In 2011, Ronald Dworkin wrote in The New York Review , https://www.nybooks.com/articles/2011/05/26/courts-embarrassingly-bad-decisions/ about the intellectual dishonesty of several recent decisions by Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito.   Dworkin is a major figure in American Jurisprudence, unlike most of the Supreme Court Justices, whose backgrounds are quite ordinary. According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.   After his death, the Harvard legal scholar Cass Sunstein said Dworkin was "one of the most important legal philosophers of the last 100 years.”

Dworkin found it unacceptable for a judge to decide a case based on an agenda rather than the issues and law in a case:

So if a justice is disposed to advance [certain] goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.

Unfortunately, today many judges disguise rather than exhibit their actual motivating convictions.  It is extremely sad when such a judge sits on the US Supreme Court.

In an article titled “Elena Kagan Has Had Enough of Brett Kavanaugh’s Judicial ‘Scorekeeping’” by Mark Joseph Stern, https://slate.com/news-and-politics/2021/05/edwards-vannoy-kagan-kavanaugh-scorekeeping.html Brett Kavanaugh’s bad arguments were laid bare as follows:

Last year, the Supreme Court issued a landmark decision in Ramos v. Louisiana, prohibiting nonunanimous convictions of criminal defendants. Under the Constitution, the court declared, a split jury verdict is “no verdict at all.” On Monday, however, the court walked back this declaration. In Edwards v. Vannoy, the conservative majority held that Ramos does not apply retroactively—that is, to defendants who have already been convicted by split juries. The court then took the extraordinary step of overturning precedent that had allowed retroactive application of new decisions. No party asked the Supreme Court to reverse this precedent; the question was not briefed or argued. But Justice Brett Kavanaugh’s majority opinion reached out and grabbed it anyway, slamming the courthouse door on convicted defendants seeking the benefit of a new Supreme Court decision.

Kavanaugh’s overreach drew a sharp dissent from Justice Elena Kagan.  The justice also responded to Kavanaugh’s charge that she is a hypocrite, criticizing his cynical view of “judging as scorekeeping.” It appears that Kagan is losing patience with Kavanaugh’s efforts to “insulate” himself from criticism with rhetoric that obfuscates the cruel consequences of his decisions.

Since joining the bench, Kavanaugh has sought to frame himself as an honest broker who empathizes with the parties he rules against. In Bostock v. Clayton County, he spent 27 pages explaining why the Civil Rights Act does not protect LGBTQ employees but closed by praising the “exhibited extraordinary vision, tenacity, and grit” of gay Americans. In the peace cross case, Kavanaugh voted to uphold a huge cross on public land while expressing his “deep respect for the plaintiffs’ sincere objections,” as well as their “distress and alienation.” In the DACA case, Kavanaugh empathized with Dreamers who “live, go to school, and work here with uncertainty about their futures,” then voted to let them be deported. And last month, in Jones v. Mississippi, he restored juvenile life without parole while highlighting “moral and policy arguments” for the early release of juvenile defendants that can be presented “to the state officials authorized to act on them.”

Justice Kagan says Kavanaugh is being intellectually dishonest.

Kagan’s dissent in Edwards  explains Kavanaugh is trying to “bank capital” by flaunting his empathy, as if he can mitigate the unjust effects of his most conservative opinions. His deep concern for the losing party should offset the actual ramifications of his actions. When he supports a liberal outcome, even better: He can defend himself against future charges of callousness by pointing to his past votes. In doing so, Kavanaugh seeks to “insulate” himself from criticism when he writes a decision like Edwards, which will keep people locked up on the basis of “no verdict at all.”

In Edwards, Justice Kagan’s dissent explained how Kavanaugh’s decision was an attack on precedent. “The majority gives only the sketchiest of reasons for reversing Teague’s watershed exception,” Kagan wrote. “Seldom has this court so casually, so off-handedly, tossed aside precedent.” And it did so even though “no one here asked us to.” The result is fundamentally unfair: Thousands of people will remain behind bars, some for life, because they happened to exhaust their direct appeals before Ramos came down.

Kavanaugh, stung by the criticism, responded by accusing Kagan of posturing. “It is of course fair for a dissent to vigorously critique the court’s analysis,” he scolded. “But it is another thing altogether to dissent in Ramos and then to turn around and impugn today’s majority for supposedly shortchanging criminal defendants.” Kavanaugh wrote that “criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if Justice Kagan’s dissenting view had prevailed in Ramos.”

In her final footnote, Kagan responded to this charge. Kavanaugh’s claim that he is “properly immune from criticism” because of Kagan’s position in Ramos “is surprising,” she wrote. She went on:

It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us. 

Like many things related to law enforcement, myths become the foundation for action. 

Law enforcement officers are taught that routine traffic stops pose extreme danger to their own lives.  Chelsea Whitaker, The Routine Traffic Stop, LAWOFFICER (Nov. 21, 2016) (“There isn’t a more dangerous aspect of policing than traffic stops.”), https://www.lawofficer.com/the-routine-traffic-stop/; Amaury Murgado, How to Approach Traffic Stops, POLICE MAG. (Nov. 26, 2012), https://www.policemag.com/340864/how-to-approach-traffic-stops (“A traffic stop generally has two threat levels [for a police officer]; you are either at risk or at high risk.”)  A major problem with such training is that the myth is self-perpetuating:  cops are taught traffic stops are more dangerous, so traffic stops do become more dangerous. 

But in 2020, there were 120 killings of members of the public in traffic stops by police.  Mapping police violence (April 18, 2021), https://mappingpoliceviolence.org/  So the question becomes: who are traffic stops dangerous to?

After review of a comprehensive dataset of thousands of traffic stops that resulted in violence against officers across more than 200 law enforcement agencies in Florida over a 10-year period, it was found that violence against officers was rare and that incidents that do involve violence are typically low risk and do not involve weapons.  Under a conservative estimate, the rate for a felonious killing of an officer during a routine traffic stop was only 1 in every 6 .5 million stops, the rate for an assault resulting in serious injury to an officer was only 1 in every 361,111 stops, and the rate for an assault against officers (whether it results in injury or not) was only 1 in every 6,959 stops.  Jordan Blair Woods, Policing, Danger Narratives, and Routine Traffic Stops (Michigan Law Review 2019), https://michiganlawreview.org/wp-content/uploads/2019/03/117MichLRev635_Woods.pdf

Despite this type of data, courts justify cutting back the constitutional rights of the public when in a vehicle.  Courts will justify the evisceration of constitutional rights based on data from Law Enforcement Officers Killed and Assaulted (LEOKA) program from the FBI which indicates traffic stops by police are dangerous to the police.  See, Maryland v. Wilson, 519 U.S. 408, 413 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam); United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (expressly rejecting the argument that traffic violations necessarily involve less danger to officers than other types of confrontations); United States v. Rochin, 662 F.3d 1272, 1273 (10th Cir. 2011) (Gorsuch, J.) (citing 2010 LEOKA statistics); United States v. Holmes, 385 F.3d 786, 791 (D.C. Cir. 2004) (Roberts, J.) (citing 2002 LEOKA statistics); Hiibel v. Sixth Judicial Dist. Ct. ex rel . County of Humboldt, 59 P.3d 1201, 1205 n.20 (Nev. 2002) (citing 2000 LEOKA statistics), aff’d, 542 U.S. 177 (2004); State v. Sloane, 939 A.2d 796, 802 (N.J. 2008) (citing 2005 LEOKA statistics). 

Courts refuse to recognize that a conclusion is only as good as the data cited to support the conclusion.  Citing LEOKA statistics to support the idea that traffic stops by police are dangerous to the police have failed to closely examine the LEOKA statistics.  As explained by Professor Woods, the LEOKA statistics are wildly overinclusive including routine traffic stops, criminal enforcement stops, and felony vehicle stops for non-traffic-based offenses. This overinclusive classification makes it impossible to tell how many cases involve vehicle stops related to traffic enforcement, criminal enforcement, or both.  Jordan Blair Woods at 647. 
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This over inclusiveness equates a police chase of an armed bank robber leading to the traffic stop the same as a police officer’s stop of a black man with an air freshner in his car.  Both of these cases are lumped together under the “traffic pursuits and stops” category, even though a traffic violation was only central in the second case. 
It is more accurate to say that “[t]he felony stop is one of the most-common high-risk situations patrol officers find themselves in”.  See, Duane Wolfe, 5 Felony Traffic Stop Tactical Tips for Police Officers, POLICEONE.COM: THE WARRIOR’S PATH (Apr. 20, 2015), https://www.police1.com/police-products/vehicles/articles/5-felony-traffic-stop-tactical-tips-for-police-officers-TzW9vQ2b8xi8Ywqi/
 

Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content.  In other words, ignorance of law excuses no one.  The presumption is that the public knows all the laws, both state and federal, and a defense of ignorance is not allowed.  See, Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604 (1991) Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240 (1957)

For instance, say you have terrible allergies which cause nasty itchy eyes and throat to where it feels you cannot take a breath. The legislature on April 1, 2021 bans anyone with a meth-related conviction from possessing pseudoephedrine, a common decongestant medicine (and meth ingredient). One month after the effective date, you were charged with violating the law after purchasing allergy medicine containing the substance. You file a motion to dismiss on grounds that the statute was unconstitutional. Trial court denies your motion and you was convicted at trial.  That decision was upheld by the North Carolina Supreme Court.  See, State v. Miller, 800 S.E.2d 400 (N.C. 2017).  The Miller court specifically rejected Miller’s argument that the legislature had criminalized the otherwise innocent act of possessing a pseudoephedrine product for a subset of felons to which defendant belonged despite the fact that the purchase of such substances by individuals like defendant had been entirely lawful little more than a month earlier and that the State's failure to provide adequate notice of this change in law constituted a federal due process violation.  Citing to prior decisions, the North Carolina Supreme Court held that “The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.”

Sounds pretty clear, right?  A rule that is deeply rooted in the American legal system should apply to everybody , right?  Nope.  Courts find cops are above deeply rooted rules in the American legal system.  In Heien v. North Carolina, 574 U.S. 54 (2014), (on appeal from a decision in North Carolina)and State v. Houghton, 2015 WI 79 (police officer believed any object dangling from a rear-view mirror automatically violated the state’s law on obstructing a driver’s view), courts have found that a police officer's reasonable mistake of law can provide the individualized suspicion required by the Fourth Amendment to the United States Constitution to justify a traffic stop. 

Translation? 

When it comes time for cops to enforce the law, courts have determined that if the cops ignorance of the law is reasonable, the cops actions will be upheld on judicial review.  See, Police mistakes of law, 61 Emory L.J. 69 (2011), (even when you are acting legally, cops can stop you) https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1276&context=elj  It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). 

Courts have now approved a citizen’s oppression not by lawlessness but by the law.

Politics are at the center of the story of Jesus. His historical life ended with a political execution. Crucifixion was used by Rome for those who systematically rejected imperial authority.  This rejection of authority chronically usually came from defiant slaves and subversives who were increasingly challenging the rule of the Roman Empire.  Rome typically chose indigenous collaborators from the wealthy class who saw it in their personal interest to support power when it advantaged them.  In first-century Roman Palestine the wealthy oligarchy (meaning ‘the ruling few’) was represented by the Sadducees, sometimes referred to in the gospels as “the leaders of the people,” or “the chief priests and the elders.”

Today the Sadducees are found in various conservative groups like the Manhattan Institute.  The Manhattan Institute for Policy Research is a conservative 501 non-profit American think tank focused on domestic policy and urban affairs.  In its March 18, 2021 blog, Josh Hammer, a Newsweek opinion editor and a research fellow at the Edmund Burke Foundation, writes “Homicides in the United States increased in 2020 by over 30 percent, on a year-over-year basis. Gun assaults and aggravated assaults also spiked, leading the National Commission on COVID-19 and Criminal Justice to deem the crime surge of 2020 a ‘large and troubling increase’ with ‘no modern precedent. … Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law.’”

This is the Nixonian scare tactic calling for “law and order” to whip up public fear about rising crime rates to justify attacks on civil liberties and our constitutional rights.  Both the concept and the exact phrase "Law and order" became a powerful political theme in the United States during the late 1960s. The leading proponents were two Republicans, the governor of California Ronald Reagan and presidential candidate Richard Nixon. Nixon targeted, among others, working class White ethnics in northern cities to turn against the Democratic Party, blaming it for being soft on crime and rioters.  In reality, the Nixonian cry for law and order was a racial attack on African Americans.  “Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People,” Equal Justice Initiative (2016), https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/

Like Nixon, Hammer cites to a lop-sided view of the criminal system.  I previously wrote how the “lock them up and throw away the key” mentality does not work.  “CRIME IS NOT REDUCED BY PUTTING A MASSIVE AMOUNT OF PEOPLE IN PRISON,” http://www.paulksicinskilaw.com/blog/-crime-is-not-reduced-by-putting-a-massive-amount-of-people-in-prison  In his article, Hammer gives no evidence for idea that there is a causal link between crime rates and incarceration rate.  That’s because the evidence is to the contrary.  “ ‘Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should reexamine policies regarding mandatory prison sentences and long sentences. Policy makers should also take steps to improve the experience of incarcerated men and women and reduce unnecessary harm to their families and their communities.’”  Id.

Finally, as reported by the Pew Center “[b]oth the FBI and [Bureau of Justice Statistics] data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation.”  Pew Research Center, “What the data says (and doesn’t say) about crime in the United States” (2020). https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/

Before conservatives “publicly advocate anew the time-tested and common-sense notion” of prison as a solution to the problem of crime, they should tell the public everything, not just what scares the public,

When sentencing someone who has done wrong, judges are very fond of saying words like, “I have to sentence you to this long sentence to hold you accountable for what you have done.”

Apparently judges think it is important to hold someone accountable for their misdeeds.   Similarly, parents teach their children that that the child is being punished as a way for them to learn to not do something again.  In other words, a parent holds even a child accountable for when they do something wrong.

So why do we hesitate to treat the police differently than we treat a child?

We know that taxpayers pay hundreds of millions of dollars each year in the form of settlements for police brutality and other misconduct. The nation’s three biggest cities account for over 80 percent of those costs. But the data on payouts to victims and their families is so spotty and inconsistent—some cities don’t even agree on what constitutes “misconduct”—we can’t tell whether the payments change the bad behavior that prompts excessive force or wrongful death cases in the first place.  “Police misconduct has cost Milwaukee taxpayers at least $17.5 million in legal settlements since 2015, forcing the city to borrow money to make the payouts amid an ever-tightening budget.  That amount jumps to at least $21.4 million when interest paid on the borrowing and fees paid to outside attorneys are factored in.”  Kevin Crowe and Ashley Luthern, "The cost of police misconduct in Milwaukee: $21 million – and growing"  Milwaukee Journal Sentinel (2017), https://www.jsonline.com/story/news/investigations/2017/10/25/cost-police-misconduct-milwaukee-21-million-and-growing/792428001/.  By 2020, that amount erupted to $40 million.  Police Misconduct Cases Costly For Milwaukee (Seehafer News 2020), https://www.seehafernews.com/2020/11/11/police-misconduct-cases-costly-for-milwaukee/. 

Incidentally, when many cities, including Milwaukee, exceed their budgets for settlements and judgments related to police misconduct, they utilize taxpayer-funded bonds with high interest rates to cover the costs of lawsuits. This creates an avenue for banks and investors to profit from police brutality.  Edgar Mendez, Banks earn millions from bonds issued to settle MPD brutality cases, new report finds (Milwaukee Neighborhood News Service June 19, 2018), https://milwaukeenns.org/2018/06/19/banks-earn-millions-from-bonds-issued-to-settle-mpd-brutality-cases-new-report-finds/. 

“As the country has witnessed episode after episode of police abuse, holding police officers accountable for misconduct has become an urgent issue. But despite increased attention, it’s still rare for police officers to face criminal prosecution. That leaves civil lawsuits as victims’ primary route for seeking legal redress and financial compensation when a police encounter goes wrong. The resulting settlements can be expensive for the city, which is generally on the hook for the payouts (meaning ultimately, most are subsidized by taxpayers), and those costs can encourage cities to make broader changes.”  AMELIA THOMSON-DEVAUX, LAURA BRONNER and DAMINI SHARMA, "Police Misconduct Costs Cities Millions Every Year. But That’s Where The Accountability Ends.(The Marshall Project 2021), https://www.themarshallproject.org/2021/02/22/police-misconduct-costs-cities-millions-every-year-but-that-s-where-the-accountability-ends.

We should not accept the false choice of either having a police force or not having a police force.  The reality of today’s society is that a police force is needed.  But there are several commonsense reforms that state and local leaders should pursue to reduce police brutality while protecting the thousands of honest law enforcement officials who risk their lives every day for their fellow citizens.  “STATE SOLUTIONS THAT ADDRESS POLICE REFORM AND ACCOUNTABILITY,” State Policy Network (2020), https://spn.org/blog/state-solutions-that-address-police-reform-and-accountability/?gclid=Cj0KCQiA-OeBBhDiARIsADyBcE554-bsO0PfQ4RzSLp2Kjiyqst1_iFR2e9zl3FQDrh3k7hQY31y2R0aAr7uEALw_wcB.

It is time to hold the police accountable for their mistakes, and not just from the taxpayer’s pocketbook.   We need to quit accepting the fear-mongering that holding police accountable will increase crime.   Police officers are the public officials society has authorized, even obliged, to use force. Ensuring that police officers use that warrant equitably, legally, and economically on behalf of citizens is as basic as discipling your child to make sure the child learns a lesson.

We live our lives by a couple of fundamental concepts.  One fundamental concept is make the punishment fit the crime.  In Wisconsin, we have not endorsed government sanctioned killing by barring the death penalty.  Simply put, in Wisconsin a majority believe you cannot turn a bad act, like killing someone, into a good act by killing again.  After all, if Justice Brandies was right in Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). that “our government is the potent, the omnipresent, teacher,” when the government teaches that a life does not have intrinsic value it approves of killing.   Your government gets to decide some lives just don’t matter so a person needs to be killed.  Of course, history has taught us, whether it be Stalin or Hitler, the actual practice of a government’s decision to kill certain people ends up being used against the politically powerless.

With that in mind, we need to realize that as of February 2021, COVID-19 infects half of Wisconsin inmates, five times the overall state rate.  Vanessa Swales, ‘He shouldn’t have had to die’: COVID-19 infects half of Wisconsin inmates, five times the overall state rate, Wisconsin Watch (February 13, 2021), https://wisconsinwatch.org/2021/02/covid-19-infects-wisconsin-inmates/?mc_cid=5ec3227325&mc_eid=4a5b451b1f  Ms. Swales mentions Calvin Johnson,  a 52-year-old who lived with high blood pressure and asthma and feared a COVID-19 outbreak at overcrowded Prairie du Chien Correctional Facility would kill him. He had been convicted of armed robbery in 2016, an offense which Wisconsin says is not supposed to have a death penalty. 

In October 2020, he asked a judge to modify his 13-year sentence due to the pandemic for health reasons.  Johnson explained to a court that “I was given 13 years for my crime. I was not given a death sentence . . . . I feel that the precautions the Department of Corrections has put into place to stop the spread of (COVID-19) are no more than a facade and my health, safety, and life are at risk here.”

About a week later, finding “no legal basis” to change Johnson’s sentence due to the pandemic, a judge wrote, “While the court recognizes the potential threat of COVID-19 to the inmate population, it also recognizes that the institution has a legal obligation to take the necessary steps to keep inmates safe and healthy.”  https://wisconsinwatch.org/wp-content/uploads/2021/02/Childs-order.pdf

 Johnson died of COVID-19 the next month.  The last thing he said was, ‘I can’t take this shit anymore, I can’t breathe.’ ”  The cause: complications from COVID-19, his autopsy showed.

Reporter Vanessa Swales explains that:

The coronavirus has run rampant across Wisconsin’s state prison system, infecting at least 2,153 staff members at adult institutions who self-reported test results and 10,786 inmates throughout the pandemic — more than half of the current population. The state has detected infections among inmates at a rate more than five times higher than in the general population. The outbreaks have killed at least 25 inmates, according to DOC data. John Beard, an agency spokesman, declined to say whether any prison staff had died of the virus, citing medical privacy considerations.

Ms. Swales continues:

Wisconsin was a laggard in ramping up testing for inmates, meaning its data likely undercounts infections from the early months of the pandemic.  Many of Wisconsin’s aging prisons are poorly designed to keep viruses from spreading. Inmates in some facilities sleep in barrack-like arrangements and cells are cramped. Inmates share toilets, showers and sinks. Prisoners say air typically flows poorly through the facilities — conditions common in prisons nationwide that allow aerosols to remain in the air and circulate throughout the closed environment, according to a National Academies of Sciences, Engineering, and Medicine report that calls for decarceration to limit COVID-19 in prisons.

“It’s not that this virus is behaving differently in correctional systems,” said Dr. Lisa Puglisi, an assistant professor at Yale School of Medicine and expert in post-incarceration care. “It is that the (correctional) systems can’t handle the virus.”

In other words, an overcrowded prison is an overcrowded prison and until you take steps to deal with overcrowding, bandaid solutions do not help.

For instance Prince Rashada, a 52-year-old inmate at Fox Lake Correctional Institution, was among seven   inmates at three prisons who told Wisconsin Watch that soap and sanitizer remained hard to access — or that sanitation was broadly lacking. He was also among eight inmates at five prisons who said infected inmates were not always isolated from others. “The fact remains that they put our lives at risk,” Rashada, who reports having sickle cell trait and other conditions that might make him more vulnerable to COVID-19, said in a phone interview. “I fear for my life, and I feel I’m going to die in prison. I’m having nightmares that I’m going to die in here.”
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It is time for Wisconsin to make the punishment fit the crime.  Wisconsin needs to stop killing people by prison overcrowding.

The words are sweeping as they are majestic:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” 

 The Declaration of Independence tells citizens their right of citizenship is endowed by the Creator.  It is not dependent on any government declaration.

The Supreme Court says not true.

The Supreme Court’s role in defining American citizenship
By Gabriel Chin on Jan 27, 2021 at 10:23 am

The following is a series of questions posed by Professor Gabriel “Jack” Chin, University of California, Davis School of Law, to Professor Amanda Frost, American University Washington College of Law, on Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Frost is an expert in constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. On Thursday, Jan. 28, at 8 p.m. EST, Politics & Prose will host a virtual book launch. For more info and to register for that event, click here.
* * *
Can you start by describing the book in a few sentences, and what motivated you to write it?

The book describes the events surrounding the legal battles to safeguard citizenship. Over the past two centuries, the government tried, and sometimes succeeded, in revoking citizenship from millions, including disfavored racial and ethnic groups, women who married noncitizens, imprisoned Japanese Americans during World War II, as well as political activists and labor leaders. At times, the Supreme Court defended citizenship, but at others it acquiesced or even led the way in declaring that groups or individuals were no longer entitled to the rights and privileges of U.S. citizenship.

I wrote this book in part because this history is not well known, and I wanted to share this knowledge with a wider audience. The book is a legal history, but it is told primarily through the stories of those who lost their citizenship, using their own words whenever possible. These people were remarkable, and one of my goals was to write an accessible book in order to share their citizenship battles with a broader audience.
 
Those who lose their citizenship often turn to the courts for relief, but as you explain, the Supreme Court has not always protected citizenship. Why has the court protected some individuals from losing citizenship even as it refused to protect others?

Supreme Court decisions often reflect their historical moment. When the political branches choose to revoke citizenship, they do so from those viewed as “un-American” — whether because of their race, ethnicity, speech or even their choice of marriage partner or reading material. Like elected politicians (and the rest of us), the justices are influenced by the public’s perceptions of who is a “real” American entitled to the rights of citizenship, and who is not.

When the court decided Dred Scott v. Sandford in 1857, the nation was debating whether slavery could be reconciled with the Declaration of Independence’s founding principle of equality. Chief Justice Roger Taney thought he had solved that problem when he declared that no Black person, slave or free, could claim the “rights and privileges of citizenship” — in other words, that all Blacks were outside of the social compact. As the dissent pointed out, to reach that conclusion he had to ignore historical precedent supporting Black citizenship, including the fact that some Black residents of the United States had the right to vote, and some had even voted to ratify the Constitution that Taney thought denied them citizenship. But Taney and a majority of the justices could not see beyond their deep-seated assumptions about race and equality.

At other times, though, the court protected citizenship from the political branches’ efforts to take it away, even when it was not politically popular to do so. In its 1967 decision in Afroyim v. Rusk, the court put a stop to the government’s Cold War denaturalization campaign, declaring: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”
 
Was there a Supreme Court decision regarding citizenship stripping that surprised you?
I was pretty taken aback by Mackenzie v. Hare, the 1915 decision in which the court unanimously upheld a federal law revoking U.S. citizenship from American women who married noncitizens.

The story behind that case is almost too good to be true. The plaintiff, Ethel Mackenzie, was a well-known suffragist who had successfully fought for the right to vote in California. But when she tried to vote in the next election, she was barred because she had married a Scotsman. Under the Expatriation Act of 1907, American women who married noncitizens automatically lost their citizenship. Mackenzie challenged the law in the Supreme Court, but none of the (male) justices could understand why it would be important for women to maintain independent citizenship.
​
The happy ending to the story is that two years after the 19th Amendment guaranteed women the right to vote in 1920, the Expatriation Act was partially repealed — though it was not eliminated entirely until 1931. And the credit for getting rid of it goes in part to the newly elected women in Congress.
 
You argue that citizenship stripping has “served as a proxy for overt discrimination.” Can you elaborate on what you mean by that, and how citizenship stripping fits in with more familiar forms of discrimination?
Citizenship stripping has been used to discriminate in ways otherwise prohibited by law. The Supreme Court has held that the right to vote, serve on a jury, own property, criticize the government, work in a variety of professions and remain in the United States cannot be denied on the basis of race, religion, gender, speech and other protected grounds. But, as the court explained in Mathews v. Diaz in 1976, it is legally permissible to discriminate against noncitizens in a variety of ways. I argue that at times the government has taken advantage of that distinction, using access to citizenship as a facially neutral means of accomplishing unconstitutional goals.
 
Is there a Supreme Court justice whose vote in a citizenship case you view as particularly significant?
I was struck by Justice Felix Frankfurter’s 1944 opinion for the court reversing the denaturalization of Carl Wilhelm Baumgartner, a German immigrant who had become a naturalized U.S. citizen in 1932.
Baumgartner supported the Nazis, made anti-Semitic statements and declared publicly that “he would be glad to live under the regime of Hitler.” Frankfurter was the court’s only Jewish member, and the case was decided on June 12, 1944 — just a week after D-Day, at a time when Nazi Germany still posed a very real threat to the world. Nonetheless, Frankfurter wrote that U.S. citizenship came with the “freedom to speak foolishly” without fear of expulsion for doing so. By authoring the opinion, Frankfurter drove home his point that citizenship could not be lost even for expressing abhorrent speech and beliefs.
 
Access to law and to lawyers has been essential for many litigants, especially the Chinese at the turn of the 20th century, and imprisoned Japanese Americans during World War II. How did these disempowered groups get access to the judicial system?
Chinese immigrants in the United States pooled their resources to hire high-profile, establishment lawyers, who filed thousands of cases on their behalf — a massive pro-bono effort comparable to that of the NAACP during the civil rights movement in the 20th century. In fact, the Chinese should get more credit for pioneering a legal strategy that is still used today.
ACLU lawyer Wayne Collins was dogged and passionate in fighting to restore the citizenship of the nearly 6,000 imprisoned Japanese Americans who had been coerced into renouncing their citizenship. After 15 years of litigation, the government finally admitted its errors and restored their citizenship. Collins is proof of the difference one lawyer can make.
 
How has race affected the Supreme Court’s citizenship decisions?
Not surprisingly, race plays a big role in this story all the way through.
Citizenship stripping was often intertwined with questions about race, membership and political power. Dred Scott’s declaration that Blacks could not be citizens epitomized the view that the United States was a white nation. The 14th Amendment’s citizenship clause overruled Dred Scott, declaring that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Supreme Court played a vital role in implementing the 14th Amendment’s citizenship guarantee. In the 1890s, Solicitor General Holmes Conrad argued that the native-born children of Chinese immigrants did not qualify for birthright citizenship. Conrad was an un-Reconstructed former Confederate officer who rejected every aspect of the 14th Amendment. He even went so far as to argue before the Supreme Court that the amendment was itself unconstitutional because the southern states had been coerced into ratifying it — a startling claim even in 1898. But the court rejected that view, holding in United States v. Wong Kim Ark that birthright citizenship applied to all, regardless of race or ethnicity.
 
Is there a justice whose views on citizenship came as a surprise?
Justice John Marshall Harlan’s dissent in Wong Kim Ark startled me.
Harlan’s stance in favor of civil rights for Blacks led Frederick Douglass to declare him “a moral hero.” In 1896, just a year before Wong’s case reached the court, Harlan had written an angry dissent in Plessy v. Ferguson — the case establishing “separate but equal” accommodations for whites and Blacks, cementing Jim Crow racial segregation into U.S. law until the Supreme Court’s 1954 decision in Brown v. Board of Education finally began to put an end to it. The court’s lone dissenter in Plessy, Harlan had passionately argued that “our constitution is color-blind.”
But then just two years later, he was one of only two justices to conclude that the native-born children of Chinese immigrants were not citizens, despite the clear language in the 14th Amendment granting citizenship to all born on U.S. soil. As you have written, Jack, Harlan’s dissent in Wong Kim Ark complicates his legacy as an advocate for racial equality.
 
As you explain, citizenship stripping lives on today. Donald Trump questioned birthright citizenship for the children of undocumented immigrants and threatened to end it by executive order. The State Department refused to give passports to those born near the southern border and outside of institutional settings. Citizens are mistakenly detained and deported by immigration officials, and proving citizenship is getting harder. What do you think the Supreme Court would do now if people were told by their own government, “You Are Not American”?

 In recent years, the Supreme Court has been more protective of citizenship than the political branches. In Afroyim, the court thought it had put an end to the government’s aggressive denaturalization campaigns, and for a while it succeeded. But a footnote in that opinion allowed for denaturalization in cases of fraud or mistake — a tiny loophole that the Trump administration used as grounds to launch an investigation of over 700,000 naturalized citizens. Whether the government’s expansive interpretation of that footnote is legally permissible never reached the Supreme Court.

I think if and when new cases come before the court, the justices are likely to be skeptical of the government’s power to lightly revoke citizenship. In 2017, in Maslenjak v. United States, the government argued before the court that it could denaturalize anyone found to have made even a minor error in a naturalization application. At oral argument, Chief Justice John Roberts asked Assistant to the Solicitor General Robert Parker if failing to admit to having driven at 65 miles per hour in a 60-mile-per-hour zone would be grounds for denaturalization. Parker responded yes, and the government lost its case in a unanimous opinion.
 
Does the story you tell show that the United States is basically a bigoted, racist country? Or is it the opposite, given humane outcomes like the quick repudiation of Dred Scott, the rejection of racial limits on birthright citizenship in Wong Kim Ark, and the opportunity for women who were expatriated because they married noncitizens to regain their citizenship?

It is both at once. On the one hand, the United States claims to be an open, tolerant country that welcomes immigrants — and at times it lives up to that ideal. But citizenship stripping is evidence of our nation’s schizophrenia. The government has repeatedly passed laws casting out its own citizens, both native-born and naturalized. Women who married noncitizens, Chinese Americans at the turn of the century, Japanese Americans during World War II, even labor leaders and political activists have all been declared “un-American” — not just rhetorically but as a matter of their legal status. Some were even deported. And as I explain in the last chapter, citizenship stripping lives on today.

Happily, though, the story doesn’t end there. As I describe in the book, those groups successfully fought back, sometimes (though not always) with the help of the Supreme Court. So the book is in part about the nation’s constant struggle to live up to its stated ideals.

SOURCE:  ​https://www.scotusblog.com/2021/01/the-supreme-courts-role-in-defining-american-citizenship/