18th century, the English methods of punishment became increasingly inadequate at controlling crime. When combined with the growing animosity between the Colonists and the English Parliament leading up to the American Revolution, the failure of the English criminal codes and the introduction of utilitarian thinking forced Colonists to reconsider the effectiveness and morality of the penological system that had been enforced since the English had first set foot in the New World.

In the 1700s, leading rationalist thinkers began condemning corporal punishment, encouraging incarceration in its place. Perhaps the most notable and influential criminologist who shaped early American thinking of punishment and crime was Italian philosopher, Cesare Beccaria. Furthering Lockean social contract theories that the role of the government is to protect the liberties of its citizens and act for the common good,10 Beccaria argued that “the role of the law is to protect society and to rationally regulate the interactions between its members.11” As part of the Classical School of Penology, Beccaria considered the excessively harsh and inconsistent English criminal codes to be the true source of crime12. This new perspective of crime became increasingly popular in the United States. In 1793, William Bradford’s essay, An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania, With Notes and Illustrations, continued American criticism of contemporary views on criminal law and promoted calls to change the penological system that was in place13 American desire for reform resulted in tangible change for the first time in 1789, when the Philadelphia Society for Alleviating the Miseries of Public Prisons created the Pennsylvania Prison System with the construction of the Walnut Street Jail14. This radical new method of

10 Sawyer A. Theriault, John Locke and the Second Treatise on Government, 1 Inquiries J. (2009).

11 Matthew W. Meskell, An American Resolution: The History of Prisons in the United States from 1777 to 1877, 51 Stan. L. Rev. 839, 843 (1999).

12 Id. at 844

13 Id.

14 Id. at 846

punishment relied on Quaker ideas of the “essential goodness of human nature.15” Quakers believed that each person had a pure, good Inner Light, and that various outside influences rampant throughout society could dim it. This corruption of Inner Light was the Quakers' explanation for why individuals choose to commit crimes. The Quakers proposed that the solution to crime was to isolate criminals from all factors that might further corrupt them. They reasoned that this solitary confinement would allow prisoners to rekindle their Inner Light, and thus goodness, deterring future criminal activity.

In 1773, the Pennsylvania State Assembly approved the construction of the Walnut Street Jail, which reflected these Quaker beliefs of isolation. With its focus on “rehabilitation through discipline, and hard labor, whether in isolation or through congregate activities,” the structure of the Walnut Street Jail, commonly referred to as the Pennsylvania System, managed to exemplify many of the same key features of the modern-day American prisons that were still a century away from being established16. Based on their skills, prisoners were put to work on tasks ranging from shoe-making and weaving to picking cotton and beating hemp. Dangerous criminals ate, slept, and worked in solitary confinement, while non dangerous prisoners worked together in communal workshops. Regardless of the severity of their crime, everyone was forced to remain in absolute silence. Despite the lack of chains and corporal punishments, the strict solitude and silence enforced by the Walnut Street Jail created an unforgiving and traumatic environment for prisoners. Many inmates suffered with severe mental health effects from isolation, preventing successful rehabilitation. Despite the good intentions of its designers, deterioration due to overcrowding and the mental illnesses created by the jail led to the institution being closed down just five decades after it was built. While the Walnut Street Jail did not last long within United States history, it is remembered as the first significant American experimentation with a new penological system.

The next notable instance of American prison reform was the establishment of the Auburn System by Puritans in New York. In 1823, the previously-built Auburn Prison was reorganized to reflect Puritan beliefs regarding criminal behavior17. Convinced by John Calvin’s teachings, the Puritans claimed that human nature was permanently flawed by the Original Sin. The prevailing Puritan belief was that God predetermined who is “saved” and “damned,” and that “the object of prison discipline is not to improve [the prisoners’] nature, since this cannot be accomplished with even the harshest therapies, but to harness it so completely that it cannot assert itself.”18

Although it was only the second attempt at American prison reform, the Auburn Prison very quickly established the penological model that is still widely used in the United States today. The system is characterized by its use of congregate workshops and dining areas with individual cells for sleeping. Unlike in the Walnut Street Jail, correctional officers in the Auburn Prison were known for using corporal punishment for even the smallest of transgressions and

15 Supra note 6, at 106

16 Id. at 107

17 Id. at 108

18 Id.

imposing unrelenting discipline on its prisoners. However, despite the fact that the Puritans resolutely believed that criminal nature is inherent and unchangeable, the Auburn System taught its inmates valuable skills and trades, unintentionally opening the door for rehabilitation. The workshops in the Auburn Prison quickly became strong competition for outside factories. In fact, before long, private entrepreneurs were selling their tools and supplies directly to the prison to manufacture their products. This “industrial machine” created a skilled labor force for various industries without the said industries having to pay or train individuals to work in factories. The success of the Auburn Prison in rehabilitating criminals and generating profits allowed the Auburn System to become the basic penological model used throughout the United States before the turn of the century.

III. ISSUES WITHIN THE CURRENT PENOLOGICAL SYSTEM

Despite the fact that the American people have changed drastically in the two centuries since the Auburn System was first established, the penological model has been altered only a handful of times. Similar to other instances where an institution remains unchanged despite the passing of centuries, the failure of the American penological system to meet shifting attitudes and expectations is becoming increasingly clear. Prisons in the United States are characterized by overcrowding, high incarceration rates, and severe negative impacts to mental health19 .

Beginning in the early 1970s and lasting until 2010, the United States began imprisoning a larger portion of its citizens than any other country in the world20. This period of mass incarceration was a part of the larger white American response to the Second Reconstruction of the 1960s, during which radical social upheaval demanded the national recognition and expansion of Black Americans’ civil rights21. To counteract this expansion of African Americans’ freedoms, white politicians and citizens alike championed “tough-on-crime” practices and a “war on drugs.”22 These policies disproportionately affected people of color, and caused incarceration rates to skyrocket during this 40-year period23. To accommodate the rapid increase in prison population, the United States built a staggering number of new prisons. A 2015 tweet by Senator Cory Booker revealed that the country essentially “built a new prison every 10 days between 1990 and 2005,”24 creating a 43% increase in the number of correctional facilities over a period of just 15 years25. Despite this notable increase, the prison population substantially outgrew the available correctional facilities, with more than 1.6 million people

19 Supra note 7

20 Heather A. Thompson, Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History, 97 J. of Am. Hist. 703, 703 (2010).

21 Id. at 704

22 David Straughan, Interrogating Just. From 1990-2005, the U.S. Built A Prison Every 10 Days Here's Why (2021).

23 Supra note 20

24 Supra note 22

25 Suzanne M. Kirchhoff, Economic Impacts of Prison Growth, Cong. Rsch. Serv. 1, 15 (2010).

being incarcerated in 200926. This sizable prison population caused significant issues with overcrowding within American prisons.

While overall incarceration rates in the United States have been decreasing since reaching its peak in 200927, the United States still takes the lead with the highest incarceration rate in the world28. In fact, since its peak, American incarceration rates have declined at an average of only 2.3% per year29. At this rate, it would take until the year 2098 for the United States to return to its 1972, pre-mass incarceration prison population. These numbers are not helped by the fact that nearly 44% of released criminals return within just one year out of prison30. The United States’ high incarceration and recidivism rates, resulting from a 40-year period of mass incarceration, are major reasons for why the nation continues to host more than 20% of the world’s prison population31

New studies suggest that the current culture of American prisons, partly due to overcrowding, has significant negative mental health impacts not only on prisoners, but on correctional officers as well32. According to research from the California Correctional Officer Survey in 2017, correctional officers suffer from high rates of chronic illnesses, such as diabetes and heart disease, depression, anxiety, PTSD, and suicidal thoughts33. The survey found that one in three officers show symptoms of Post-Traumatic Stress Disorder, and a third of the participants reported that since they first started working in correctional facilities, a peer has expressed that they have become more anxious or depressed34. Compared to the 1 in 33 Americans that have had suicidal ideations, 1 in 9 correctional officers report having thoughts about killing themselves, with the number increasing to 1 in 7 among officers that have already retired35. The mental health issues faced by the vast majority of correctional officers can be explained by the violence and lack of support these officials face while working in American prisons36 .

Considering the prevalence of violence, sexual assault, and suicide within prisons in the United States, the impact of incarceration on prisoners is even more profound than that on correctional officers37. A study of released lifers38 in 2013 found that participants showed signs of a “Post-Incarceration Syndrome” similar to PTSD, with symptoms of social-sensory disorientation, social and temporal alienation, major depressive and bipolar disorders, and

26 Heather C. West, et. al., Prisoners in 2009 (Revised), Bureau of Just. Stat. 1, 1 (2011).

27 E. Ann Carson, Prisoners in 2021 – Statistical Tables, Bureau of Just. Stat. 1, 49 (2022).

28 Supra note 1

29 Nazgol Ghandnoosh, Sent’g Project, Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations (2023).

30 Supra note 3

31 Supra note 2

32 Supra note 8

33 Amy E. Lerman, Officer Health and Wellness: Results from the California Correctional Officer Survey, UCB 1, 4 (2017).

34 Id.

35 Id.

36 Id. at 2

37 Supra note 8

38 (Individuals that have been sentenced to life in prison)

substance abuse39 . Paralleling the impacts that violence in prisons has on correctional officers, witnessing and experiencing verbal and physical assaults during incarceration leads inmates to struggle with anxiety, hypersensitivity, suicidality, flashbacks, hypervigilance, avoidance, and difficulty regulating their emotions40. According to the World Health Organization, “overcrowding, various forms of violence, enforced solitude or conversely, lack of privacy, lack of meaningful activity, isolation from social networks, insecurity about future prospects (work, relationships, etc), and inadequate health services, especially mental health services” play a major role in the adverse mental health impacts of incarceration on prisoners41. While research on the mental health effects of incarceration is still new and needs further development, emerging studies increasingly suggest that American prisons have traumatic and lasting impacts on the psychological wellbeing of everyone within the system.

IV. PUBLIC OPINION ON AMERICAN PRISONS

As the failures of prisons in the United States continue to come into light, it is no surprise that public opinion on the American penological system is shifting in a negative direction. From the general public to the victims of crimes to the correctional officers that work in prisons, it is becoming increasingly clear that people want to see at least some level of change42. To put it simply, as a public affairs consultant from Columbus, Ohio stated, “The system’s broke. People know it’s broke.”43

A 2001 series of surveys conducted for the Open Society Institute revealed that more than half (54%) of American adults believe that the United States’ current penological practices are on the wrong track44. Other such studies that have been conducted since also show a similar, if not increasing, level of discontent with United States prisons that crosses even well-established socioeconomic and political party divisions. Research by the American Civil Liberties Union conducted in 2017 found near-consensus support for reforming various aspects of the criminal justice system45. According to the poll, 71% of Americans agree that decreasing the population of prisons is important, and the same number believe that incarcerating criminals often increases the chances of recidivism due to a lack of access to rehabilitative programs within prisons. Additionally, more than 2 in 3 claim that an elected official’s support for reducing the prison population would increase their willingness to vote for that candidate46. A research survey published in 2014 reported that a majority of the participants believed that life in prison is at

39 Marieke Liem & Maarten Kunst, Is there a recognizable post-incarceration syndrome among released "lifers"?, 36 Int’l J. of L. & Psychiatry 1, 1 (2013).

40 Meghan A. Novisky, “Gladiator School: Returning Citizens’ Experiences with Secondary Violence Exposure in Prison”: Victims & Offenders, 15 Victims & Offenders 594, 609 (2020).

41 World Health Organization, Mental Health Prisons, WHO 1, 1 (2005).

42 Benenson Strategy Group, Smart Justice Campaign Polling on Americans’ Attitudes on Criminal Justice, ACLU 1, 3 (2017).

43 Supra note 5

44 Id.

45 Supra note 42

46 Id.

least slightly hard (54.2%), depressing (67.5%), and dangerous (78.8%)47.These nation-wide, comprehensive surveys are conveying an abundantly clear message Americans are turning their backs on the once-popular tough-on-crime approach, and demanding a more empathetic treatment of prisoners48 .

Interestingly, and unfortunately, even some of the people that are most directly involved in the criminal justice system – correctional officers and the victims of crimes – find much to be desired with the way the American penological system is structured. In fact, more than half of correctional officers surveyed by the California Correctional Officer Survey said that they do not feel like their work positively influences the lives of those they work with, and that incarceration does not help prisoners be more prepared to be law-abiding citizens when they leave prison49. On a similar note, the 2016 National Survey on Victims’ Views on Safety and Justice stated that an “overwhelming majority of crime victims believe that the criminal justice system relies too heavily on incarceration, and strongly prefer investments in prevention and treatment to more spending on prisons and jails.”50 The victims surveyed believed at a difference of nearly 3 to 1 that rather than rehabilitate them, incarceration simply increases the likelihood that criminals will commit crimes51. This lack of satisfaction with the current penological system begs the question: if virtually no one feels like American prisons are helping address crime, why has it not yet been changed?

V. EVOLUTION OF THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE

Studying the changing attitudes of citizens towards the United States’ penological system suggests that Americans desire a more understanding, nurturing, and rehabilitative treatment of prisoners. Considering that the current system has quite the opposite effect on incarcerated individuals, as demonstrated by the high levels of mental health issues among prisoners and correctional officers, it could be argued that Americans are beginning to view our current prisons as being unnecessarily cruel. This sentiment opens the door for the 8th Amendment’s “Cruel and Unusual Punishment” clause to be applied in cases that revolve around the apparent inhumane treatment of individuals in prisons. Examining how this clause has developed throughout American history will reveal that this application of the 8th Amendment is not radical nor unprecedented, for what cruel and unusual punishment is constantly changing over the last two centuries.

Originally derived from the English Bill of Rights of 1689, the Founding Fathers intended for the cruel and unusual punishment clause to address the rampant use of extreme and

47 Kevin H. Wozniak, American Public Opinion About Prisons, 39 Crim. Just. Rev. 305, 314 (2014).

48 Supra note 42

49 Supra note 33, at 5

50 Alliance for Safety and Justice, Crime Survivors Speak Report, All. for Safety & Just. 1, 13 (2016).

51 Id. at 14

harsh corporal punishment against criminals52. In the 1890 case In re Kemmler, for instance, the Supreme Court used this narrow application of the 8th Amendment to determine whether or not execution by the electric chair violated the cruel and unusual punishment clause, and to declare vicious punishments such as crucifixion, burning at the stake, and breaking on the wheel unconstitutional53. For more than a century after the United States Bill of Rights was ratified in 1791, the primary interpretation and use of the 8th Amendment was to combat excessively brutal forms of corporal punishment, such as disemboweling, decapitation, drawing and quartering, and pillorying54.This interpretation limited the scope of the cruel and unusual punishment clause to only be applied to physical punishments that were argued to be drastic and barbaric.

It was not until the early 1900s that a more flexible interpretation of this amendment was recognized, dramatically expanding the applicability of the cruel and unusual punishment clause. In 1910, the Supreme Court heard the case Weems v. United States, in which a Filipino man was sentenced to hard labor for fifteen years as punishment for falsifying government records. In this case, the court found that the punishment of the petitioner was disproportionate to the crime committed55. By this reasoning, the Supreme Court decided that Weems’ punishment was unconstitutional under the cruel and unusual punishment clause of the Philippine Bill of Rights56 This interpretation of the 8th Amendment clause relied heavily on the development of what American society considered to be unconstitutional punishment. While Americans during the 1890 In re Kemmler case believed that only brutal corporal punishments could be deemed unconstitutional under the 8th Amendment, American society just two decades later decided that disproportionately long or harsh punishments could also be considered cruel and unusual punishment. This notable shift in attitude was the basis for the court’s decision in Weems v. United States, which set the precedent that the concept of “cruel and unusual punishment” can be adjusted to accommodate the ever-changing social norms of the nation.

The precedent established by the court in Weems v. United States was later reaffirmed by several cases, within which the Supreme Court created various tests to determine whether or not a specific instance of punishment can be deemed “cruel and unusual.” The most commonly used test is the “shocks the consciousness” standard that was established by the court’s decision in Rochin v. California (1952), which prohibits conduct that “‘shocks the conscience,’ offends ‘a sense of justice,’ or runs counter to the ‘decencies of civilized conduct.’”57 The flexible nature of the cruel and unusual punishment clause was best described by Chief Justice Warren in the

52 Ronald H. Rosenberg, Constitutional Law - The Eighth Amendment and Prison Reform, 51 N. Carolina L. Rev. 1539, 1541 (1973).

53 In re Kemmler, 136 U.S. 436 (1890)

54 The University of Chicago, The Role of the Eighth Amendment in Prison Reform, 38 U.. Chi. L. Rev. 647, 656 (1971).

55 Id.

56 (While the matter under question in this case occurred in the Philippines, the case was decided by the Supreme Court of the United States because the nation was under American control during this time. The court decided this case based on Philippine statutes, however the Philippine Bill of Rights’ cruel and unusual punishment clause parallels the one found in the Constitution of the United States. Thus, the court’s interpretation of this clause can also be applied to the United States and its statutes.)

57 Rochin v. California, 342 U.S. 165 (1952)

majority opinion of Trop v. Dulles (1958) when he stated that Weems v. United States established that “the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”58

VI. THE 8TH AMENDMENT AND THE TREATMENT OF PRISONERS

With these new standards of judging the constitutionality of punishments, the Supreme Court began utilizing the 8th Amendment to combat worsening living conditions within prisons. A variety of different cases illustrate how this shift was a response to the increasingly popular public opinion that prisons that fail to meet basic standards of living violate inmates’ protections from unjust and unfair punitive actions. The Supreme Court’s decision in Holt v. Sarver (1969), in particular, helped set the legal precedent that inhumane conditions within American prisons are analogous to cruel and unusual punishment, making them unconstitutional by the protections of the 8th Amendment59 .

The most notable such instance was in Holt v. Sarver, when the court decided that the living conditions in the Arkansas state penitentiary system violated the prisoners’ 8th Amendment protections. The petitioners claimed that the solitary confinement cells, the lack of correctional officers, the little to no protection from assaults by other inmates, and the denial of proper medical attention amounted to a violation of the cruel and unusual punishment clause60 . In other words, the harsh living conditions within these prisons did not meet the basic standards of living that were owed to the prisoners. Additionally, inmates in these Arkansas prisons were forced to work in fields to raise agricultural products to raise revenue for the state, and were often sent out to do complete the labor on projects for the friends of wardens and the parole board61. To put it simply, these prisons lacked any form of rehabilitation, and provided no assistance to prisoners to help prepare them for life upon their release.

In their 1969 decision, the Supreme Court sided with the petitioners, ruling that conditions in the Arkansas state prison farms were “shocking to the conscience of reasonably civilized people”, and that from then on, the court would continue to supervise state penal institutions62. This decision marked the beginning of the direct involvement of American courts in mandating and enforcing the proper treatment of prisoners in the United States. It also indicates that American society was beginning to narrow its definition of what constituted as “acceptable” punishment to exclude incarceration that, whether intentionally or not, lacks any form of rehabilitation and causes individuals to endure inhumane living conditions63

58 Trop v. Dulles, 356 U.S. 86 (1958)

59 Supra note 54, at 652

60 Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969)

61 Supra note 54, at 659

62 Supra note 54, at 653

63 Supra note 54, at 660

The extent of the involvement of the courts in improving prison living conditions is seen best in the 1971 decision in Jones v. Wittenberg64. In this case, a district court used the precedent set by Holt to declare the conditions of the Lucas County Jail in Ohio unconstitutional under the cruel and unusual punishment clause. In his ruling, the trial judge not only specified the exact conditions that needed to be improved, but also determined a time within which the issue had to be fixed and how the reformation would be funded. The depth of involvement and specifications of the judge’s decision in this case demonstrates how thoroughly American courts have abandoned their previously-used hands-off approach to prison reform. A number of similar decisions have since reinforced that, if need be, courts can have wide discretion in enforcing higher standards and stricter requirements for prisons65. In fact, if conditions could not be improved, as was the case in Hamilton v. Schriro (1996), the courts had the ability to rule that operation of the prison facility be shut down entirely.

Perhaps the most recent case, and one of the most notable, regarding the treatment of prisoners is Cole v. Collier (2019). This class action was brought by 37 inmates at the LeBlanc prison unit of the Texas Department of Criminal Justice66. The lack of air conditioning and ventilation in these units caused temperatures within the building to regularly exceed 100 degrees fahrenheit in the summertime67. These temperatures posed significant health risks to inmates that were heat-sensitive due to factors such as old age and pre-existing heart conditions. The District Court ruled in favor of the plaintiffs, deciding that the lack of air conditioning for heat-sensitive inmates violated their 8th Amendment protections against cruel and unusual punishment. The lack of preventative or safety measures taken by the Texas Department of Criminal Justice amounted to cruel punishment because of the unjust danger posed to the health of the prisoners. This reasoning suggests that, since inmates are under the care of the state penitentiary system, the state must protect the well-being of all incarcerated individuals.

Analyzing a series of court decisions since the late 18th century quickly reveals that the application of the 8th Amendment has evolved to accommodate the constantly changing definition of what constitutes cruel and unusual punishment; and while incarceration inevitably requires that at least some of an individual’s rights be taken away, this new interpretation of the cruel and unusual punishment clause clearly establishes that inmates have a right to decent and humane living conditions within prisons, as well as access to rehabilitative services68

64 Supra note 52, at 1543

65 Supra note 52, at 1544

66 Jolie McCullough, The Texas Tribune, Judge approves settlement mandating air conditioning at hot Texas prison (2018).

67 Id.

68 Supra note 54, at 655

VII. THE 8TH AMENDMENT AND PROMOTING REHABILITATION

Prior to the Supreme Court’s decision in Holt v. Sarver, the courts attempted to take a “hands-off” approach to prison reform69. However, it is clear that inhumane prison conditions and increasing pressure to reform correctional facilities pushed the courts to expand judicial involvement in the correctional system. While the use of the 8th Amendment in improving the treatment of prisoners has become a well-established precedent, the question of whether the cruel and unusual punishment clause can be utilized to enforce the use of rehabilitative treatments in prisons is still up in the air.

There are a few major cases in which the rehabilitation of prisoners was a large factor in determining the constitutionality of a form of punishment. In Rouse v. Cameron (1965), the Supreme Court ruled that individuals sent to a mental hospital after pleading not guilty by reason of insanity are guaranteed a right to treatment for their mental illnesses70. The court’s decision in this case established the precedent that the state has a duty to provide incarcerated individuals with access to mental health treatment. This constitutionally recognized right to rehabilitation for mental illnesses was furthered and expanded on in later cases, such as Creek v. Stone (1967)71 and In re Elmore (2007), which guaranteed the right to mental health treatme\nt for juvenile delinquents72. Soon after Rouse, the Eighth Circuit Court of Appeals condemned whipping under the cruel and unusual punishment clause in Jackson v. Bishop (1967), reasoning that its use was both brutal and lacked rehabilitative potential. This case suggested that the potential for an action to rehabilitate a criminal could be an indicator of whether it can be considered cruel and unusual punishment. However, none of these cases have explicitly stated that simply lacking a form of rehabilitative program can constitute cruel and unusual punishment. Rather, only the failure to provide some specific programs, such as treatment for mental illnesses, to the individuals that require the service has been determined to be unconstitutional under the 8th Amendment.

American courts’ decisions in the previously mentioned Holt v. Sarver and Sostre v. McGinnis (1971) reveal that the expansion of the cruel and unusual punishment clause to deem the lack of rehabilitative programs in prisons unconstitutional is almost entirely based on how public opinion continues to evolve. When considering whether the lack of rehabilitative programs alone could trigger the cruel and unusual punishment clause, the Supreme Court stated in their decision in Holt that “a sociological theory may ripen into constitutional law.”73 In Sostre v.McGinnis, the Second Circuit determined that a punishment could be considered cruel and unusual by three sources74: “historic usage…practices in other jurisdictions…and public opinion.”75 These two statements emphasize the role that the perspectives of the general public

69 Supra note 54, at 651

70 Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966)

71 (Juvenile delinquents were extended the right to treatment.)

72 (Juvenile delinquents were extended the right to treatment), Supra note 54, at 662

73 Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969)

74 Supra note 54, at 662

75 Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971)

play in determining what constitutes cruel and unusual punishment. In other words, for any further progress to be made in using case law to further improve the treatment of prisoners, the people must decide that they believe the state has a requirement to provide rehabilitative services, such as professional development workshops, mental health resources, access to education, and programs to reintroduce recently released prisoners to society. If American society were to decide that it would be cruel and unusual to incarcerate individuals without providing them with access to rehabilitative measures that help improve their personal circumstances, then it could very well open the door for the courts to legitimize this perspective in case law.

VIII. CONCLUSION

An examination of the history of the American penological system reveals that the prison model used today, the Auburn System, was first established exactly two centuries ago. Since its introduction in 1823, the Auburn System has undergone relatively few changes, a possible explanation for why current American prisons have begun raising significant concerns with overcrowding, high incarceration and recidivism rates, and severe negative impacts to the mental health of prisoners and correctional officers. While the Auburn System was based on the Puritan belief that an individual’s criminal nature is unchangeable, current American thinking views at least one of the primary goals of incarceration to be the rehabilitation of criminals. This push for more rehabilitative practices within prisons has been increasing in recent years, suggesting that Americans are beginning to view the complete lack of access to rehabilitative programs within prisons to be cruel and unusual.

A series of major 8th Amendment cases clearly established that the cruel and unusual punishment clause is flexible and amenable to the changing perspectives of the general public. Rather than the typical top-down approach where the courts establish the final interpretation of constitutional rights, the Supreme Court has decided that the extent of this clause will be determined almost solely by what the American people consider to be cruel and unusual punishment. Moreover, the definition of “cruel and unusual” must constantly change to accommodate the ever-evolving attitudes of American society. In the past, the term has been expanded from only focusing on corporal punishment to also including disproportionate punishment. As Americans increasingly push for greater rehabilitation in prisons, the term could potentially expand in the future to also include prisons that completely lack rehabilitative programs. This unique interpretation of this clause has allowed for the 8th Amendment to justify the courts’ involvement in improving the treatment of prisoners. However, the ability of the cruel and unusual punishment clause to mandate rehabilitative treatments for prisoners has been strongly debated since Americans have begun their call for a transition into a more rehabilitative prison system.

In most recent cases, the rehabilitation of prisoners was only one of many factors considered by the court to determine the constitutionality of a punishment. The courts have yet to

declare it unconstitutional for prisons to lack general rehabilitative services for the entire inmate population. For the 8th Amendment to truly be used to promote rehabilitation within prisons, the court would have to explicitly state that the ultimate, and possibly even only, purpose of incarceration is to reform criminals. In other words, for the rehabilitation of prisoners to be a “protected right, confinement for purposes other than rehabilitation, even under decent conditions, must be declared ‘cruel and unusual.’”76 As more states and facilities begin implementing rehabilitative programs within their prisons, it is possible that public opinion could determine that a lack of rehabilitative programs in correctional facilities is cruel and unusual, especially considering how Americans are increasingly viewing the primary goal of incarceration to be the reformation of prisoners. Under this reasoning, it would be required for prisons to have programs that help incarcerated individuals receive education, develop their professional skills, and access mental health resources, in order to maximize their potential for success upon their release from prison. Providing programs such as these help reintroduce inmates to society by providing them with the resources that help them get jobs, maintain their mental well-being, and create beneficial social relationships, substantially dropping recidivism rates. With these changing perspectives of the purpose of incarceration in mind, it is entirely plausible that the United States courts could soon decide that a lack of rehabilitative programs make conditions within prisons “cruel and unusual,” and thus unconstitutional. This new interpretation of the 8th Amendment could open the door for the prison reform movement to bypass the long, winding, and often unsatisfactory legislature in favor of changing prisons through the case law established by American courts.

Congress, States, and the Constitution: The Reform of Immigration Law Alyssa Henrie

Edited by Ella Campbell

The Constitution of the United States gives supreme powers of policy making to the federal government. States have the constitutional right under the 10th Amendment to create policy in areas not reserved to the federal government. While this preemptive power of politics feeds into the ideals of federal and state rights from the Framers, there comes a question of whether this structure of government is effective for certain policy areas such as immigration. Immigration policy is one of the topics that Congress has a difficult time addressing. While the Constitution does not specifically mention immigration, Article I, Section 8, Clause 4 discusses the government’s power over naturalization. Furthermore, Article I, Section 8, Clause 3 clearly states that Congress has power over foreign commerce. The Constitution has been interpreted to grant Congress plenary authority, discretion unrestrained by constitutional limitations, over immigration policy. Immigration is a complicated subject because border states are much more affected by immigration than land-locked states. Therefore, it is difficult for Congress to make decisions about comprehensive immigration reform, even though it is severely needed. This article will discuss the powers the Constitution has implicitly granted to Congress over immigration, why dual federalism is necessary when addressing immigration policy, and what the pros and cons are of the federal government having the final say over immigration policy.

The United States has had a long and strenuous history with immigration policy. Dating back to the country’s origin, the Founding Fathers kept the topic of immigration broad in the Constitution. This was intentional so that Congress, comprised of public representatives, could make the final decisions. While the Constitution never explicitly mentions immigration, the Supreme Court of the United States and other institutions believe that Congress has plenary power over immigration because of Article I, Section 8, Clause 4 which is the “uniform Rule of Naturalization.”1 This power prevents states from bestowing citizenship.2 The United States Government is primarily based on a dual federalist structure. The federal government has supreme power over policymaking, but states and municipalities have the right to create laws under their own jurisdictions as long as state and federal laws do not conflict. The federal government having complete power over the US border has led to many instances, as seen throughout American history and in recent years, of immigration failures. This is why there is a great need for immigration reform in the United States and an emphasis for a dual federalist structure instead of the federal government having complete power over immigration. This article will discuss the powers the Constitution grants to Congress in immigration, and why a dual federalist structure is imperative for successful immigration policy reform. While it’s necessary to recognize the issues that have occurred from federal immigration policy, it's also incredibly important to acknowledge these issues from the border state perspective. All states across the nation are impacted in some way by immigration, but the border states see the critical realities of the US border patrol. The Canadian border states have similar immigration issues, but the primary example in this article surrounds the Mexican border and the effects of immigration on Texas, California, and Arizona. Plenary power over immigration policy has led to many frustrated state legislatures who are wanting to see national border control or reform but haven’t. The foundation of federalism, regarding the authoritative power the federal government has over the states, has led to federal exclusivity in this policy area.3 In response, many states attempted to pass immigration policies, but were stopped multiple times by the federal government. States have the need to pass policy to control their borders and protect their constituents from illegal immigration.4 These attempted policies show the desire among the border states to exercise some local and state legislative power over this issue. As the law is evolving, dual federalism is the correct structure to address immigration so that states pass policies that are necessary and in conjunction with their constituent’s beliefs. Justice Brandeis has reported that states are used as political laboratories, who are allowed to have their own

1 DAVID WEISSBRODT ET AL., IMMIGRATION LAW AND PROCEDURE IN A NUTSHELL, 59 (West Academic Publishing, 7th ed. 2017).

2 Id.

3 Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 Hastings L.J. 1673, 1681 (2011).

4 Id.

piecemeal approach to creating the law.5 This article uses several historical examples of federal immigration failures to expand on the need for immigration reform, a dualist structure, and the need for states to continue expanding their immigration policies to balance the federal government’s lack of addressing this issue. The vagueness of the Constitution has contributed to the frustration among the states; however, the vagueness can be used to the state’s advantage as they still have a right to formulate policy regarding immigration under the 10th Amendment of the US Constitution.

II. THE CONSTITUTION AND IMMIGRATION

The foundation of the United States was built on the idea that America was in favor of immigration and would be the country known as the “melting pot” of the world.6 In fact, all of the Founding Fathers were children of immigrants, and 7 of the 39 men who signed the Constitution were immigrants themselves, including Alexander Hamilton, who was born in the West Indies, and James Wilson, who was born in Scotland.7 The Founding Fathers knew that immigration would be key to the economic growth of the new country.8 Powerful influences in the foundation of the nation also favored immigration: Thomas Jefferson was a strong proponent of allowing immigrants to enter the country because these individuals were also in pursuit of “life, liberty, and … happiness.”9 However, when the Founders discussed immigration at the Constitutional Convention from May to September 1787, they decided against writing firm immigration policy in the Constitution. The Founders knew that the Constitution had to live in a state of flux, as they were founding a country using a document that they hoped would be used by the future generations of America.10 They simply wrote in Article 1, Section 8 that “Congress shall have the right to regulate Commerce with Foreign Nations…To establish an uniform Rule of Naturalization.”11 These powers were interpreted to also extend to immigration and how immigrants can become citizens of the United States. The Founders wanted to leave the complex issue of immigration in the hands of Congress.

Article I, Section 8, Clause 3 was written so that Congress has power overregulating foreign commerce among the several states, and among the tribes.12 The Commerce Clause was

5 Id.

6 Jacob DeLaRosa, Melting Pot or Boiling Pot? Exploring Our Society’s Diversity, 114 The Annals of Thoracic Surgery 18, 18-19 (2022)

7 Lillian Cunningham, Constitutional: 'Nationality', THE WASHINGTON POST (2017), https://www.washingtonpost.com/news/on-leadership/wp/2017/08/14/episode-3-of-the-constitutional-podcastnationality/

8 Id.

9 Brandon E. Davis, America’s Immigration Crisis: Examining The Necessity Of Comprehensive Immigration Reform, 54 Loy. L. Rev. 353, 354 (2008)

https://drive.google.com/file/d/1IUvyxsMTKiYfNguyicK1dTf1pBCeWQvH/view?usp=sharing

10 THE NATIONAL ARCHIVES, CONSTITUTION OF THE UNITED STATES-A HISTORY (2021)

https://www.archives.gov/founding-docs/more-perfect-union

11 U.S. CONST. art. I, §8, cl.4

12 U.S. CONST. art. I, §8, cl.3

primarily used in the 1800s when ships with immigrants were coming to the US. The Supreme Court determined that this article of the Constitution was a part of immigration policy so that ships that were bringing immigrants to the shores of the United States could be taxed legally.13 Furthermore, the idea of the Commerce Clause giving the government plenary power over immigration was amplified in Chae Chan Ping v. United States, 130 US 581 (1889). The Supreme Court declared that Congress and the President have “near-absolute” power over immigration.14 This protected the federal government from the Supreme Court interfering with immigration policies passed by Congress. In other words, the Supreme Court upheld the complete power the federal government has over immigration. While the Constitution never explicitly mentions immigration, the Ping decision solidified the “plenary power doctrine.”15 The justices emphasized that Congress’ decision to deny entry to non-citizens is “conclusive upon the judiciary.”16 The Ping decision, written by Justice Stephen Johnson Field, emphasized that, “[The federal government] is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments.”17 The reasoning behind the decision is the belief that the government was built as an empire and the states are simply constituencies that don’t have the right to maintain various aspects of policy. Therefore, the federal government has the final say especially over foreign and national issues. This decision highlighted the extensive powers, foundational beliefs, and authority the federal government has over immigration.

III. THE HISTORY OF FEDERAL IMMIGRATION POLICY IN THE UNITED STATES

Congress did not pass immigration policy until the Naturalization Act of 1790. This Act restricted all immigrants from entering the United States unless they were a “free white person” and added two-year citizenship restrictions.18 This law limited the scope of who could enter the US and prioritized individuals coming from predominantly white countries. This Act began the anti-immigration policies throughout American history that still dominate today’s politics. The Naturalization Act of 1790 was not the last piece of immigration policy limiting individuals from entering the country based on their race. The end of the Civil War gave rise to further discussions about who could and could not legally enter the country. The Naturalization Act of 1870 was introduced by Charles Sumner who wanted to eliminate “the word ‘white’ wherever it occurs so

13 Jennifer Gordon, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution, 93 Ind. L.J. 653, 654 (2018)

14 Id.

15 Jennifer Gordon, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution, 93 Ind. L.J. 653, 654 (2018)

16 Rose Cuison Villazor, Chae Chan Ping v. United States: Immigration as Property, 68 Okla. L. Rev 137, 138 (2015)

17 Chae Chan Ping v. U.S., 130 US 581 (1889)

18 Madeline Y. Hsu, Et. Al., Timeline, THE UNIVERSITY OF TEXAS AT AUSTIN DEPARTMENT OF HISTORY COLLEGE OF LIBERAL ARTS (2019), https://immigrationhistory.org/timeline/

that there shall be no distinction of race or color in naturalization.”19 Although this piece of legislation was inspired by freeing enslaved black men, other Congressmen did not want to expand citizenship to Asians and Native Americans. Therefore, the Naturalization Act of 1870 only extended citizenship to free white men and aliens of African descent or nativity.20 Immigration remained exclusive to specified races in US law. Anti-Asian immigration policy was on the rise during the late 1870s and 1880s. Anti-naturalization steps were taken with the Page Act of 1875, which restricted Chinese immigrant workers and their wives from permanently residing as citizens in the United States. This bill inspired the Immigration Act of 1882 (otherwise known as the Chinese Exclusion Act), which imposed a ten-year ban on Chinese immigrant workers from permanently residing in the US. Congress continually renewed this ban every ten years until 1942. The Chinese Exclusion Act was not repealed until 1943.21 Immigration has been used as a weapon by Congress for anti-immigration agendas, rather than providing help to those searching for a permanent, safe, and economically successful country to live in. Unfortunately, individual state legislatures during this time did not have an opportunity to implement more specifically tailored immigration policy to reflect their constituents’ ideologies and individual state needs. While it’s not a guarantee that state policies would be better or worse for the immigrants or citizens in the country, they would better reflect how citizens feel about immigration in a given state.

Immigration continued to be contentious as the Immigration Act of 1891 was used as an expansion to exclude Chinese immigrants.22 Targeting specific minority populations in the United States gave rise to a new era of congressional immigration power. The Expatriation Act of 1907 stripped away natural born United States women’s citizenship if they married noncitizen immigrant men.23 The Immigration Act of 1917 was known as the Barred Zone Act because it banned people from the Middle East and Southeast Asia from immigrating to the United States.24 The next immigration act pertinent to policy in today’s age is the Immigration and Nationality Act of 1965, which encouraged quotas and prioritized family reunification, employment, and refugees. It was also the first time that immigration to the Americas was capped.25 The significance of these acts is the lack of involvement the individual states and municipal governments had with these political conversations. The federal government was the only entity making these decisions, which were heavily race based and targeted specific groups of individuals in the early to late 1900s. Some scholars have argued that allowing the states more power would put illegal immigrants at greater risk than leaving immigration policy to the federal government. While this may be true for some states, there have been consequences of leaving immigration policy to the federal government, such as targeting vulnerable minority populations.

20 Id.

21 Id.

22 Hsu, supra note 18

23 Id.

24 Id.

25 Id

19 Andrew M. Baxter & Alex Nowrasteh, A Brief History of U.S. Immigration Policy from the Colonial Period to the Present Day, 919 CATO POLICY ANALYSIS 1, 8(2021).

This analysis that states would be more severe toward the illegal and legal immigrant population has not always been true as an empirical matter.26 In fact, states that have received the highest rate of immigration have largely been more immigrant and undocumented friendly than Congress.27 The 1996 Personal Responsibility Act and Work Opportunity Reconciliation Act allowed the states to “deny most general welfare benefits to immigrants.”28 However, since 1996, a majority of states passed more programs to help immigrants and undocumented individuals receive welfare benefits.29 Furthermore, 16 states offer healthcare benefits, 20 states allow undocumented people to obtain drivers licenses, and 23 states and the District of Columbia offer in-state tuition for undocumented students accessing higher education.30 The more involved states are in national politics, the more representative the democratic government is. This means immigrants and undocumented individuals would receive more help from immigrant friendly states. The consequences of allowing states more political power would be unknown, but that doesn’t mean that remaining under the current structure of immigration policy would be superior for these populations.

States across the nation have been affected by immigration and have long desired to be a part of the discussion. Most recently, since January of 2021, Republican states have filed 26 lawsuits against the Biden Administration for immigration policies that would make it easier for illegal immigrants to enter into the US.31 In these cases, Texas and Louisiana partially blocked new directives that “established priorities of who should and should not be picked up and deported.”32 The states have made the point that they want to be heard, and have done so via the court system that is already heavily litigated in. This use of court resources would be avoided if states had more power in the first place regarding implementing and creating immigration policy alongside the federal government. States have been frustrated throughout history because of the lack of consideration when federal government officials are implementing immigration policy. When states aren’t a part of the immigration conversation, lawsuit action is taken. However, the lawsuits remain in favor of the federal government. Only 4 of the 106 lawsuits against the Biden Administration were successful and in favor of the states who “banded together [against the federal government immigration policies].”33 States want to exercise the right to implement policy and must continue doing so in order to take care of their constituent’s needs. The vagueness of the Constitution has shaped the federal government’s plenary power, although it does not restrict states from passing laws entirely. States deserve a stronger presence in immigration policy to ameliorate the law.

26 Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57, 57-92 (2007)

27 Id.

28 Id.

29 Id.

30 Id.

31 Kristian Hernandez, States Band Together to Block Immigration Policy, THE PEW CHARITABLE TRUSTS (2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/05/09/states-band-together-to-blockimmigration-policy

32 Id.

33 Id.

IV. THE SUPREME COURT’S POWER OVER SHAPING IMMIGRATI ON POLICY

The Supreme Court of the United States has reaffirmed Congress’ power over immigration in several cases. The first of many immigration cases that emphasized the plenary power of Congress was Chae Chan Ping v. United States , 130 US 581 (1889) This case discussed how the Scott Act of 1888, which excluded Chinese immigrant workers from entering the United States, was an exclusive and constitutional action of Congress’ power. 34 It therefore reiterated that Congress has the right to decide who can or cannot ent er the country on any grounds, whether it be discriminatory or not. 35 Several years passed before an immigration case re-entered the court’s docket. Knauff v. Shaughnessy, 338 US 537 (1950) allowed the Supreme Court to clarify that the Executive Branch als o has implied powers from Article II of the Constitution to exclude immigrants via executive orders. 36 These cases further reaffirmed that judicial action would be harsher for those who were residing in the US as noncitizens than individuals who were standing outside of the border waiting to come in. 37 The Supreme Court has a hand in politics as they reaffirm or oppose congressional discretion over immigration policy. The Supreme Court has single handedly implemented reform, made decisions, and changed immigration policy nearly as much as the federal government has. The Supreme Court continually empowers Congress to have executive authority over immigration policy. While Congress has had an exclusive history with immigration law, the Supreme Court has both upheld and reversed several legal actions regarding immigration. A landmark immigration case that shaped the federal government’s policies surrounding the question of naturalization and immigration for the Chinese was the United States v. Wong Kim Ark, 169 US 649 (1898) decision. Wong Kim Ark was a natural born citizen of the United States in San Francisco, CA. However, his parents were Chinese immigrants. Ark’s parents eventually moved back to China after raising him in the US because they knew they could never become US citizens. When Ark was 21, he returned to the US after a brief trip to China where he visited his parents for a couple of weeks. Border control would not let Ark’s ship dock in the San Francisco Bay because they believed he was not a natural citizen. Ark lived on the boat for four months as the court hearings took place. The question for the court was whether Ark was considered a US citizen or not because he was of Chinese descent. The Supreme Court ruled that because the Constitution allows “any” individual who is born on US soil to be granted birthright citizenship, Ark was declared a citizen. 38 This decision devalued the Chinese Exclusion Act as it guaranteed all Chinese descent who were born in the US naturalized citizens. This decision f urther guaranteed rights for thousands of children of immigrants from any nation, as a child born on US soil is guaranteed citizenship.

34 Ping, 130 U.S. 581

35 Gordon, supra note 13, at 661

36 U.S. CONST art II

37 Id.

38 United States v. Wong Kim Ark, 169 US 649 (1898)

Although the Court’s decisions played a helpful role in achieving constitutional rights for various immigrant communities, the Supreme Court has also validated restrictions from the federal government against immigrants based on nationality, religion, etc. Trump v. Hawaii, 585 US (2018) is a perfect example of how the Court upheld the President's decision that was detrimental to immigrants predominantly from the Muslim community. In 2017, President Trump issued an executive order known as the Foreign Terrorist Entry order that banned travel from seven countries including: Yemen, Iraq, Venezuela, Iran, Libya, Somalia, and Sudan.39 In the order, Trump explained that he had to protect the country from potential terrorist attacks and that what was happening in these countries during this time posed a threat to public safety in America.40 A majority of the individuals from these countries are predominantly a part of the Muslim faith.41 The state of Hawaii had many citizens who had family members who were negatively affected by this travel ban, so they sued the Trump administration. The case went to the Supreme Court, where the Court was asked to determine if the President has the authority to issue that proclamation, and if the proclamation violated the Establishment Clause of the Constitution. The Court held that the President had the right to issue the proclamation, and that the statue did not violate the Establishment Clause in the First Amendment.42 The Establishment Clause prohibits the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.”43 The Court rejected this argument because the executive also has the right to exclude aliens for any reasons including discriminatory ones.44 The federal government and the Supreme Court have been used as systemic weapons against minority populations, and it’s important to recognize this sort of history in the US government when it comes to immigration. States with a more liberal view of immigration may pass laws that are more immigration friendly and inclusive to minority populations without running into the federal government’s protestations. Policies passed through the state level would more likely reflect the feelings of Americans, as the state legislatures could decide what their constituents’ values and priorities are when addressing immigration.

A. States’ Immigration Challenges

The federal government only has policy powers that are delegated by the US Constitution. The 10th Amendment of the United States expresses that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.”45 Much like other dual federalist structures for policy making, states have a limited scope in policy areas that are constitutional for legislatures to address.

39 Trump v. Hawaii, 585 US (2018)

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 U.S. CONST amend. X

States do not have the power to enact pure immigration laws which “control who should or should not be admitted to the country, and the conditions under which a legal entrant may remain.”46 This is beneficial for the balance of policy for the nation because it meets the requirements set by the Constitution, giving plenary power of immigration to Congress. The dual federalist system is the best system for immigration policy reform because it gets the states involved and gives greater voice to Americans who are in the border states and are truly affected by immigration. The 10th Amendment gives the states the ability to create reform within their constitutional rights.

For a dual federalist structure to work, states need to have recognized powers for implementing US policy. States were officially delegated power for immigration law under the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996. The Act allowed states to enforce immigration law through local and state police departments.47 Furthermore, the Act allowed the state to prepare cases to present in front of an immigration judge. The bill was passed in order to “improve border control by … increasing interior enforcement agencies by agencies charged with monitoring visa applications and visa abusers.”48 In other words, the act was passed to work with state law enforcement and cease the crisis of illegal immigration activity in the late 1990s. This structure gave the states more power to be involved with immigration enforcement and policy making. While states have delegated powers to implement and enforce immigration policy, they do not have more of a say in the admission process or visa requirements that immigrants must attain in order to work for their state. There is a lot of red tape regarding which policies states can implement, as the Constitution has been interpreted to hold that the power of federal immigration for admission, exclusion, and deportation is up to the federal government.49 Nearly every law that has been implemented at the state level for immigration has been challenged by the federal government or a civil litigation group.50 For example, in 2011 Alabama passed HB 56 which made it a crime to transport or harbor undocumented immigrants and allowed police officers to arrest anyone they believed to be in the US illegally. A federal court got involved because provisions of the law conflicted with preexisting federal law, such as harboring and transporting undocumented immigrants, the entire bill was no longer enforceable. The Circuit Court claimed the federal law already “comprehensively addresses criminal penalties for these actions undertaken within the borders of the United States, and a state’s attempt to intrude into this area is prohibited because Congress has adopted a calibrated framework.”51 The federal law is found under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which asserts criminal penalties against an individual who “knowing or in reckless disregard of the fact that an alien has come to, entered,

46 De Canas v. Bica, 424 U.S. 351, 355 (1976)

47 Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787, 800 (2008)

48 H.R. Rep. No. 104-828, at 347 (1996)

49 Id.

50 Scott D Pollock, STATE IMMIGRATION LAWS VS. FEDERAL IMMIGRATION LAWS:WHAT'S THE DIFFERENCE? SCOTT

D. POLLOCK &ASSOCIATES, P.C. (2023), https://www.lawfirm1.com/faqs/state-vs-federal-immigration-laws/

51 Adam Liptak, JUSTICES DECLINE TO TAKE CASE ON ALABAMA IMMIGRATION LAW, THE NEW YORK TIMES (2013), https://www.nytimes.com/2013/04/30/us/supreme-court-declines-case-on-alabama-immigration-law.html

or remains in the United States in violation of law, conceals, harbors, or shields from detection… such aliens.”52 After Alabama v. United States, No. 12-884 (2013) was struck down, the Supreme Court refused to grant writ of certiorari on appeal.53 The law was struck down because Alabama was attempting to be harsher on illegal immigration. Consequently, HB 56 became known as the “harshest immigration law in America.”54 Alabama’s attempt to enact policy was because, as state Representative Kerry Rich claimed, “If we wait for the federal government to put this [illegal immigration] fire out, our house [Alabama] is going to burn down.”55 In this case, the Alabama law needed to be struck down; however, the point here is that Alabama was so desperate to see change in the law that they went to extremes to try to make it happen. In 2017, Texas passed SB 4 which prohibited cities from implementing “sanctuary” policies that limit cooperation with federal immigration authorities. It would allow the state and local government officials to also ask for an individual’s citizenship status during regular traffic stops.56 The law was challenged by other cities and counties in Texas. The federal government also contested this law for saying that SB 4 violated the Constitution’s Supremacy Clause. Ultimately, a federal judge blocked SB 4 from being implemented into Texas state law.57 Furthermore, in 2018 California passed AB 450 which prohibited employers from voluntarily allowing immigration authorities on their premises without a warrant or subpoena. The law was once again challenged by the federal government. The 9th Circuit Court of Appeals ultimately upheld the District Court’s decision to temporarily ban AB 450 from entering law in California in United States v. California, 921 F.3d 865 (9th Cir).58 States have tried to implement immigration policy, but because of the US’ former exclusive power over immigration, it has become a significant challenge to pass laws regarding this political area due to court action. Although this court action may be justified at times, as the Alabama case showed, states have been unable to be a part of the conversation and have gone through great lengths in attempt to get Washington to act.

V. THE CURRENT STATE AT THE BORDER AND THE NEED FOR REFORM

Legal scholars have been in favor of giving more power to state governments because it would help enforce immigration law and would benefit national security.59 On the other side of the debate, scholars are fearful that encouraging states to become more involved with immigration policy implementation would lead to an increase in law enforcement. Increasing law enforcement could potentially discourage noncitizens from reporting crime and could increase

52 8 U.S.C. 1324(A)(iii)

53 Liptak, supra note 51

54 Benjy Sarlin, How America’s harshest immigration law failed, NBC NEWS (Dec. 16, 2013, 1:48 PM), https://www.nbcnews.com/id/wbna53847137

55 Id.

56 Richard Gonzales, FEDERAL JUDGE TEMPORARILY BLOCKS SB4, TEXAS LAW TARGETING SANCTUARY CITIES NPR (2017), https://www.npr.org/sections/thetwo-way/2017/08/30/547459673/federal-judge-temporarily-blocks-sb4texas-law-targeting-sanctuary-cities

57 Id.

58 United States v. California et. al, No. 2:18-cv-00490-JAM-KJN (E.D.Cal. 2018)

59 Huntington, supra note 38, at 789

the likelihood of racial profiling.60 States have had to take on illegal immigration policies in response to Congress’ inaction from implementing reform. Reform would benefit the border states’ special interests. In turn, the lack of reform has harmed their constituents. In response, states have decided to act. Arizona business owners who had knowingly or unknowingly hired illegal immigrants lost their business licenses. Some illegal immigrants are more protected in states like New York, which offers healthcare to immigrants diagnosed with cancer and gives instate tuition to undocumented students.61 Before we reach the policy discussion of the article, it’s valuable to evaluate the realities at the border and the need for reform to truly understand why states deserve a larger say in this legal conversation.

A. Effect on Citizens in the Border States

The United States government has had an exclusive undertaking of immigration policy for more than one hundred years. This has resulted in severe consequences for citizens in the border states regarding their safety and economic challenges. The US Customs and Border Protection reported that in 2019, more than 970,000 illegal aliens attempted to enter the United States through the southwest border and more than 150,000 individuals were able to do so.62 There have been massive amounts of illegal immigration through primarily the US Mexico border. States have exceeded the necessity to pass legislation to address the “federal government’s failure to curb unauthorized migration.”63 US Border Patrol Chief Carla Provost told Homeland Security in June of 2019 that “Border security is national security there is no difference and the crisis on our southwest border puts our national security at risk.”64 Furthermore, the number of immigrants continues to rise every year. Illegal immigration has the potential of harming constituents in border states and the country’s national security. While the federal government has the plenary power to address national security, the states could implement policy where it is needed but are unable to do so because of the difficulties of passing immigration law from federal government challenges. The dualist structure is the most beneficial structure to address the negative impacts of immigration on citizens in the border states, so the states may improve public safety measures.

There have also been incidents of racial profiling in the border states due to the influx of immigration from the US-Mexico border. Legal scholars argue that the increase of federal enforcement and state police officials looking for illegal immigrants has led to racial profiling of Mexican-descent individuals for accusations of being illegal immigrants despite being Americans.65 Research has shown that militarized areas (i.e. the US-Mexico border) lead to

60 Huntington, supra note 38, at 789

61 Id.

62 U.S. CUSTOMS AND BORDER PROTECTION, BORDER CRISIS:CBP’S RESPONSE (2023), https://www.cbp.gov/frontline/border-crisis-cbp-s-response

63 Huntington, supra note 38, at 802

64 U.S. CUSTOMS AND BORDER PROTECTION, supra note 59

65 Id.

communities feeling under siege in which targeted groups “...endure [the] contestation of their own identity and citizenship.”66 This leads to targeted minority groups being quiet and fearful of the militant authority in these border towns.67 While legal and political scholars correctly address the issue of enhanced racial profiling of Mexican-Americans who are targeted by the federal and state officers, it’s important to realize that states also have the authority to balance the abuse of federal and state power in these situations. If border patrol officers are also profiling Mexican Americans in other states, the legislatures and the citizens of that state have more of a say regarding going to their state legislatures to stop the racist implications of immigration law enforcement measures. State legislatures are closer to the people of their state, meaning they can more easily discuss important political matters with the public than members of Congress in Washington, DC can. Therefore, reform and positive change is more likely to occur if the states have a say in immigration policy. States can create reform where it is needed, which would more likely reflect what the public wants. The Pew Research Center conducted a study on which policies members of the Republican and Democrat parties prioritize regarding immigration. Pew found that Republicans and Democrats have varying ideologies that are very divisive about how to approach immigration.68 The graph in their study emphasizes that 79% of Republicans are more in favor of increasing deportations of immigrants who are here legally versus 39% of Democrats in favor of this legislation. On the other hand, 37% of Republicans are in favor of establishing a way for immigrants that are already in America illegally to stay legally. 80% of Democrats are in favor of this legislation. There are vast differences among the party lines in most states in America, as states are either predominantly republican or democratic.69 Therefore, individual red and blue states being more involved with immigration policy would only benefit Americans and meet their desires for immigration reform, one way or the other.

B. Undocumented Immigrants and Their Realities - News Reports

Immigration policy is not only difficult for citizens in the border states, but it’s also a crisis for the immigrants entering the country. In 2019, the US Customs and Border Protection agents reported that they were mostly apprehending families and unaccompanied children from Central America.70 America was receiving “...tens of thousands of unaccompanied children” at the border.71 Families who were apprehended would approach Border Patrol and ask for assistance with beginning the citizenship process. Thousands of families were stuck at the border

66 Id.

67 Sabo Et. Al., Everyday Violence, Structural Racism, and Mistreatment at the US-Mexico Border 109 Social S.M. 66, 67 (2014)

68 PEW RESEARCH CENTER, REPUBLICANS PRIORITIZE BORDER SECURITY AS VERY IMPORTANT IMMIGRATION GOAL; DEMOCRATS MORE LIKELY TO VIEW PATH TO LEGAL STATUS AS VERY IMPORTANT (2022), https://www.pewresearch.org/fact-tank/2022/09/08/republicans-and-democrats-have-different-top-priorities-for-u-simmigration-policy/ft_2022-09-08_immigration_02/

69 Id.

70 U.S. CUSTOMS AND BORDER PROTECTION, supra note 59

71 Id.

before the pandemic hit because of the border patrol’s method called “metering”, which limits the number of people who can seek asylum each day at the port of entry. 72 Furthermore, of the 1.6 million immigrants that crossed the border in 2021, 144,834 of them were unaccompanied children, ranging from newborn babies to 17 years old. 73 Unfortunately, the facilities were only able to hold the children and families for 20 days before they released the families back to Mexico. 74 The conditions at the border fall nowhere short of a humanitarian crisis. The number of immigrants entering the country leads to overcrowded detention centers. This results in immigrants going weeks without “basic necessities like access to showers or change of clothes.” 75 The federal government’s facilities are overcrowded, inhumane, and unsanitary. However, states could be the solution to this issue. States and municipalities have the ability to contract both public and private facilities. If the states were able to work with the federal government to correct this error, millions of immigrants would have a more hum ane facility to be detained in. 76 Furthermore, the ability for the state to have more power over these facilities would give the state greater capacity to investigate illegal immigrants and make political decisions based on what they find. 77 That way states are able to determine who is entering their state, determine what programs (if any) they would like to implement to benefit those immigrants, and more easily assess how illegal immigration impacts their state. A dual federalist structure allows states and constituents who are more willing to employ, house, and help immigrants the ability to do so. It ultimately has the potential to solve the issues at the border if the federal and state governments work together.

VI. STATE AND FEDERAL POLICY WORKING TOGETHER

Although constituents in states have varying political ideologies, a dual federalist structure would represent a majority of constituents' ideals. States like California, New York, and Oregon are more liberal and more likely to help immigrants than more conservative states with anti-immigration ideologies like Wyoming, Florida, and Texas. A dual federalist structure with immigration would reflect these states’ views of how they would prefer to address immigration. While the federal government would still set the national guidelines, states would have the ability to pass legislation free of political protest based on what their constituents desire to see. New York recently passed legislation in 2022 that prohibits workplace discrimination against individuals for their undocumented or illegal immigration status. 78 This law reflects federal

72 Id.

73 PEW RESEARCH CENTER, WHAT'S HAPPENING AT THE U.S.-MEXICO BORDER IN 7 CHARTS (2021), https://www.pewresearch.org/fact-tank/2021/11/09/whats-happening-at-the-u-s-mexico-border -in-7-charts/

74 U.S. CUSTOMS AND BORDER PROTECTION, supra note 59

75 John Hudak & Christine Stenglein, How States Can Improve America’s Immigration System, BROOKINGS (2022), https://www.brookings.edu/research/how -states-can-improve-americas-immigration-system.

76 Id.

77 Id.

78 Littler, New York State Provides Protection for Individuals Based on Citizenship and Immigration Status, JD SUPRA (September 10, 2019) https://www.jdsupra.com/legalnews/new -york-state-provides-protection-for-5878144/

legislation under the Immigration and Nationality Act, 8 USC § 1324(b) “which bans employers from discriminatory hiring or termination based on an individual’s cit izenship status.” 79 This law is an example of the federal and state governments working in conjunction with one another to achieve desirable outcomes. 80 However, not all states are immigrant friendly. Hazelton, Pennsylvania passed legislation that bans the housing and employment of illegal immigrants. 81 States that have more conservative ideologies want to represent what their constituents believe is best in political areas including immigration. While there is already a dual federalist structure for immigr ation policy in place, there will be a greater developed system if the federalist system truly emphasizes the right for states to implement policy without as much legal action. Major immigrant receiving nations delegate significant authority over certain a spects of immigration policy to their states, provinces, and cantons in countries like Australia, Germany, Switzerland, and Canada. 82 These countries were ranked by the US News and World Report in 2018 as the top five countries for being the best countries to be an immigrant. 83 These rankings were measured on their immigration policies and economic data. 84 While immigration policy is complex and multifaceted, it comes as no surprise that the top five countries in the world for immigration policies have a du al federalist structure. These successful countries offer their states, provinces, and cantons delegated authority over immigration. As other wealthy nations take a more complex approach and have seen great success in their immigration policy, it is time f or America to adopt a true dual federalist structure and allow the states more political power.

A. Dual Federalist Structure for Immigration Policy

Many states across the nation have overwhelming issues with illegal immigration and have become restless waiting for Congress to enact immigration reform. As immigration is on the rise, southwestern states are feeling the economic and criminal pressures of undocumented individuals.85 Southwestern states have issues with burglary, kidnappings, drug tr afficking, human trafficking, and more at the US Mexico border. 86 The rate of crime and the economy were worsening specifically in 2007, and many states like Arizona and Pennsylvania were attributing these issues to illegal immigration. In response to this , Arizona passed a law which was enacted in 2008, the Legal Arizona Workers Act, that took away business licenses from companies who were hiring illegal immigrants knowingly or unknowingly. 87 Arizona unwillingly spent $2.7 billion in 2009 simply on education, health care, incarceration, and welfare benefits only for

79 Id.

80 Id.

81 Brittney M. Lane, Testing the Bor ders: The Boundaries of State and Local Power to Regulate Illegal Immigration,

39 Pepp. L. Rev. 483, 522 (2012)

82 Schuck, supra note 26, at 67

83 US NEWS AND WORLD REPORT, THE BEST COUNTRIES TO BE AN IMMIGRANT (2018)

https://www.usnews.com/news/best-countries/articles/best-immigrant

84 Id.

85 Lane, supra note 78, at 485-489

86 Id.

87 Id.

illegal immigrants. In order to preserve their economic resources for Arizona citizens, the state later refined the law in 2010 which imposed even harsher sanctions and criminalizes an alien’s failure to “carry proof of legal status and allows state officials to check immigration status of suspected immigrant offenders.” 88 These laws attempted to stretch the boundaries of only the federal government having power over immigration law and solving their statewide concern and consequences of illegal immigration. Many of these laws went to the Supreme Court, in which the Court ruled in favor of Arizona because of De Canas v. Bica, 424 US 351 (1976), which allowed the Court to decide that it was constitutional for the states to independently enact legislation regarding immigration if it was in the states’ best interests and did not conflict with existing federal law. 89 However, the Court further concluded that Arizona and other states only have the right to regulate “certain aspects of immigration” as long as the regulations were associated with “well-defined state interests”. 90 This was the first time that states were given some form of power over immigration that was recognized in the Supreme Court. States are allowed to create laws regarding immigration but are limited to the legal challenge that new policies can only benefit their specific state interests. Further court actions in the 1970s proved that states are allowed to create policy for immigration as long as it addresses a specific need for the state. After years of illegal immigrants entering the Texas border, the state decided to respond in May of 1975 by passing legislation that banned state funding for public schools that housed undocumented students. 91 Illegal immigrants sued the state and the case eventually went in front of the Supreme Court in the famous Plyer v. Doe, 457 US 202 (1982). The Court concluded that undocumented students were protected under the Fourteenth Amendment and Equal Protection Clause, and Texas did not clearly argue that this policy would further their specific state interests. 92 Once again, the Court reaffirmed that states have the right to create state legislation regarding immigration that does not conflict with federal legislation, but it is a limited scope and they must prove that it furthers their personal state interests. States cannot legally create their own definitions of who may or may not enter their borders, and immigrant removal is also not within states constitutional or police powers. 93 States have the power to enact domestic policies that would alleviate their frustrations, but they are still constrained by the federal government’s power. Immigration is evolving and continually becoming more like a dual federalist structure, which is a positive alternative to only the federal government creating legislation. Whether state legislation is a positive or a negative is up to an individual’s perspective, but constituents having a say in what they’d like to see their state enact to protect their interests is what democracy is meant to do.

Currently, one of the difficulties that states face is the lack of resources to implement helpful policies and programs. The federal government has a responsibility to provide states with

88 Id.

89 Lane, supra note 78, at 503-511

90 Id.

91 Lane, supra note 78, at 503-511

92 Plyler v. Doe, 457 US 202 (1982)

93 Lane, supra note 78, at 541

funding to pass immigration policy whether it is to help with enforcement or to fund immigrant friendly programs that help alleviate the financial barriers that immigrants face. The federal government currently allocates $25 billion to US Customs and Border Protection and Immigration and Customs Enforcement (ICE). 94 Furthermore, the federal government allocates $825 million to improved systems to help process refugee applications, reduce the immigrant benefit backlog, and support programs that process citizenship applications. 95 This amount of the federal government’s budget going to immigration is most states’ annual budgets. For example, Utah’s budget for the Fiscal Year 2022 was $26.5 billion. 96 Larger states such as California had $296.9 billion for 2023-2024. 97 States simply do not have the budget to pay for enforcement or programs to expand and help immigrants. With the federal and states working together, states could allocate funds toward improving programs for immigrant populations with the help of the federal government’s resources. It is time that the federal government and states work together to solve immigration inadequacies, and that starts with the federal government providing the necessary financial resources to states to help immigration law progress.

VII. THE FUTURE OF IMMIGRATION IN THE UNITED STATES

As states become more involved with immigration policies, there is a potential for them to expand their rights with immigration implementation and enforcement moving forward. Some scholars have proposed the idea that the federal government should delegate admission powers to the states. Congress is currently issuing 675,000 visas a year, but the reality of that number is higher because certain visas that are issued do not have a cap to them. 98 The actual number is typically closer to one million. Scholars have asked whether the number of visas that are issued each year would be better addressed by the states. The states would then have the discretion for questions like what requirements to impose, how to allocate visas a mong specific groups of individuals, and what types of visas to issue under their jurisdiction. However, as this article has addressed, there would be several constitutional barriers to this idea because it has been implied for hundreds of years that Congress has the plenary power over naturalization. This is why states need to be granted permission by Congress to allocate the visas as needed to immigrants in order to help with the overwhelming amount of paperwork to be done every year by the federal

94 THE WHITE HOUSE, PRESIDENT BIDEN’S BUDGET STRENGTHENS BORDER SECURITY, ENHANCES LEGAL PATHWAYS, AND PROVIDES RESOURCES TO ENFORCE OUR IMMIGRATION LAWS (2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/09/fact-sheet-president-bidens-budgetstrengthens-border-security-enhances-legal-pathways-and-provides-resources-to-enforce-our-immigrationlaws/#:~:text=The%20Budget%20includes%20nearly%20%2425,controlling%20for%20border%20management%2 0amounts.

95 Id.

96 URBAN INSTITUTE, PROJECT UTAH STATE FISCAL BRIEFS (2023), https://www.urban.org/policy-centers/crosscenter-initiatives/state-and-local-finance-initiative/projects/state-fiscal-briefs/utah

97 URBAN INSTITUTE 2023-2024 GOVERNOR’S BUDGET, WELCOME TO CALIFORNIA’S 2023-2024 GOVERNOR’S BUDGET (2023), https://ebudget.ca.gov/budget/2023-24/#/Home

98 Christian Vanderhooft, Delegating Immigration Admission Powers To The States, 89 U. Cin. L. Rev. 910, 916953 (2021)

government. Furthermore, states could have the ability to grant employment visas as well to benefit their individual economy and help immigrants entering the US. 99 Under this proposed system, the federal government would still conduct the background checks and h ave control over the visas allocated to the states. This new system would be ideal because it would give the states more voice in how to address illegal immigration in their individual states, and help the federal government speed up the process for issuing visas. However, the next important question to address is whether the delegation of immigration power is constitutional or not. Professor Peter J. Spiro of Temple Law School has argued that “Dozens of state and local governments have taken formal action, evidently motivated by traditional foreign policy concerns. The notion that the federal government now has, or will any time soon restore a monopoly over US foreign relations is a fiction.” 100 Spiro emphasizes that the need for states to continue to be involved with immigration policy is rising and that is why the government must allow this notion to happen. The Supreme Court agreed with Spiro’s notion in the Arizona decision. The Court upheld that (1) “Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision”; (2) that state law may be displaced by “a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject’”; and (3) that state laws “are preempted when they conflict with federal law.” 101 However, if Congress granted states delegated authority to issue federal visas that are already created, that delegation would not run into any of these issues. Furthermore, in the decision of Arizona, Justice Scalia emphasized that Congress has “no obligation to [establish a uniform Rule of Naturalization under Article I, Section 8, Clause 4] and the Framers surely expected state law to continue in full force… until Congress acted.” 102 The Justices agreed that states have the power to create laws and be in volved with policies until the federal government says otherwise. Therefore, if Congress delegates this power to the states and allows them to implement this sort of visa system and allow greater privileges for admission within their state for immigrants, that would indeed be constitutional. There could be a rise in immigration participation for states in the future if Congress ever made the decision to delegate their power and receive help from the individual states. Congress would continue to have plenary power over who may or may not enter the country, however it would be up to the states to help with the groundwork of immigration and feel more involved in the systems that help immigrants.

Scholars have also debated whether states should be more involved with enforcing federal immigration policies. As mentioned earlier in the article, some scholars believe that increasing law enforcement from state and local municipalities can have negative effects for Mexican Americans and lead to racial profiling. 103 However, on the other side of the debate,

some scholars believe that increasing enforcement will be a positive opportunity for states to be involved. Former President Donald Trump issued an executive order known as Executive Order 13767 titled Border Security and Immigration Enforcement Improvements (2017) that sought to enact “Federal-State partnerships to enforce Federal immigration priorities, as well as State monitoring and detention programs.” 104 This executive order gave the state and local law enforcement more power to act as agents in aiding illegal immigration. 105 Most Republican states welcomed this order with open arms as they have wanted harsher illegal immigration strategies and increased law enforcement. However, states that are pro -immigration and more Democratic have also had the right to protest this action and have chosen not to implement the executive order.106 These jurisdictions that chose not to implement Trump’s order are known as sanctuary jurisdictions.107 These states have also promoted “initiatives to assist with the integration of newcomers, irrespective of their status.” 108 Increased power over immigration policy will allow individual states to decide how they would like to handle enforcement measures of immigration and how their courts would handle this issue at a state level. This increased enforcement power will more like ly reflect the citizens and their desires when it comes to immigration at a lower level. The future of immigration reform could potentially allow the states to hold much more power and be a true dual federalist structure.

VIII. CONCLUSION

The federal governm ent has exercised plenary power over immigration policy for hundreds of years because of the implied powers of the Constitution. The Supreme Court has upheld this implied authority as Chae Chan Ping v. United States clarified that Congress has the plenary power over deciding who may or may not enter the country for any given reason. However, the Constitution and Congress had never addressed what role the states would play in immigration policy until the De Canas decision in 1976. This case clarified that states have the authority to create immigration policy if it does not interfere with Congress’ federal right of who may or may not enter the United States. The decision also emphasized that states may only pass legislation if it is justifiably in the state’s best interest. While the federal government has had a difficult past with immigration and continues to struggle with this political topic today, states could create policies that best fit their constituents’ goals and help the national immigration problem. Reform is necessary, especially at the border states, but it is best to implement reform with state legislatures more involved with implementing new policies. There are various ideologies across the nation with more liberal states having a different perspective on immigration than conservative states. The dual federalist system is beneficial because it gives the

104 DEBORAH M. WEISSMAN ET. AL., The Politics Of Immigrant Rights: Between Political Geography And Transnational Interventions, 2018 Mich. St. L. Rev. 117, 127 (2018)

105 Id.

106 Id.

107 Id.

108 Id.

states more freedom to decide what works for their constituents’ ideals and which policies regarding immigration best fit the individual state’s economic and safety needs. Arizona and California have two different ideologies and now have the ability to create policies that would address the situation as the legislatures view fit. Dual federalism has been a s uccess with other political topics, and this method would fit best to create the desperately needed reform at the USMexico border.

States, especially those most affected by immigration, deserve the ability to legislate this issue as appropriate. Strength ening the state’s ability to legislate would help curb the immigration crisis, improve the safety of Americans, and ameliorate states’ economic resource and safety issues. Furthermore, states having more control over who may or may not enter the country would alleviate the federal government’s burden of issuing over one million visas a year. The states could distribute those visas as appropriate and even implement their own economic visas. States would also have more of a say with how they would like to app roach law enforcement and whether they would increase or decrease police interactions. While states having the right to implement policies regarding immigration has severe pros and cons, the notion that states are involved is important for democracy and representation. The dual federalist structure is the only way to properly address immigration policy moving forward. Ultimately, the federal government has not handled the national immigration process well and it is becoming a humanitarian crisis. There are hundreds of thousands of children and families that are in search of a better life. There are American citizens that feel unsafe in their hometowns because the federal government is having a difficult time creating reform because this issue is so complex. The state legislatures are capable of handling a lot of the groundwork for the federal government which will alleviate a lot of the pressures Congress feels when it comes to immigration.

As President and Co-Founder of Chapman University Undergraduate Law Review, I am proud to present our second completed volume. This journal is the culmination of two semesters of hard work and dedication from our team of writers, editors, and our executive board, and I am extremely proud of how it has turned out. This publication would not have been possible without the work of every member of Chapman Undergraduate Law Review.

In particular, I want to thank our Editor-in-Chief, Cynthia Le. Cynthia’s hard work and tireless dedication to her position have been evident over the course of this school year. This journal would not have been possible without her commitment to this organization. It has been so wonderful to work with her and I am extremely grateful for all the hours she put into making this journal a success.

I also want to thank our executive board; you have all put in so much work to this organization and you should feel extremely proud of yourselves. To our team of editors, thank you, this journal would not be possible without you. Finally, to our writers, congratulations on a job well done. Your work is incredible, and we are proud to publish it.

It has been an incredible honor being a part of Chapman Undergraduate Law Review for the last two years. I have seen this organization grow and evolve during my time in it, and I am incredibly grateful for the opportunity to serve as its President for the last year. I cannot wait to see what is ahead as I pass the torch to my successor. I am confident that Chapman University Undergraduate Law Review will continue to flourish on Chapman’s campus.

I thank you all for reading and supporting the second volume of our journal.

Sincerely,

Nicole Drew President & Co-Founder of Chapman University Undergraduate Law Review 2022-23