P H OTO : SA M E E R K H A N / FOTO B U D DY
C A M PA I G N U P DAT E
We can’t radically change a society overnight, but that should be our goal” DOROTHY ROBERTS
The Thirteenth, Fourteenth, and Fifteenth amendments ended slavery and extended citizenship to African Americans. Roberts said the Constitution can therefore be seen as an abolitionist document with the addition of those amendments. But, by 1900, a campaign of white supremacist terror, laws, and policies effectively nullified the Amendments and the vestiges of slavery and inequality persisted, she said, in contradiction of the Constitution and with an assist from the courts. “I think it’s important to understand and to highlight how the Court continues to issue anti-abolitionist decisions and opinions that are not in line with the goals of the Thirteenth, Fourteenth, and Fifteenth amendments,” Roberts said. “Constitutional values are important even if they’re not being implemented by the Court, because they’re a way of educating the public about what justice means, about how our society should be organized to promote freedom and equality.” The editors of the Harvard Law Review have been asking prominent legal scholars to opine on the previous term of the Supreme Court since 1951. Over the years, foreword contributors have included legal luminaries such as Watergate special prosecutor Archibald Cox, renowned economist and judge Richard Posner, and constitutional law scholar Laurence Tribe. Penn Law Professor Paul Mishkin contributed a foreword 55 years ago, one year after the Civil Rights Act outlawed racial discrimination. Roberts described Abolition Constitutionalism in this year’s Owen J. Roberts Memorial Lecture on Constitutional Law. In an interview, she said she got interested in the subject because no one had written a substantive analysis on prison abolition and constitutional law. In her estimation, abolition theory and activism is the most exciting legal development that deserves more attention from constitutional law scholars. Many prison abolitionists, she said, have given up on the courts. So, Roberts acknowledged, it will take concerted activism to overturn the status quo and truly enforce the law as intended in the amendments. As Roberts makes clear in the article, abolitionists must look to “ordinary people and lawyers, activists and formerly incarcerated people … to abolish prisons.” Roberts said the prison system reflects an inequality that has endured from the post-
Reconstruction period — when white Southerners incarcerated black people for simply being in the street and leased them to companies that exploited their labor — through the Jim Crow era to the present day, when the United States has the largest prison population on Earth and the majority of inmates are black and brown people. The prison system, Roberts said, “is designed to punish and contain entire communities who are suffering as a result of profound economic, social and political inequality.” In her foreword, she explores how prison abolitionists can instrumentally use the Reconstruction Amendments to achieve nonreformist abolitionist reforms that would eradicate or shrink discrete components of the prison system, such as stopping prison expansion; ending police stop-and-frisk practices; eliminating money bail requirements; repealing harsh mandatory minimums; and decriminalizing drug possession and other nonviolent conduct. She also discusses efforts to mitigate the suffering of incarcerated people and create the conditions needed for a society without prisons. Ultimately, Roberts hopes for a new constitutionalism to guide and govern the radically different society abolitionists are creating. “We can’t radically change a society overnight, but that should be our goal,” Roberts said. Roberts connects her prison abolition scholarship to her work on reproductive justice, in which she said marginalized people are also victims of discrimination. Coincidentally, Roberts’ first major piece of scholarship on the subject was published in the Harvard Law Review back in 1991. And that led to her book titled Killing the Black Body — Race, Reproduction & the Meaning of Liberty. Roberts teaches an exceedingly popular course on Reproductive Rights and Justice. There were 95 students in her class during the spring semester. The class offers a sweeping overview of reproductive jurisprudence and the political, economic and social forces that shape legal decision-making. She covers sterilization abuse, abortion, parental rights, foster care, adoption, and reproductive assistive technology. The class draws such interest, Roberts said, because students want to go beyond legal doctrine and understand why and how court decisions are made. 51