Featured

Why We Need this Publication

Spend your leisure time cultivating an ear attentive to discourse, for in this way you will find that you learn with ease what others have found out with difficulty.

-Isocrates

Growing up in a family with different politics than my own, I remember attempting to make every night at the dinner table a debate. I was convinced my politics were on a moral high ground, and I was determined to convince my family of this. I thought it was my duty to “convert” my family to believers of the values that my political party championed. I remember my mom used to tell me, “Something you’ve got to realize about politics is, Democrats and Republicans may think differently, but they don’t really act all that different.”

The idea that both sides of the political spectrum share fundamental traits, despite having differing morals, has always lingered in my mind, and it is something that I have come to find very true. Neither side is on higher ground behaviorally, although both sides believe they are. You are probably thinking, “well of course Democrats and Republicans act the same, all humans act the same at their core,” but no, I mean how each side hates the other specifically for things that they themselves do. Neither side trusts the other, both sides fear one another, and most importantly, both have a flawed perception about what the other believes.

Research has shown that there is an ever-widening “Perception Gap” growing in American politics as we speak. A study conducted by More in Common found that the Democrats they surveyed believed 53% of Republicans to hold radical views on topics like immigration, women’s rights, and climate change, despite only 34% of Republicans actually doing so. And while only 29% of Democrats hold radical views on these issues, Republicans estimated that number to be 56%.      

So what does this tell us, and what does it have to do with this publication? Well, for one, it tells us that people on opposite sides of the political spectrum aren’t speaking to one another, a phenomenon driven by hyperpartisanship. It isn’t necessarily that Democrats or Republicans now have a stronger allegiance to their parties more so than ever before; it is that there is a stronger antagonism between the two parties unlike that of the past. Most importantly, with this antagonism comes assumptions that someone believes a certain way about something because of their association with a particular political party. 

This antagonism has become so strong that nowadays many Democrats and Republicans chose partners and friends not based on personality or level of intimacy, but on the political party they identify with. We’ve even had people quit writing for LPR because we’re too liberal, too conservative, or somewhere in between. It is this perception gap and unwillingness to attempt to understand other perspectives that is particularly dangerous to our society, and that is where we come in.

We at the Louisville Political Review are dedicated to closing that perception gap and to helping people understand one another. We are not necessarily seeking to change anyone’s mind about a particular issue, but open it to perspectives different from their own. Rather than filtering ideas to suit the beliefs of our readers and what we think they would like, we want to encourage our readers to challenge themselves to learn about an idea from a viewpoint dissimilar from their own.

Having a venue that challenges oneself to understand different perspectives is just as important for our readers as it is for our writers and editors. The makeup of our staff is incredibly diverse, and as a result, the articles we produce are inherently varied politically, socially, and intellectually. This indirectly exposes our writers and editors to a new and wide array of concepts and perspectives. Moreover, we actively encourage our writers to evaluate their beliefs, asking deeper questions like why they think the way they do, and to always consider other perspectives when writing. We believe actively creating this space for our readers, writers, editors to articulate their ideas and spark humble discussions around often contentious topics is crucial to closing the perception gap.

We hope this is, and remains, a publication the University and community of Louisville is proud of: a diverse display of the extraordinary writing and research by undergraduate students. Niccio Machiavelli once said, “Politics have no relation to morals.” At the Louisville Political Review, we vehemently disagree. Instead, we insist on elevating respectful and informed dialogue in a political climate where conflict, ruthlessness, and boldly shrewd attempts to gain power are glorified. In other words, we strive to be a light in an oftentimes dark profession; we strive to provide clarity in the convoluted. We reject Machiavellian tendencies, and instead look to another great philosopher, Dr. King. In his words, we at LPR have decided to stick with love; for hate is too great a burden to bear. 

Thus, we do not engage in ad hominem attacks on others, we do not tolerate hateful rhetoric from our members, and most importantly, we always recognize our intellectual inability to speak to every possible view of an issue. 

In order to achieve transparency between our writers, editors, and our audience, it is important to share the following information to highlight the necessity of our publication.

A couple months ago, a former writer of the Louisville Political Review shared posts containing slurs on their personal social media accounts that one could view as homophobic. That member was confronted in a private meeting, where they were informed that posts of hateful and offensive nature would not be tolerated on social media accounts that are associated with an active member of LPR. This was not an arbitrary or novel standard. In fact, we have severed ties with a writer before for breaching this standard. It is important to note that this meeting, though, was not set with the intention of terminating the member that breached the Code of Conduct, only to warn them against sharing further inflammatory posts. 

Instead of accepting that warning and committing to displaying more acceptable behavior, the former member instead initiated an impassioned tirade against members of the editorial board that was disrespectful and unprofessional. At the end of the meeting, the member resigned from the Louisville Political Review. 

We believe the issue is now resolved, and we want to ensure our readers that the entirety of the LPR staff remain fully committed to the continuance of this publication despite these events.

A Left-Wing Approach to the Question of Universal Suffrage

Felons have long been barred from voting in the state of Kentucky. In 2019, Governor Andy Beshear signed an executive order to allow certain non-violent felons to vote. However, executive orders are not permanent and can be overturned by future governors. In Kentucky right now, 15% of Black people cannot vote, and 20% of Black men specifically cannot vote. Across the state of Kentucky, restoring voting rights for felons has 67% support among voting aged adults that cuts across party and county lines. The arguments for restoring felon voting rights are numerous, but Marxist and leftist theory offers some particular insights into felon disenfranchisement. 

Writings of Leftist Leaders

There is a common misconception that Karl Marx rejects democracy as a whole, but it is clear from his works that he views democracy as a vehicle towards a better future; Marx argues that democracy is a much more authentic representation of the populace than monarchy or authoritarianism, and he argues that democracy should be the goal of societies imprisoned by illiberal regimes. Marx argues that the constitution and state in a democracy are the will of the people and therefore other states “are false to the extent that they are not democracy” (Springborg 540). Marx argues that in any society the people want to participate in the political process to the extent that they want to participate in society and argues that “the extension and greatest possible universalization of voting, of active as well as passive suffrage” is the best course of action. Essentially, that the population should be heard through both economic and political participation. 

Marx goes on to define voting as the “chief political interest of actual civil society,” because at a fundamental level it allows society to participate in legislative action. Marx takes a very strong approach to the equality of all human beings, and he extends that equality to voting, arguing in favor of complete universal suffrage. He pairs that with an argument about freedom of man to choose his own destiny, arguing that true equality and freedom come from choice, thus doubly reinforcing his support of universal suffrage (Springborg 544-548). 

Marx and Friedrich Engels argue that the working class must organize into a political party and that political participation is necessary. In later works they both support universal suffrage as a means of giving political power to the working class. It is entirely false to say that the United States has ever had universal suffrage. For much of our nation’s history, Black people, Native Americans, and women could not vote. Even today, some states have incredibly restrictive voting laws that depress voter registration and turnout. But it is felon disenfranchisement that takes the cake, disenfranchising millions of Americans. 

Engels does caution in Origin of the Family, Private Property and the State that “universal suffrage is thus the gauge of the maturity of the working class. It cannot and never will be anything more in the modern state, but that is enough. On the day when the thermometer of universal suffrage shows a boiling point among the workers, they as well as the capitalists will know where they stand.” Essentially, Engels argues that while universal suffrage will not overthrow the state, it is necessary to enhance the power of the downtrodden. 

Rosa Luxembourg, a German-Polish Marxist thinker and anti-war activist, articulates that Social Democracy must participate to the fullest extent possible in politics and that institutions such as “the police, the army, the state bureaucracy and corrupted party politicians” will try to push back against any class mobilization, which is why strong participation in politics is necessary for any labor movement. Leon Trotsky sums up classic leftist thought on the matter by stating, “The Proletariat’s most important method of struggle against the bourgeoisie, that is, against the bourgeoisie’s state power, is first and foremost mass action”, again calling for political participation and universal suffrage. As Lenin puts it, “The main task of contemporary Communism in Western Europe and America is to learn to seek, to find, to correctly determine the specific path or the particular turn of events that will bring the masses right up against the real, last, decisive, and great revolutionary struggle.” What is clear from all of these authors is that the first step in any society is establishing democracy, the next is universal suffrage and political activism, and the final is the continuation of class struggle towards an equitable end. 

The Situation in the United States

The United States is one of the most well established democracies in the world, but it has failed time and time again to provide universal suffrage, denying its populace equality and freedom in the process. The newest iteration of this is New Era Jim Crow legislation that denies former felons voting rights. Working towards universal suffrage should be a priority because it represents not only the opportunity for political power, but equality. This problem extends far beyond felon disenfranchisement, with Kentucky also discouraging mail-in ballots by limiting voter drop boxes and reducing the time you have to return a ballot and the Supreme Court recently gutting the Voting Rights Act of 1965. Among leftists, it is a common belief that true democracy transcends capitalism, but that any worker’s movement requires democracy to gain traction. Any rollback in voting rights, including felon disenfranchisement, reduces the power of the proletariat and makes it more difficult to organize for the working class’ interests. 

From a leftist or socialist perspective, felon status is irrelevant to the issue of voting because democracy should be predicated on uncompromising universal suffrage. Leftists view voting as a fundamental right within a democracy, a link to state participation that cannot be cut. Beyond the fundamental nature of voting, this is a working class issue. Crime is inherently tied to poverty in the United States, and the overlap between poverty, crime and racism is extreme. Felon disenfranchisement deprives mainly working class people of the right to vote, significantly diminishing their political power and hitting Black communities particularly hard.

Socialists have been front and center at various points in the United States’ history, fighting for voting rights from the Women’s Suffrage movement to the Black Panther Party. The socialist support of universal suffrage is two pronged: moral and practical. Morally, every person in a society should be able to politically participate, or else there is no freedom, no equality. Practically, workers can only gain political power through sheer numbers, and when the government purposely reduces the political power of Black people and poor people through felon disenfranchisement it prevents the working class from gaining political power, thus allowing the ruling class to continue the status quo of economic exploitation. 

This problem is amplified in the United States in particular due to mass incarceration and vestiges of Jim Crow era racism in our criminal justice system. One surprising factor is that representation in Congress is based on a census count that includes disenfranchised felons. Felons who cannot vote thus contribute to their voting district’s population, giving undue political power to others in those districts. As Tracy Huling points out in Mother Jones, one particularly grievous example is that districts with large prisons, which are overwhelmingly rural, white, Republican districts, are reapportioned votes based on the total population including prisoners who cannot vote. This system of mass incarceration provides cheap labor for the ruling class while at the same time reducing the political potency of the working class. This is a glaring miscarriage of justice, and it harkens back to the memory of the ⅗ Compromise in the Constitution which counted slaves as ⅗ of a person in the census count despite having no voting or citizenship rights, strengthening the political power of slave states. Today, the census count can affect education funding, number of representatives, and more, all at the expense of those who are incarcerated.

Maine and Vermont are the only two states that allow all felons voting rights even while in prison, and they serve as an example to emulate. Felons pay taxes, they have jobs, their children go to public school, they are members of society, and they are human. Any capitalist regime promotes inequalities in society because it benefits the elite, and the poverty that it creates is heavily correlated to crime in the United States. If committing a crime is grounds to have voting rights taken away, then the state wields an incredibly powerful tool for silencing the interests of the working class. History abounds with examples of Black, brown, and poor communities disenfranchised by the state, and the only way to prevent the state from using its power unjustly is to ensure complete and universal suffrage. 

When a person commits a serious crime against another person, society often dictates prison time as punishment, but allowing the state to deprive someone of the right to vote is a separate issue. In the case of prison time, the state takes away someone’s liberty in order to keep society safe and as punishment, but taking away the right to vote merely seeks to serve the interest of the ruling class and does nothing to repay a debt to society. Universal suffrage is an issue of state overreach at its core. The question is not whether a person in jail deserves the right to vote, it’s whether the state should be allowed to deprive someone of that fundamental democratic right. 

It is clear that universal suffrage is a fundamental aspect of democracy and that unjustly depriving felons of voting rights decreases the working class’ political power and perpetuates classist and racist institutions and practices. All major leftist thinkers call for a strong democracy to advance the interest of workers in order to further class consciousness and the struggle against oppressive capitalism. The ruling class has used disenfranchisement against the working class time and time again and this most recent iteration of mass incarceration and felon disenfranchisement is no different. 
A lack of universal suffrage only seeks to hinder the working class from achieving its full political potential, and the ruling class actively pursues disenfranchisement for this same reason. Universal suffrage is the next step to furthering the goals of the working class in America and is the next frontier of civil rights within our borders. In Kentucky specifically, there are particularly draconian voting rights laws that our state has the chance to change. Now is the time to restore the right to vote to over 198,000 Kentuckians who are unjustly deprived of participation in a fundamental part of society.

Kentucky Stands Alone on Felon Disenfranchisement 

Policymakers in state governments often take inspiration from surrounding states to implement changes in policy at home. Doing this gives lawmakers the ability to survey the intentions and effects of a certain policy before taking the risk of passing those policies in their state. This idea was explained perfectly by Supreme Court Justice Louis Brandeis, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” State governments are the laboratories of our democracy, testing ideas through implementation and measuring the results. 

Unfortunately, this concept cuts both ways. While it certainly leads to the spread and implementation of beneficial policy, it also results in the dissemination of detrimental policy–sometimes policy with malicious intent. This is the case with Section 145.1 of Kentucky’s state constitution, a clause that bans convicted felons from voting permanently even after they are freed from prison. Kentucky was the first state in the country to ban felons from voting in 1792, and almost every other state followed suit over the next few decades. 

Kentucky began an experiment that would have enormous consequences. The intentions behind the original law were questionable: deny fundamental citizenship rights to people who were “unworthy” of exercising those rights because they committed a certain crime in the past. This reasoning raises important questions. Are one or two bad actions enough to ban someone from participating in democracy? Who decides what felonies are and why are certain crimes considered felonies while others are not? If supposedly free people can’t vote, will they still have to pay taxes and follow laws? This would be antithetical to American values. The flaws in the logic behind this policy are innumerable. 

The experiment was always morally invalid in its lack of any grace or mercy for those convicted of crimes. It was always logically invalid under the principles of democracy. But the experiment became downright unethical when policymakers began to ratify the policy in their states to ban Black people from voting. Felon disenfranchisement laws were part of the web of Jim Crow regulations that made the Black vote nearly nonexistent in that era. Many of the state laws provided an avenue for the governor of the state to grant voting rights back to a former felon, leaving a path for white felons to gain their citizenship rights back. That provision came straight from Kentucky’s constitution. 

The Jim Crow era saw this experiment metastasize across much of the nation, as state policymakers in the north and south sought to restrict the Black vote. The creation escaped the lab and scarred society, denying millions of people the right to vote over generations. When the Voting Rights Act of 1965 brought a stop to many forms of voter bans, felon disenfranchisement laws remained intact. In the following decades, mass incarceration became prominent, replacing Jim Crow as the dominant legal system of oppressing Black people. Felon disenfranchisement laws written during Jim Crow now banned millions more Black, brown, and poor white people from voting. The laws became an integral piece of the New Jim Crow: one part of the “civil death” that follows a felony conviction, in addition to losing rights to gun ownership, employment discrimination, and being isolated from societal participation. 

This oppression led to advocacy and opposition to felon disenfranchisement. State governments went back to the lab to alter the experiment between the 1990s and the 2010s. Two allowed all people to vote, others restored the vote after completion of prison sentence and parole, and others only allowed certain former felons to vote. The laboratories of democracy were churning out solutions (or partial solutions) to a damaging policy. But two states remain committed to permanently disenfranchising former felons: Virginia and Kentucky. 

The policy’s original scientist remains committed to their dangerous project, not understanding, or maybe fully understanding, the effects on society. Those effects are clear: almost 10% of Kentuckians are not able to vote. Those effects are also stark: 15% of Black Kentuckians can’t vote–20% of Black men. Democracy is further damaged when state legislators ignore the views of the people they represent and refuse to propose an amendment to the state constitution to restore voting rights to former felons. 67% of Kentuckians support the automatic restoration of voting rights upon completion of prison sentences; among younger Kentuckians aged 18-34, 84% support restoration. Kentuckians are ready for their state to get back into the laboratory and heal our democracy. 

Our state started the convoluted experiment of felon disenfranchisement. Now we’ve seen the results; the whole country has seen them. We must work to end this experiment: it is undemocratic and frankly, it is inhumane. Who are we to condemn a man for life for one action he took? Who are we to deny others from participating in democracy with us? Who are we to say the Black Kentuckian can’t vote? Abolishing felon disenfranchisement is a necessity for our state. Let’s develop a new experiment where we allow all members of society to participate in it freely, starting with the right to vote. But defending the vote is not enough, Kentucky must also take a stand against employment discrimination and the stripping of other rights, as well as human rights abuses in its jails and prisons. We can give the rest of the country a blueprint to follow in advancing freedom, true justice, and equality–we can finally use the laboratory power of our state government for good. 

Lies, Hatred, Murder, and Hope: My Response to a Civil Rights Immersion Experience

Introduction 

The University of Louisville Martin Luther King Jr. Scholars Cohort of 2024, of which I am a part, recently went on a “Civil Rights Immersion Experience” throughout the South. We stopped in Memphis, Tennessee and Selma, Montgomery, and Birmingham, Alabama. We viewed a plethora of civil rights museums, historical sites, and memorials. It was the most powerful and thought-provoking journey I’ve ever taken. So, I’ve decided to share some of my feelings about what I saw. This was a special experience for our whole cohort that had a strong impact on each of us individually–therefore the thoughts below are mine alone. That said, the cohort helped shape my thinking through lengthy discussions throughout the trip, and by proxy, influenced this piece as well. To each of them, I say thank you.

Lorraine Motel: The Deathbed of Dr. Martin Luther King Jr–Memphis, TN 

There once lived an African king. His people, stolen from their motherland, faced violent hostility in a foreign land. He was moved to help them break the chains of oppression that they experienced daily. The king was a man of peace and love: he loved all humanity and believed in humanity’s capability to be redeemed. His devotion to love fueled his devotion to peace. He called it non-violence. Violence, to him, was wrong, ineffective, and created complex social problems. He preferred loving his enemy into releasing power, not beating him into it. 

The enemy hated the king despite his patient love for them. But their hate could not hold back his power, for it was not his alone, it belonged to his people. And his people were longing for freedom. The king took charge of a war that his people had been fighting for centuries, and he led them to victory in many major battles. After finishing the first battle, he began to lay the groundwork for another. His people, now citizens, were still hungry, still poor, still abused, and still powerless. He wanted to change that. As he organized his people to get them bread and shelter, he realized they weren’t the only ones who were hungry. He rallied the range of poor people to demand bread together, and this terrified the enemy. 

This scared them so much they had the king unceremoniously killed. The “most hated man in America” was gone. A people were left divided and directionless in the wake of a senseless murder. Senseless: the man preached love and brotherhood to an enemy bent on violence; but violence prevailed. They could not claim self-defense because the king was not violent, therefore they directly attacked the value of his humanity—and his people’s. His people had no choice but to retaliate with the methods the king opposed. And everywhere they lived, they fought. They would not be ignored. 

Though the king died, the war did not. Battles are being fought right now, they will certainly be fought in the future. The enemy claims the war was already won and urges us to sleep. We can work with them, sleep with them, live with them, eat with them—yes our fight was long but now we can rest, it’s done. Convincing the king’s descendants of this is paramount, because their organization must be avoided at all costs: their efforts must be weak. They lionized the king they once despised, the king they killed. They took the institution where he spent his final days from his people and degraded it into a corporatized shrine to his whitewashed legacy. The location of his final breath now a tool to indoctrinate his people into docility. Mere feet from the spot where the king died now lies a gift shop. 

I try to walk in the king’s footsteps. I don’t believe in idols, but I idolize him. The enemy made sure of it. In their schools, they gave me only a few heroes to pick from my people, and he was top dog. I read his writings, listen to his speeches, and study his methods. I always wanted to see Lorraine, the sacred place where darkness drove out his light. Having now been, I vow not to return until it is in the hands of the people he served, instead of serving the interests of the people he fought. It will be in our hands.

Viewing the grotesque scene of thievery and indoctrination left me with but one sentiment: rage. Rage against Lorraine’s presentation. Rage against Lorraine’s ownership. Rage against racism that forced the king to fight. Rage against the philosophies of peace and non-violence. Rage against the fact that my people are so powerless that we don’t even choose the destinies of our historical landmarks. Rage against the fact that most of my people are fooled by the sham presented at Lorraine.

Looking at the exact spot where the king was assassinated, a tear escaped from my eye and slid down my face. I could not allow it. That tear wanted, no it needed, to accelerate into a sustained sob. It should’ve been a cathartic experience to mourn a fallen leader from my tribe, but how could I allow myself that relief? How could I when his fight is not done and when the enemy controls the narrative of his most precious and powerful thing: his legacy. The words of another African leader, who was responding to the killing, rang in my head as I stared at the spot where they killed the king, “We will give no more tears for any Black man killed.” No more tears, not for the king nor the others who are killed every day up to today. We must defend our humanity, not merely mourn its loss! 

Arriving in Alabama 

“Sweet home Alabama, where skies are so blue. Sweet home Alabama, Lord I’m coming home to you.” Riding through Alabama’s countryside for the first time gave me true appreciation for those lyrics. The skies there are pure powder blue, and they seem more infinite and vast than usual. So immense is the Alabama sky that I felt like I was under it. I know, we are always under the sky, but there I could feel it. Its power was tangible, its beauty undeniable. Huge clouds filled the sky like masterpieces on a blank blue canvas. Illuminated by the shining Southern sun, they were bright, white, soft like cotton. The powder blue gave way to the verdant peaks of the trees. So many trees, tall and short, old and young, thick and thin, lush and green. The trees were bridges from the sky to the ground. The ground where the humans are, where we have etched our own art onto the canvas. As I rode, I watched the landscape transform. It cycled between forest and swamp—the tree line intermittently breaking to expose hidden mountains in the distance covered in greenery. Out here, the human footprint was small. Only rarely did I see man-made shelter amidst the sprawling nature. 

Once my amazement at the artistry of Alabama faded, one persistent and pressing question took its place. How could hate thrive in such a beautiful place? How could a man sell another man under this sky? How could he force him to pick cotton under these clouds? How could he hang him from these trees? How could he stomp him and spill his blood into this ground over and over and over again? Alabama is where human atrocity and beauty meet, a confounding place whose wonder can’t be trusted because it is built on unnecessary bloodshed and perpetuated by oppression. A beautiful land stolen from the Indians and built by Africans, yet ruled by the former European. They have mismanaged it into hatred, squalor, and scorn. 

Montgomery: the Origin of the Movement and the Confederacy

Our foray into Montgomery began with Dr. King’s church, from which he led the boycott of city buses in opposition to white supremacy. It sits right in the shadows of the Alabama state capitol, the stronghold of the state’s power. 25,000 had marched from Selma to this very building to demand the ballot. Walking from the humble two-story church to the ostentatious capital complex in the same footsteps as those freedom fighters was empowering and enlightening. Dr. King’s church and house were mere blocks from the state house, both marked by historical plaques that ironically featured the Alabama flag, a derivation of the Confederate flag. 

Dr. King’s home in Montgomery, Alabama. It was bombed with Coretta Scott King and his young daughter in it during the bus boycott.

The capital complex was astounding. Composed of intimidating buildings constructed with pristine white stone, the capital is set in the middle flanked on every side by imposing government offices. The grounds of the complex were frequently tended to–flowers lined the walkways and trees dotted the surrounding freshly cut landscape. My eyes were caught by a statue standing alone: his facial structure eerily familiar from Kentucky’s own capital. I approached it to read the name placard attached to confirm my suspicions. Jefferson Davis, the “president” of the Confederacy, stood there gallant and unashamed. Unsurprised, but disappointed I began to see other statues hidden in the greenery. Confederate. Confederate. Segregationist, a more modern Confederate. Then came the largest monument commemorating dead veterans from every branch of the Confederacy—the foot soldiers of American racism. 20 feet tall and scarily intricate with a cornerstone laid by President Davis himself. Thoroughly disgusted, we left without viewing the capital’s back side. What back there could redeem this up here? 

Upon departure, the similarities between the capital complex and the plantations of old struck me. This is how people would see Alabama. White, clean, tailored, perfect. The niggers who built it and maintained it are hidden away from the big house. Their presence would tear this grotesque facade of peace and prosperity apart. But as long as Black is in the back, law and order remain, the facade sticks. 

Alabama is bad at hiding its true intentions. They put their true heroes on the front lawn, but we should question the big houses in every city and state and the one in D.C. too. What are they hiding behind the granite and flowers and monuments? I think Alabama may have company. The plantation nature of this state is clear, but the plantations of 1860 are the prisons of 2022: they transform over time. Jefferson Davis need not be present for a plantation to be. 

Peace and Justice Memorial to the Victims of White Supremacist Lynchings–Montgomery, Alabama

4,075 Black people were lynched in America. There is no way to tell what the actual scope of loss is, because many lynchings went undocumented. The Peace and Justice Memorial in Montgomery attempts to visualize that loss. Hundreds, maybe thousands of rust colored boxes hung from the sky. Each was assigned to a county where lynchings occurred, and featured the name of each person who was lynched there. Name after name after name after name after name. Life after life after life after life after life. I was speechless while viewing the memorial and I’m speechless still. The best I can do is describe some of what I saw and thought to demonstrate the weight of terror lynching scarred on humanity. 

The Peace and Justice Memorial in Montgomery, Alabama

As I approached the hanging boxes, the breadth of them became clear. There were so many names and boxes. I walked up and down the rows one by one, soaking in each name, each date. These names are English: Smith, Jackson, Clark, Spence. How senseless: Africans dying in a foreign land for nothing but hate and greed. 23 Africans murdered on one day. 237 murdered on another. What happened these days? What fueled these crimes against humanity? I kept seeing people with shared last names eliminated on the same day. It’s often wondered why our family structure is so fractured. How could it not be? Many names were not names at all, they instead read “Unknown.” We can never forget the Unknowns: victims whose names weren’t even collected before their demise. How many Unknowns are there? How many Unknowns will we never know about? 

I left the Peace and Justice Memorial in pain and rage, having made a solemn promise to my ancestors: y’all did not die in vain.

An inscription at the Peace and Justice Memorial that reads, “Thousands of African Americans are unknown victims of racial terror lynchings whose deaths cannot be documented, many whose names will never be known. They are all honored here.”

Birmingham: Magic City 

By the time we reached Birmingham, I was numb. Hardened by Memphis, Selma, and Montgomery, I couldn’t quite feel anymore in Birmingham. This city was home to one of the fiercest struggles of the movement, but its tragedies and triumphs had no effect on me. The Sixteenth Street Baptist Church, where four Black girls were killed by a klan bombing, evoked no emotion when I saw it. Only emptiness. Addie Mae, Carol, Cynthia, and Carole. I’m sorry I couldn’t feel for you Queens. The cruelty towards our people is simply too great for a man not to be desensitized to it. The presentation of the battle you were forced to be martyrs for is so wrong, crooked, and traumatizing that my humanity could not handle it without eventually disassociating.

A statue in the park glorifying violence in Birmingham commemorating the four Black girls killed in a Ku Klux Klan bombing of the Sixteenth Street Baptist Church.

Right across the street from the church was a statue park that glorified the violence. Still cold, I walked through the statues depicting weak Negroes. We never fought back. At least that’s what these statues say. A huge white police officer with a vicious dog holding a Black man up by his shirt (the Black man had the features of a man, but was the size of a boy). An abstract piece with two walls on either side of the walkway: demonic police dogs were lurching out of the walls as I walked through. The last statue in the park was a wall that stood over the walkway, with an opening for spectators to walk through. Once on the other side, I stared down two water cannons: I flinched, then turned around to see two little Black kids hunched down against the wall, I guess using their backs to try and shield themselves from the unrelenting water pressure. I thought back to Jefferson Davis and his comrades in Montgomery. What purpose did those monuments serve? What purpose do these?

The dreadful stroll through the park ended in its center with a symbolism I couldn’t ignore. A large fountain lay there with an inscription, “This placid fountain mirrors the peace that the brave Freedom Fighters helped forge.” The fountain was dry, not an ounce of water to be found in it. It would not be complicit in the lie that peace prevailed. If peace did prevail, as so many seem to think, it was faux. That insidious peace that Dr. King described, “It was peace that had been purchased at the price of capitulating to the forces of darkness. This is the type of peace that all men of goodwill hate. It is the type of peace that is obnoxious. It is the type of peace that stinks in the nostrils of the almighty God.” A negative peace which is the absence of tension, not a positive peace that is the presence of justice. 

Conclusion: We are the Hope

The problems facing our society can often seem overwhelming: too much for us to handle. This is especially true when we are immersed in them. For a week, I was immersed in the worst society has to offer my people. All of us are constantly immersed in the bad of this world. Our screens won’t let us escape it. But hope and optimism cannot be found when we’re drowning: it can only be found in ourselves. We know the myriad conundrums facing us, so why wait to make some change? We must act: immersing ourselves in struggles of the past is not enough. Frederick Douglass said, “the youth should fight to be leaders today.” We are the change agents of today, we are the people that can ensure that future generations won’t have to drown. At the very least, we can give them the tools to swim.

Should Supreme Court Justices Serve for Life?

The Supreme Court’s main objective is to make decisions in significant legal cases with constitutional implications. The Court has the final say, and as the other branches of government have increasingly come to a stalemate over issues, its significance and power have only increased. As a result, nominations have become crucial to long-term political agendas and essentially depend on a justice’s passing away or retiring in order to achieve some degree of parity. Henceforth, justices serving on the federal bench should have term limits.

Context

The death of Justice Antonin Scalia and the controversy surrounding his replacement are an example of why term limits are important. President Obama, on his way out, had a chance to rebalance the court and nominate a new justice to take Scalia’s place. It was one of the rare times when duty and opportunity both collided, as the President was required to nominate someone for the newly opened position. However, the Republican-controlled Senate had other ideas. Anxious to avoid a liberal majority on the Supreme Court, Senate Republicans stonewalled and refused to even interview the nominee that was chosen. The election taking place later that year would determine whether they would have a chance to present a nominee of their own. As a result, the position was left vacant for almost a year while an election determined the future of the Supreme Court. Importantly, one key member of the Senate was able to completely stonewall the procedure. Senator Mitch Mcconnell (R-KY), the Majority Leader at the time, shut down any chance of a nomination for the better part of eight months. It was an extraordinary statement of power by the Senate leader. 

 Four years later, on the eve of another critical election the same thing happens. Ruth Bader Ginsburg, an iconic liberal justice of the court, dies suddenly. Again, cable news runs wall to wall coverage of her death and the implications.  In less than two weeks her replacement is already interviewing in Congress and has an appointment ready in the White House. In fact, then President Trump had been quoted as “saving” Amy Coney Barrett, the judge who would ultimately replace Justice Ginsberg, as a replacement in the event of her death or retirement. In this respect, things play out quite differently. Instead of her hearings being held up and being denied interviews by members of the Senate, her hearings are expedited and she is confirmed in less than a month. Mcconnell again plays a key role in making this happen, expediting the process on the eve of the 2020 election. 

At the root of these examples are two simple questions. Why should an institution tasked with such an important purpose have life tenure? Can an institution, and its participants that function off of lifetime political appointments ever be truly independent?

The simple answer is no. The idea of keeping justices independent through life tenure may have been well-intentioned, but in reality, it hasn’t worked out that way. Nominees typically have to run through a series of hoops in order to be considered. Certain nominees are often selected less for their judicial independence, and more for whether their rulings go in a certain direction or another. Amy Coney Barrett in particular, was known for her strongly conservative views. So was Brett Kavanaugh. Even though in their hearings they often referred to a respect for precedent, both were open about their views on certain topics such as abortion or the Affordable Care Act. Adding to that, political groups like the Federalist Society have close ties to many of the current conservative members of the Supreme Court, meaning they are able to disproportionately influence the direction of the court. In fact, the Federalist Society is the reason many of the recently confirmed justices were considered at all. On top of influencing much of American legal thought, the Federalist Society is responsible for putting forth many of the recent conservative justices over the past 40 years. While outside organizations are nothing new in terms of politics, it is a different discussion altogether when the members of the institution serve for life. Other, more grassroots organizations like Planned Parenthood tend to exist on the periphery of the process. While groups like Planned Parenthood may still receive an audience by the President, depending on who’s in office, they don’t receive nearly the same attention and deference as a group like the Federalist Society. In fact, groups like Planned Parenthood often have to resort to going to the media, and other forms of direct action in order to obtain an audience. 

Polarization and the Court 

This dynamic becomes ever more important when considering the importance of their task. The Supreme Court has the final say on most constitutional matters. In many cases, the outcomes have the ability to decide the rights of entire groups of people or the authority of government agencies. How can these rights be litigated and decided equitably in such a brazenly partisan process, by lifetime justices? In theory, Congress could pass a new law or codify an existing legal practice into law. It could make an end-run around the Supreme Court’s decision or come up with a new law.  Without clear voting majorities in either direction, however, that theory becomes increasingly difficult to put into practice. The endless political gridlock means that major legislative issues are taken out of the hands of elected officials and put into the hands of a small, unelected body whose thinking and priorities are outside the sphere of public influence. Placing term limits on Supreme Court justices would allow for a degree of churn, and as a result introduce more ideological diversity in an institution that desperately needs it. The current, hyperpartisan chariot race that has come to embody the Supreme Court and its nomination process, has become something many Americans have come to resent.

According to a poll conducted by the Associated Press, 2 out of3 Americans feel that Supreme Court justices ought to have some sort of term limits. Even fellow judges feel that the Supreme Court should institute some sort of term limit. Of the judges surveyed in a poll by the National Judicial College, over a third felt that Supreme Court Justices should serve a term of somewhere between 11 and 19 years. In talking about why, they felt that it would offer things like political stability and remove the immense pressure of nominating a Supreme Court justice. 

How Do Other Democracies Do It? 

In considering what we can do, we should consider what other countries do.  Take Germany as an example.The judges on the German Federal Constitutional Court serve for a set term of 12 years, with each term being appointed by a different arm of the German legislature. Those who serve on the Constitutional Council in France, which serves a similar function to the Supreme Court, serve 9-year terms. Two of the strongest democracies mandate terms for their constitutional courts. Why don’t we? In theory it makes sense. 9 year, or 12 year terms could make it so that Supreme Court nominations would become a routine affair. Instead of waiting for Samuel Alito to die in his sleep, someone else could fill the position at the end of his 12 year term. In practice, however, things are always different. In practice, any attempt to restructure the court would have to somehow get through the political, rain soaked mudpit of Congress. That’s a tall order for a chamber of government that can’t even agree on how to tax or protect its citizens. 

 Regardless, I believe that such an important position requires churn. It requires a constant set of clear minds and political balance in order to find the best outcome for all parties involved. Without that, how can we consider it to be a fair, and credible institution? How can anyone trust it? In order to save this institution, and by extension, our democracy, we must set term limits for Supreme Court justices. If we truly occupy the kind of stage, the megaphone that people say we do, then we have to use it. Even if it doesn’t succeed the first time, we still have to try. We have to try, and then try again.

Citizens United v. Federal Election Commission: Corporations and Fundamental Political Speech

The Louisville Political Review looks at monumental court cases that have defined the political sphere. Today we examine Citizens United v. Federal Election Commission and its societal impact on civil liberties.

The Supreme Court of the United States is an often misunderstood institution of our government. Their contentious decisions tend to be even more misunderstood by the public. These misunderstandings can be due to the complicated nature of a case, but also unfair narratives pushed by politicians and the media onto the public. When the decision for the Supreme Court case of Citizens United v. Federal Election Commission (2010) was handed down, it was characterized by President Barack Obama, the Democratic Party, and many others as a destruction of democracy and a victory for the ominous “special interests.” The narrative was that the Supreme Court arbitrarily decided to declare corporations as people, and consequently opened the floodgates for corruption and corporate dominance over elections and politicians. In reality, the decision was a reaffirmation of the First Amendment’s protection of free speech for associations of people and the ability for them to effectively communicate their political beliefs. Citizens United was a victory for free speech over the unconstitutional censorship imposed on organizations by powerful politicians and federal bureaucrats.

The History of Campaign Censorship and Citizens United

What is a corporation? A corporation is a legal entity that holds rights and responsibilities similar to individuals, but varies in structure and is distinct from its owners and managers. A labor union, on the other hand, is an unincorporated association of individuals organized to advocate for employees. Both of these associations of individuals were barred from engaging in certain “electioneering communications” by the Bipartisan Campaign Reform Act (BCRA) of 2002. Along with mandatory disclosure of donors and disclaimer of non-affiliation with a particular candidate, the BCRA prevented these organizations from spending their general funds on “any broadcast, cable, or satellite communication” that refers to a candidate for Federal office, is made within 30 days of a primary election or 60 days of a general election, or simply “promotes or supports a candidate for that office, or attacks or opposes a candidate for that office.” 

In January 2008, the Democratic Presidential primaries were set to take place. Former First Lady and U.S. Senator Hillary Clinton was one of the Democratic candidates for President. Citizens United was a conservative non-profit corporation that produced a documentary titled “Hillary: The Movie”, critical of Clinton and set to release right before the Democratic primaries. This documentary release would’ve violated the BCRA, as it would’ve fallen within the ban on electioneering communications made within 30 days of a primary. Concerned about facing civil and criminal penalties for the release, Citizens United sued, seeking declaratory (court judgment of controversy) and injunctive (restraint of action) relief against the Federal Election Commission (FEC), which intended to enforce BCRA against Citizens United.

Citizens United argued that the BCRA ban on certain corporate political speech violated the First Amendment, both on paper and in its application. The United States District Court for the District of Columbia rejected Citizens United’s argument and ruled in favor of the FEC, citing the precedents of Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003), both of which upheld restrictions on political speech based on the speaker’s corporate identity. Following the loss, Citizens United appealed the case directly to the United States Supreme Court.

The Decision of the Court

In a narrow 5-4 ruling, the Supreme Court ruled in favor of Citizens United. While the Court sustained BCRA’s donor disclosure requirements and ban on direct contributions to candidates from corporations and unions, the majority ruled that BCRA’s restrictions of independent expenditures on political speech by corporations and unions violated the First Amendment’s right to free speech. In doing this, the Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. As a result, the Court restored the importance of the longstanding precedent of Buckley v. Valeo (1975), which held government restrictions on independent expenditures to be unconstitutional under the First Amendment.

Associate Justice Anthony Kennedy authored the majority opinion. He justified the departure from the precedents of Austin and McConnell by arguing that they were both a “significant departure from ancient First Amendment principles.” When confronting the speech restriction imposed by BCRA, Kennedy and the majority used the standard of “strict scrutiny”, requiring the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” The Government’s stated interest in fighting political corruption or at least avoiding the appearance of corruption, influence, or access was not compelling enough in the eyes of the Court to restrict the freedom of speech of these organizations. Kennedy asserted that “corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” Kennedy further criticized BCRA’s use of government power to “command where a person may get his or her information or what distrusted source he or she may not hear” as “censorship to control thought.”

Associate Justice John Paul Stevens authored the sole dissenting opinion, joined by three other justices. Stevens relied heavily on the idea that despite their contributions to society, “corporations are not actually members of it.” He argued that corporations are unable to vote or run for office, and they can be managed and controlled by “nonresidents”. While this is all true, none of these facts seem relevant to the question of the constitutional validity of corporate speech, especially since they are all made up of individuals. Ironically, Stevens acknowledged and appreciated in the same opinion the expression of several nonprofits and business groups that were pushing for the Court to preserve BCRA. It is somewhat hypocritical to downplay the free speech rights of organizations, but then give weight to the opinions of favorable organizations.

Associate Justice Antonin Scalia wrote a concurring opinion, which joined the opinion of the majority, but aimed to critique Justice Stevens’ dissent. Scalia points out that Stevens failed to address the concept of pairing freedom of association with freedom of speech. Scalia agrees with Stevens’ assertion that Framers intended for the right to free speech to be held by individual Americans, but he makes clear that this individual right includes the “right to speak in association with other individual persons.” 

Freedom of Speech Through Associations

“Corporations aren’t people.” This phrase was chanted by protestors, written on protest signs outside the Supreme Court, and repeated by Democratic politicians following the decision in Citizens United. They’re right. Corporations aren’t people and it would be absurd to claim that they are. However, the problem with this popular phrase criticizing Citizens United is that it oversimplifies the decision of the Supreme Court. Corporations are not people, but they are free associations of people. 

The legal entity of a corporation is not limited to just the rich for-profit consumer corporations like Amazon or Google, but also non-profit political organizations like the American Civil Liberties Union (ACLU). The ACLU supported the Citizens United decision, recognizing the value of political speech of organizations made possible through independent expenditures, whether it comes from the non-profits of Planned Parenthood or the National Rifle Association, or the for-profits of General Motors or Microsoft. The ACLU stood firmly against “campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.” 

Even the very organizations that aim to overturn Citizens United have benefitted from the protection of their political speech by the decision. “End Citizens United” is a non-profit corporation and multi-million dollar, progressive Political Action Committee. Despite its stated goals to “overturn Citizens United” and “end the unlimited and undisclosed money in politics”, it has become an influential organization engaged in the very same political speech via independent expenditures protected by the First Amendment thanks to the ruling in Citizens United.
In an era of “truth commissions” and misinformation, it is more important than ever to reexamine cases like Citizens United and grow in our understanding and appreciation of the First Amendment’s principles. Justice Scalia once said that “the premise of democracy is that people are intelligent and can discern the true from the false.” While neither democracy nor people are perfect, we must encourage the development of a free marketplace of ideas by individuals and associations rather than a heavily regulated one that defers to the government to decide the good from the bad.

The Kentucky Roots of Marriage Equality in Obergefell v. Hodges

The Louisville Political Review looks at monumental court cases that have defined the city of Louisville, and the Commonwealth of Kentucky. Today we examine Obergefell v. Hodges and its societal impact on civil liberties.

On June 26, 2015, crowds gathered in front of the U.S. Supreme Court building, anticipating the final rulings of the term. Although the Court does not share in advance which of its decisions it will issue on a particular day, a family from Louisville had flown into D.C. very late the night before to be in line before dawn the next day.  Greg Bourke (UofL alum), Michael DeLeon, and their two children had a special stake in the outcome of the case because they were two of the named plaintiffs in the consolidated case Obergefell v. Hodges, which challenged state bans (including Kentucky’s) on same-sex marriage as a violation of the 14th Amendment. Sitting in the courtroom, the clerk announced that Justice Anthony Kennedy had the majority opinion in Obergefell v. Hodges, and Justice Kennedy read an abbreviated version of his 5-4 ruling (invaliding the state bans) to those in the courtroom. Outside, as news of the ruling came, those who had come to support LGBT rights erupted into cheers, while same-sex marriage opponents stood more quietly. 

Obergefell v. Hodges was a collection of cases from Ohio, Kentucky, Michigan, and Tennessee involving 14 couples and two individuals whose partners had died (Jim Obergefell being one of those individuals). It came on the heels of two Supreme Court decisions, both written by Justice Kennedy, that energized the marriage equality movement. Hollingsworth v. Perry (2013) upheld a lower federal court decision striking down the state’s same-sex marriage law, effectively legalizing same-sex marriage in California. U.S. v. Windsor (2013) struck down the federal Defense of Marriage Act as a violation of the 5th Amendment Due Process Clause, criticizing the motives of Congress in interfering with the regulation of marriage. Windsor dealt with a plaintiff (Edie Windsor) whose marriage was legally recognized by the state of New York, but because it was not recognized by the federal government, the death of her wife resulted in a tax bill of $363,000 that she would not have been assessed if her spouse was a man.

After Windsor was handed down, Louisvillian David Corbett wanted to find Kentuckians willing to challenge Kentucky’s state constitutional amendment banning same-sex marriage. Two local attorneys were willing to take this case; Shannon Fauver and Dawn Elliott worked at a small private practice in Louisville (Fauver Law Office) and had represented other LGBT couples in bankruptcy proceedings. After some thought, Greg Bourke and Michael DeLeon decided that they would join this lawsuit – which, at the time, was not supported by either the local or national ACLU.  For Greg and Michael, their children were the primary motivation for becoming plaintiffs in the case. The couple had married in Ontario in 2004, but because the state of Kentucky did not recognize their marriage, only Michael was recognized as the legal, adoptive parent of their children; Greg was a legal stranger to them, and if anything happened to Michael, he would have no legal rights for custody. Paul Campion and Randy Johnson (two other plaintiffs in the Kentucky litigation) were similarly motivated. The Louisville couple have four adopted children (who were 18, 14, and 10 at the time their parents joined the case), and, after a cancer scare, also worried about custody of their children. 

Along with other plaintiffs, two suits were brought against the Democratic governor Steve Beshear and the Democratic state attorney general Jack Conway. In Bourke v. Beshear, couples with valid marriages from other states or Canada were challenging Kentucky’s refusal to recognize those marriages, while in Love v. Beshear, couples seeking to marry in Kentucky challenged the state ban on same-sex unions. Kentucky was one of 13 states who put a state constitutional amendment to ban same-sex marriage on the ballot in 2004, where it passed easily. The amendment meant that legal challenges could only be brought under the U.S. Constitution.

Both lawsuits (Bourke v. Beshear and Love v. Beshear) were brought in federal district court and were assigned to Judge John Heyburn (W.D. of Kentucky), a moderate judge appointed by Republican President George H.W. Bush in 1992. (Heyburn passed away before the Supreme Court ruling in the case.) Just before Valentine’s Day in 2014, Judge Heyburn ruled in Bourke that the state’s rationale of preserving the traditional institution of marriage was not rationally related to any legitimate governmental purpose and violated the 14th Amendment Equal Protection Clause by discriminating on the basis of sexual orientation. He observed that “Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties,” citing the rejection of interracial marriage bans in Loving v. Virginia (1967) as one example. 

Five months later, he followed with his ruling in the aptly named Love v. Beshear, where he again ruled against the state. He was unsparing in his reaction to the state’s argument: “The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: ‘encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.’ Perhaps recognizing that procreation-based arguments have not succeeded in this Court, see Bourke, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability. These arguments are not those of serious people.” Here, it is important to note that states with same-sex marriage bans had been forced to change their legal strategy as a result of two other Justice Kennedy decisions. In Romer v. Evans (1996) and Lawrence v. Texas (2003), the Supreme Court had rejected morality arguments as a basis for state laws targeting individuals on the basis of their sexuality, saying that “a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” As a result, many states turned to arguments related to procreation and child-rearing, though Kentucky’s argument about how banning gay and lesbian couples from marriage would improve the birth rate was a novel one, to say the least.

After these rulings, a new wrinkle emerged: attorney general Jack Conway held a tearful press conference announcing that he could not, in good conscience, file an appeal of Judge Heyburn’s rulings.  (Conway would later go on to become the Democratic nominee for governor, losing to Republican Matt Bevin in 2015.)  In light of this development, an outside law firm was hired to represent the state of Kentucky in their appeal. When the U.S. Court of Appeals for the Sixth Circuit announced its decision in November 2014, it was a reversal of Judge Heyburn’s rulings.  

Writing for the 2-1 majority, Judge Sutton noted, “This is a case about change—and how best to handle it under the United States Constitution…What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit [Kentucky, Michigan, Ohio, and Tennessee] or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples.” 

The only woman on the Sixth Circuit panel, Judge Martha Daughtrey wrote a stinging dissent where she criticized the majority for, “fail[ing] to grapple with the relevant constitutional question,” and instead setting up a “false premise” about democracy and federalism.  She noted that the majority was treating the plaintiffs as, “social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win the ‘hearts and minds’” rather than individuals suffering harm for the denial of their marriage rights. And she concluded by referencing her oath of office, saying that, “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

Ultimately, a five-justice majority on the Supreme Court agreed with Judge Daughtrey. But with the retirement of Justice Kennedy, as well as the addition of President Trump’s three new justices, the future of Obergefell and marriage equality is in question.  Crucially, the line of cases that led to Obergefell begins with Planned Parenthood v. Casey, one of the two precedents overturned by the Supreme Court (the other being Roe v. Wade).  In Casey, the majority recognized that the right to a pre-viability abortion was consistent with the court’s other precedents offering constitutional protection to personal decisions related to marriage, procreation, contraception, family relationships, child rearing, and education because these were “personal choices central to individual dignity and autonomy” that are “central to the liberty protected by the Fourteenth Amendment.” 

The recognition of rights not specifically mentioned in the Constitution (like marriage and child rearing) is part of an older constitutional doctrine known as substantive due process. This doctrine “reads in” fundamental rights to the word “liberty” in the Due Process Clause, as long as these rights are “implicit to a concept of ordered liberty” and “deeply rooted in the nation’s history and traditions.” Once a right is designated as fundamental, the government must meet a much more stringent standard if it wishes to infringe upon that right. 

As noted above, Casey became about more than just abortion. In Lawrence v. Texas (2003), the Court relied heavily on Casey when it struck down a Texas law that criminalized private, consensual homosexual acts between adults but did not do the same for heterosexual sodomy. Referencing Casey, the Lawrence majority determined that the state sodomy law infringed upon the “most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” and violated the 14th Amendment. With this broad framing, the Court set the stage for its rulings in Windsor and Obergefell. Because of the sequential and interconnected nature of legal precedent, without Casey, there is no Lawrence, and without Lawrence, there is no Obergefell.

With Casey gone, this may free the conservative supermajority on the Supreme Court to revisit Obergefell, which seems especially at odds with the originalist opinions by Justice Samuel Alito in the Mississippi abortion case (Dobbs v. Jackson Women’s Health Organization) and Justice Clarence Thomas’ majority opinion in the New York gun case (New York State Rifle Association v. Bruen). Crucially, in Obergefell, the majority rejected a reliance on history and tradition when determining whether a fundamental right was at stake. They wrote, “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” In essence, the majority argued that focusing too much on history had the effect of cementing in place discriminatory sentiments that were commonplace early in our country’s history. 

In contrast to Kennedy’s Obergefell opinion, in the two cases from this term on abortion and gun rights, both Justice Alito and Justice Thomas anchored their respective opinions in historical arguments. They argued that the Court should look to the understanding of the asserted right at the time of the Constitution’s ratification (for interpreting whether a gun regulation violates the 2nd Amendment), or the time of the 14th Amendment’s ratification (for assessing whether the right to an abortion is fundamental). Looking backward to historical practices from the 18th and 19th century is not likely to be an approach that advantages LGBT legal claims for constitutional protection.

Moreover, Justice Alito’s dissent in Obergefell provides some clues about the linkage between Dobbs and future cases on LGBT rights.  He writes that, “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate…

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.” 

It should be noted that Dobbs represented a departure from the Supreme Court’s usual pattern of expanding constitutional rights when it eliminated a previously recognized right, and it has created a great deal of instability (and additional litigation).  A similar impact would be felt if Obergefell were to be overturned by a future Supreme Court, leaving it up to Congress to act (by statute or U.S. constitutional amendment) or states to act (also by statute or state constitutional amendment). 

Returning to the Louisville plaintiffs in Obergefell, it is important to remember that while courts exist to settle disputes and interpret the law, people’s lived experiences do not always fit with the rights they are guaranteed on paper. Judicial decisions are not self-enforcing, and the implementation of the laws often comes down to what political scientists call, “street-level bureaucrats”: concerning marriage, the implementation often comes down to whether a county clerk or a justice of the peace will sign a marriage license. Indeed, Kentucky received national attention when Rowan County clerk Kim Davis refused to sign marriage certificates for gay and lesbian couples after the Obergefell ruling. (Similarly, in 2009, a Louisiana justice of the peace refused to grant a marriage license to an interracial couple, in conflict with the 1967 Loving v. Virginia decision.) Even after the Obergefell decision, many of the Kentucky plaintiffs continue to advocate for LGBT equality in private organizations like the Boy Scouts of America, their places of worship, their workplaces, and their local communities.  The focus has shifted away from marriage to other issues, including transgender rights, but the Bourke and Love plaintiffs have the rare experience of being part of a landmark Supreme Court decision. 

The Impact and Implications of Dobbs v. Jackson Women’s Health Organization

The Louisville Political Review looks at monumental court cases that have defined the United States, Commonwealth of Kentucky, and city of Louisville. Today we examine Dobbs v. Jackson Women’s Health Organization, its impact on the physical autonomy and bodily integrity of women, and political and electoral implications.

Friday, June 24th, 2022 will undoubtedly go down in United States history as a day no woman will ever forget. Though news of the soon-to-be released opinion in Dobbs v. Jackson’s Women’s Health Organization was leaked by Politico in early May, no amount of time could have prepared me for the heart-wrenching notification I received Friday morning stating that the official Supreme Court ruling had been handed down. I had woken up that morning in a country where my right to reproductive health care, privacy, and abortion were constitutionally protected. But like so many Kentucky women and others from states where trigger laws went into effect as soon as Roe was overturned, I suddenly lost these rights at 10:10 AM. 

Background & Precedent

In 2018, the Mississippi State Legislature passed the “Gestational Age Act” which banned abortion after 15 weeks of pregnancy except for instances in which there is severe fetal abnormality or a medical emergency. The legislation asserts that any Mississippi provider who performs an abortion on a woman after the 15-week mark of pregnancy will be subject to license suspension or revocation. On the day the Gestational Age Act was meant to go into effect, the only abortion clinic in the state, the Jackson Women’s Health Organization, and one of its providers filed suit in federal district court. They challenged the constitutionality of the bill and asked for a temporary restraining order, which was granted. Thomas Dobbs, a Mississippi State Health Officer, and other interested parties argued that the Mississippi law was constitutional because of scientific advancements suggesting a fetus could be viable as early as twelve weeks due to its ability to sense outside stimulation. The federal district court rejected this notion and ordered that the fact-finding scope be limited to determining whether the 15-week mark is before or after viability.

The federal district court held that the Gestational Age Act violated the due process rights of women seeking pre-viability (which is commonly understood to be before the 24-week mark in pregnancy) abortions in Mississippi. The Fifth Circuit Court of Appeals affirmed the district court’s decision, holding that the Supreme Court’s precedent categorically created a right to a pre-viability abortion under the viability standard from Planned Parenthood v. Casey. Dobbs then filed a petition for certiorari (they requested the Supreme Court to review the case to consider it for adjudication). The Supreme Court granted writ to address the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.

In oral aguments before the Court, the Petitioner, Dobbs, argued that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions formed in Roe and Casey, or alternatively, reject the standard of viability entirely. Dobbs asserted that Roe and Casey are wrong because there is no explicit or implicit right to abortion in either the Constitution or embedded in United States history. The Respondent, Jackson Women’s Health Organization, contended that the right to abortion is protected by the 14th Amendment’s Due Process Clause because physical autonomy and bodily integrity are crucial components of liberty. They then pointed out that the Court has found “liberty” to include rights to decide whether to accept medical treatment and to use contraception, and the right to abortion should be included under the same standard.

In Roe v. Wade, the Court held that the right to abortion is part of a right to privacy rooted in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe created a framework to balance the rights of the mother and her unborn child, despite the Court concluding in this case that “the unborn have never been recognized in the law as persons in the whole sense.” They did this by prohibiting states from regulating abortion within a pregnant person’s first trimester, allowing states to regulate abortion within the second trimester if the regulations are reasonably related to the health of the pregnant person, and then granting states the right to completely ban abortions within the third trimester of pregnancy unless an abortion is absolutely necessary to save the life or maintain the health of the mother. This framework was utilized due to the fact that a fetus is not viable outside of the womb until around the 24-week mark, or the tail end of the second trimester. With this logic, the mother maintains her right to marital, familial, and sexual privacy within the first and second (if applicable, depending on the state) trimesters of her pregnancy, and the life of the viable fetus is protected within the third trimester.

In Planned Parenthood v. Casey, another landmark abortion case, the Court reaffirmed Roe and argued that abortion is constitutionally protected by the right to liberty under the 14th Amendment’s Due Process Clause. However, the Court in Casey imposed a new standard to determine the validity of laws restricting abortions in which it must be determined whether a state abortion regulation has the purpose or effect of imposing an “undue burden”: a substantial obstacle to a woman seeking an abortion before the fetus attains viability.

The Opinion of the Court & Discussion

The Court ruled in Dobbs v. Jackson’s Women Health Organization that the Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. 

Among Associate Justice Samuel Alito’s many arguments in the Court’s opinion on Dobbs, perhaps the most prominent was his assertion that abortion is not protected by the Constitution because it is not expressly or implicitly referenced in the document. He asserts that abortion is not even implicitly mentioned in the 14th Amendment’s Due Process Clause, which the Court in Roe had previously disputed. He discusses how what qualifies as “liberty” provides little guidance to the Court and has long been controversial, with different people having different interpretations of what liberty means to them. In deciding whether or not a perceived right falls under the protection of the Due Process Clause, he says, the Court asks itself whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty” to keep their rulings from getting easily political. Justice Alito cites examples of cases where this decision had to be made, such as in the case of McDonald v. Chicago, which brought to question whether the individual right to bear arms was preserved under the 2nd Amendment and incorporated via the 14th Amendment. To measure the right’s deep rootedness in our nation’s history, the Court surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. Only then did the opinion in McDonald conclude that the right to keep and bear arms was indeed protected under the 14th Amendment and deemed necessary to our system of ordered liberty. Justice Alito then concludes that since there was little support in American law for the constitutional right to obtain an abortion until the latter part of the 20th century, the right to an abortion is thus not deeply rooted in our nation’s history or protected under the 14th Amendment. 

To this I would say: the prioritization of women and their rights has never been deeply rooted in our nation’s history. Yes, we have been around since the country’s origins, but we have only reaped certain benefits of citizenship since the 1920s with the ratification of the 19th Amendment. Secondly, the term women isn’t even mentioned in the Constitution, nor is it in any of the country’s founding documents–despite their many mentions to men. And why would it be, when the Constitution was written nearly 200 years ago by men alone? In fact, the principle of coverture (where a married woman was simply not a person under the law; her legal existence was only associated with that of her husband’s) prevailed at the time the Constitution was written and adopted. Thus, the Court utilizing the question of whether a perceived right is “deeply rooted in our nation’s history” to determine if it is indeed a right under the Due Process Clause is nothing but a tool to easily exclude the rights of women, Black Americans, indigenous people, and LGBTQ+ folks whose rights have never been a top priority in our nation’s history. The utilization of this metric is incredibly flawed, and if the Court continues to use this, cases like Griswold v. Connecticut, Lawrence v. Texas, Obergefell v. Hodges, Loving v. Virginia are at high risk of also being overturned and the rights of so many more Americans will no longer be constitutionally protected.

There is a long history of women not being protected by the Constitution, and more specifically, by the liberties of the 14th Amendment, which has been utilized in the American legal system for decades to ensure unenumerated rights. Though the 14th Amendment often uses the gender-neutral term “persons” and many legal scholars argue this term was used by the Framers to be implicitly interpreted to include women, the Court itself obviously did not completely agree with this for more than a century after the Constitution’s ratification. Cases like Bradwell v. Illinois, Minor v. Happersett, and In re Lockwood all highlight this. 

In Bradwell v. Illinois in 1873, a female attorney named Myra Bradwell claimed the 14th Amendment granted her the right to practice law in the state of Illinois by virtue of her status as a United States citizen. However, the Court found that the right for a woman to choose her profession was not protected under the 14th and that the “respective spheres of man and woman,” with women performing the duties of motherhood and wife in accordance with the “law of the Creator,” needed to be maintained. Using a separate spheres argument, the Court found that women in the U.S. could be legally excluded from the practice of law.

In the case of Minor v. Happersett in 1875, a number of women attempted to vote in a federal election, using the justification that the 14th Amendment protected their liberty to do so. Among these women were Susan B. Anthony (who was arrested and convicted afterwards) and Virginia Minor, who had to get her husband to file the lawsuit due to coverture laws forbidding her from doing so. Despite agreeing that women were indeed United States citizens under the 14th Amendment, the Court found that voting was not one of the “privileges and immunities of citizenship” and thus states could deny women the right to vote.

Again in the case of In re Lockwood in 1894, the state of Virginia would not allow female attorney Belva Lockwood to be admitted to the bar or practice law in the state. She argued that the 14th Amendment protected her right to be admitted to the Virginia bar as a citizen of the United States, however, the Court ruled that she could not practice law in the state due to a “common law disability” in which she did not have the right to enter into contracts with third persons without the permission of her husband.

And it hasn’t only been the Supreme Court who has been unconcerned with protecting the rights of women; Congress and most state legislatures have historically been neglectful of women and codifying their rights as well. In the Court’s majority opinion, Justice Alito argues that the primary reason the right to abortion is not “deeply rooted in our nation’s history” is due to the fact that, until the latter part of the 20th century, there was no support for the right to abortion in American law and that the earliest article proposing a constitutional right to abortion brought to the Court’s attention was published only a few years before Roe. He discusses how by 1868 when the 14th Amendment was ratified, three-fourths of states had enacted laws criminalizing abortion, and thus, there is little supporting evidence that abortion is supported by American law. With that logic, a case like Brown v. Board of Education, which prohibited segregation on the basis of race in public schools, would need to be overturned as well, since the same Congress that enacted the Fourteenth Amendment also segregated the public schools in the District of Columbia.

To that point, it bears mentioning that advocating for the right to abortion, or really any rights for women, has historically been the responsibility of female legislators. In a country where men have always held the majority of all facets of our government and where women have only been eligible to vote since the 1920s, the concerns of women have not always been so easily brought to light. It wasn’t until 1916 that a woman was first elected to Congress, and still to this day, women have never made up more than 27% of all members of Congress. Two-thirds of the women ever elected to the House have only been elected in 1992 or later, and the numbers are similar in the Senate: 42 of the 58 women who have ever served in the Senate took office in 1992 or later. This lack of representation has been an overwhelming obstacle to bringing forth the legislative needs of women–particularly those needs involving pregnancy and abortion. Thus, the logic of Court in Dobbs to rule abortion is not constitutionally protected by the 14th Amendment because it is not adequately supported in American law fails to truly consider how the underrepresentation of women in government has affected abortion’s presence in our nation’s legislative history.

Besides the Court’s flawed argument that abortion is not explicitly or implicitly protected by the Constitution, there is also another flaw in their opinion: the Constitution never explicitly defines when life begins. Throughout American society, there are indeed different interpretations of when life begins; for instance, as a Catholic, I was taught to believe life begins at conception. Many in the Jewish faith believe that life begins at birth. Those in the medical field typically agree that life begins when a fetus is viable outside at around 26 weeks. But, constitutionally, the beginning of life is never defined. In fact, as concluded by the Court in Roe, “the unborn have never been recognized in the law as persons in the whole sense.” So why exactly is the Court allowing states like Kentucky to grant more rights to a fetus, whose life is not explicitly or implicitly constitutionally protected, than a living, breathing human woman? In a country that touts a strong separation of church and state, it is difficult to understand the Court’s constitutional basis for allowing an imbalance of rights between a woman and an unborn child. Perhaps it is because this Court rules on their own personal politics, not on law.

The Political Implications of Dobbs

Despite Justice Alito writing in the majority opinion that nothing in Dobbs should be perceived to cast doubt on other precedents not pertaining to abortion, the concurrning opinion written by Associate Justice Clarence Thomas may suggest otherwise. In his opinion, Justice Thomas asserts that the Due Process Clause of the 14th Amendment does not secure any substantive rights, and thus it certainly does not secure the right to an abortion. Because of this, he says, the Court should reconsider all substantive due process precedents. He specifically mentions how cases like Griswold v. Connecticut, which secured the right for married people to obtain contraceptives; Lawrence v. Texas, which secured the right to engage in private, consensual sexual acts; and Obergefell v. Hodges, which secured the right for same-sex couples to marry, are “demonstrably erroneous,” and it is the Court’s duty to “correct the error” established in those precedents.

Justice Thomas’s opinion is inarguably concerning. If this Court does not believe that abortion passes the test of being “deeply rooted in our nation’s history,” then it is hard to imagine that they will find protections for contraceptives, same-sex marriage, or same-sex sexual relations “deeply rooted” in our nation’s history, either. As the liberal minority points out in their joint dissenting opinion, either the majority does not really believe in its own reasoning, or all rights dating back to the mid-19th century are insecure. If this ultra-conservative Court continues to follow the deep-rootedness test to determine whether a right is protected under the Due Process Clause, the only rights they’ll find protected in this country are those for white, landowning men.

This is what is incredibly worrying about the Court as an institution; there are no formal rules about whichever test they must use to determine if something is a protected right, they can simply arbitrarily decide on a standard that best supports their own personal political beliefs. 

And data has shown that the American public’s confidence in the Court as an institution is dwindling; according to a Gallup poll conducted this year, only 25% of adults in the U.S. say they have “a great deal” or “quite a lot” of confidence in the Court, which is down 11 percentage points from the year prior. This is a historic low in the 50-year history of the Gallup poll, with the highest confidence rating peaking in 1988 at 56%.

This 11-point plummet is most likely due to Politico’s leak of the opinion in Dobbs back in early May, where it was rumored a clerk to one of the liberal justices leaked the opinion early in hopes of garnering enough public outlash to divide the Court’s majority before any ruling could be officially handed down. Though the leak did not affect the Court’s final ruling on Dobbs in June, there are still major implications for the Court and its legitimacy going forward. Regardless of your views on the ruling itself, this leak completely impedes the Court’s ability to function as an independent check on government action, and trust amongst Justices and staff has been entirely compromised.

In addition to the implications for the Court as an institution and the constitutionality of unenumerated rights, the ruling in Dobbs may have electoral implications as well. Since 1976, when the GOP adopted a platform that promised an anti-abortion constitutional amendment, abortion has been a galvanizing force for the conservative movement. According to a 2021 poll by Pew Research Center, 72% of conservatives said abortion should be illegal in all or most cases. But now that abortion is no longer protected by the Constitution and red states are free to place restrictions on abortion as they please, will conservative voters reward conservative candidates in the 2022 midterms for their legislative success, or will they throw in the hat and say “the work is done?” As of July 1st, in a generic ballot for Congress, if the elections were held today, 47% of likely voters would vote for the Republican candidate, and 42% would vote for the Democratic candidate. However, the polling is extremely preliminary on this, and it is far too early for the weight of the abortion ruling to be truly felt by Americans.

Similarly, will Democrats be discouraged by the ruling in Dobbs and lack of codification of Roe in a Congress controlled by their party, or will they be emboldened to go to the polls and spark change in November? It is definitely hard to predict. In a poll conducted by Reuters/Ispos in early May, 63% of respondents said they were more likely to support candidates who support abortion rights in the Nov. 8 election that will determine control of Congress for the next two years. In addition, research shows that holding deeply negative views of the opposite party and its leaders is correlated with political participation. Thus, Democrats in red states with trigger laws may have a higher turnout rate in November than they would have otherwise had.

Conclusion

In conclusion, the Court’s opinion in Dobbs has brought to light many inherently wrong aspects of the Court as an institution and their views on the rights of groups who have never been prioritized in our nation’s history. In a Post-Roe America where the Court is no longer protecting the rights of so many Americans, it is crucial that we organize, rally, and vote to ensure our voices are heard and rights protected.

For Kentuckians, here is important information about the upcoming general election on November 8th, how you can vote, voter ID requirements, polling locations, and more.

Clay v. United States: A Pivotal Moment in War Ethics

The Louisville Political Review looks at monumental court cases that have defined the city of Louisville, and the Commonwealth of Kentucky. Today we examine Clay v. United States and its societal impact on civil liberties.

Background

On November 1st of 1955, the United States began their controversial campaign in the Vietnam War. In the 1960s, thousands of college students would create a series of anti-draft protests on their campus. During the Civil War, Americans took to the streets following Lincoln’s draft order of 1863 that brought forth a riot in New York City. College campuses became a crucible for anti-war protest as students came to protest an unjust war as graduation would spell Vietnam for thousands of graduating college students. Students began burning their draft cards as acts of rebellion in 1964. Thousands of young men burned their draft cards and left the country to evade the war. 

In 1969, President Nixon ordered a random selection lottery system for men to serve in the war based on their age and date of birth. Muhammad Ali, a Muslim and an influential figure in the United States and the world of boxing, was given the status of I-A, meaning he was eligible for unrestrictive military services.Ali would be the first to be deployed to Vietnam. From this he had to report to Houston to undergo a series of tests before being shipped out to Vietnam. However, he refused, as the war went against the teachings of his religion. Because of his defiance, he was prosecuted and convicted. 

The Opinion of the Court

Following his moral stance, the Fifth Circuit Court of Appeals ruled that Ali was to be jailed, and given a $10,000 fine for his “disorderly conduct.” Ali was essentially black-balled from the boxing community, following a number of boxing commission unrecognizing him as the undisputed boxing heavyweight champion. Formerly known as Cassius Clay (changed his name in the 1960s due to his religious and personal beliefs), Ali filed for a petition to the Supreme Court, whereas we get the trivial case of Clay v. United States

The main question that arose from the case was whether Ali’s induction notice was unlawful since it was based on an incorrect denial of his claim of conscientious objector status.  The biggest obstacle for the court was defining what classifies as a conscientious objector. The court concluded that a person must meet three criteria to be given conscientious objector status. First, they must show that they conscientiously object to war in any form (Gillet v. United States), as the Court cited United States v. Seeger, where they ruled that (persons) must “show that this opposition is based upon religious training and belief as to the requirement that a registrant’s opposition to war must be sincere.” The Department of Justice hearing officer who examined Ali noted that “the registrant is sincere in his objection. The Department of Justice was wrong in advising the Board in terms of a purported rule of law that it should disregard this finding simply because of the circumstances and timing of the petitioner’s claim.” 

The biggest argument made in the Supreme Court’s opinion was that there was absolutely no way of knowing which of the three grounds offered in the DOJ letter the Appeal Board relied upon to deny Ali’s claim of conscientious objector status. It is imperative to note that the examiner who held hearings with Ali and his associates concluded that “it seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad . . . it is therefore our conclusion that registrant’s claim objections to participation in war insofar are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.” The examiner suggested that Ali be granted the status, however, the board denied Ali’s request without a statement of reason. 

Defining Precedent 

The Court relied heavily on Sicurella v. United States to emphasize the importance of moral and ethical objections to war. In Sicurella, the Court held that an error in an advisory letter from the DoJ did not require a reversal of a criminal conviction because there was a ground on which the Appeal Board might have properly denied a conscientious objector claim. The Court noted that “it is impossible to determine exactly which grounds the Appeal board decided, the integrity of the Selective Service System demands, at least, that the government not recommend illegal grounds.” 

The opinion from Sicurella is nothing new, it stems from Stromberg v. California, 283 U.S. 359, where the Court reversed a conviction for violating a California law that contained three separate clauses, finding one clause that violated the U.S. Constitution. Chief Justice Charles Evan Hughes mentioned that, “It is impossible to say under which clause of the statute the conviction was obtained . . . thus if any of the clauses in question is invalid under the Federal Constitution the conviction cannot be upheld.” That is a similar stance that Chief Justice Burger took in this opinion, because of the lack of evidence and grounds, it became harder to validate an erroneous decision made by the board. 

The Supreme Court unanimously voted to reverse the Court of Appeals decision. The Court noted that because the Appeal Board did not provide a reason for denying Ali the exemption. The main reasoning behind the judgment is that even though Ali did meet two of the criteria, it was unclear to what ground the Appeal Board used to deny Ali, therefore the previous conviction could not be sustained.

The Impact of the Case

Because of Clay v. United States, Americans have the opportunity to deny and object to being the subjects of a draft by meeting certain criteria such as health reasons, have dependent children, and now be a conscientious objector. Muhammad Ali’s bravery to stand up for what he believed in changed the course of history. And this Supreme Court case has given people with religious and moral obligations to object to such war. No one should ever be obligated to fight in war that goes against their morality. Clay v. United States is a pillar of civil liberties being protected by the Supreme Court, in part due to the fighting spirit of Louisville’s very own Muhammad Ali.

The Right to Bear Arms is Integral to the Fight for Freedom

Introduction

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This amendment to the Constitution is the basis of great public debate. Amid rising gun violence and school shootings, many have argued for more restrictions on this right–some have argued for its abolition. These cries intensify as we enter an already violent and deadly summer. In contrast, others have become even more defensive of their rights, feeling as though the violence proliferating news cycles and public thought may serve as an impetus for the confiscation of a liberty they hold near. The right to bear arms is a fundamental right included in the Constitution to keep the government from oppressing the people. Not all people have been able to enjoy this liberty throughout our history, and they have been oppressed because of it. For those people, the Second Amendment must be protected.  

Origins of the 2nd Amendment

The founders of the United States were committed to the people’s right to bear arms. The Federalists, who were in favor of a strong federal government, and the anti-federalists, who were not, both saw the right to bear arms as fundamental to the preservation of liberty. This was seen as a two-pronged protection: a public protection from government abuse and a private protection of self defense from other individuals who pose an immediate threat to one’s safety. The root of this doctrine can be traced back to English political theorists like William Blackstone and Thomas Hobbes who viewed the right as inherent to humanity–one meant to be protected, but not conferred by the government.

The political parties of post-revolution America disagreed on how to protect the right to bear arms in the Constitution. The anti-federalists felt an explicit clause in the Constitution was necessary to protect the integral right. The Federalists believed this was unnecessary, because the power of the federal government was already restricted to that provided for in the Constitution. During the ratification process, a compromise was reached in state conventions to ratify the Constitution as written assuming it would be amended to specifically protect individual rights and liberties, including the right to bear arms. 

At this time in history, militias were an important political consideration. These troops, composed of self-armed everyday citizens, were seen to be the people’s greatest check on the power of a standing army. The anti-federalists, who were primarily from the South, also believed militias were the best way to quell potential slave rebellions. The fear of slave revolts sprung from the Haitian Revolution: the first time formerly enslaved people in the New World fought for and won their independence. Anti-federalists wanted militias to be under state control to ensure they would be responsive to this threat. Unfortunately, this consideration is responsible for the 2nd Amendment’s odd phrasing, specifically the first two clauses, “A well regulated militia, being necessary to the security of a free State,”  

Phrasing the amendment like this has led to challenges that it is outdated, as militias are no longer relevant in American society. It has also cultivated arguments that the right to bear arms is not an individual right. But those who wrote the amendment did not see it this way. The militia was open to all white males of age, which fit their definition of universal. George Mason, one author of the Second Amendment, said during debate over the amendment, “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” Mason was a slave owner, so he would know. 

Guns, Gun Control, and the Fight for Freedom

Gun control laws are nothing new. Throughout American history, they have been used to keep Black people disarmed. Before Emancipation, slaves were not allowed to possess firearms. Even free Black men, who were not considered citizens under U.S. law, were not allowed to own guns. Florida went as far as deputizing groups of white men to search the homes of slaves and free men to seize weapons–those Black men found with guns were “summarily punished” without the privilege of a trial.  After most slaves were freed and nominally granted the rights of citizenship, states passed “Black Codes” explicity banning Black people from owning guns. 

When Congress passed the Civil Rights Act of 1870 that banned explicit legal discrimination, states passed taxes on gun transactions that had the same effect on gun ownership as poll taxes had on voting rates. These laws didn’t mention race, but Southern policymakers knew Black people were poor, so charging them to enjoy their rights effectively eliminated them. Poor white people were protected via “Grandfather clauses.” These clauses made exceptions to taxes and other requirements of eligibility if a person’s grandfather had possessed the right: obviously no slaves or free Black men, who would have been grandfathers to those new citizens, possessed those rights.   

It is no coincidence that Black people have simultaneously been oppressed and gunless. Removing arms from a people removes their means to alter or abolish a government that oppresses them. Beginning during the Civil Rights Movement, Black people began to realize the importance of their Second Amendment rights. Groups like the Black Panthers organized themselves with firearms so they could “police the police”, who were abusing citizens in Black communities. Malcolm X and his collaborators were consistently armed. They saw guns as crucial for community self-defense from abuse and preparation for potential revolution. Even Dr. Martin Luther King, Jr. owned an arsenal of weapons at one point. 

The Black Panthers explained their support of the right to bear arms in their Ten Point Program, the group’s founding document, like this, “The Second Amendment to the Constitution of the United States gives a right to bear arms. We therefore believe that all Black people should arm themselves for self-defense,” adding, “We will protect ourselves from the force and violence of the racist police and the racist military by whatever means necessary.” When lawmakers in California heard of the militia in 1968, they moved quickly to introduce a gun control bill to disarm the Panthers. The group traveled, armed, to the state capitol to protest the bill. Then-governor Ronald Reagan happened to be present for the protest. After seeing those organized and armed Black men, the legislature passed the bill on a bipartisan basis. Reagan signed the bill into law with the ironic support of the NRA. 

The Black Panthers protest the Mulford Act before its passage at the California Statehouse in Sacramento in 1968. 

These freedom fighters all understood, and experienced firsthand, that no government could be trusted to protect their people. This has not changed. Governments are the same now they were then. In fact, they have only grown in their power and effectiveness. Guns, like the government, are a necessary evil to keep the state in its place and defend against violence. The fact that weapons have advanced so quickly is even more a reason to protect gun rights. The more advanced the military’s weapons are, the more advanced the people’s weapons must be. Many say it would be impossible for lowly citizens to defeat the full might of America, but America lost in Korea, Vietnam, and was chased out of Afghanistan. All the weapons in the world could not exterminate those guerilla fighters armed with heart and guns. 

Guns in America are here to stay, and  that’s a good thing. The people possess a powerful check on an overbearing, oppressive government. As Malcolm X said, “The Constitution of the United States of America clearly affirms the right of every American citizen to bear arms. And as Americans, we will not give up a single right guaranteed under the Constitution.”

2022 Louisville Mayoral Election

On May 17, both the Republican and Democratic parties will be holding a primary for the mayoral election scheduled in November. Our current Mayor, Greg Fischer, is term limited and cannot run again for Mayor. LPR interviewed three candidates, Colin Hardin, Tim Findley, and Craig Greenberg, with full interviews here on our YouTube. Below is a short review of some of the major candidates. 

Craig Greenberg

Greenberg, a former CEO of 21c Museum Hotels, is focused on making Louisville a safer place for its residents, attracting new business and investments, and revitalizing Louisville’s urban areas. Greenberg envisions developing all areas of Louisville, paying special attention to neighborhoods that have previously been overlooked. He has been on a quest to run through every neighborhood in Louisville, and at the time of writing this article he has run through 621 out of 623 precincts in Louisville. Greenberg is considered a front runner in the upcoming election, and he recently survived an alleged assassination attempt that took place in his office, an incident he says shook him to his core and refocused his campaign on public safety and fighting gun violence. 

Tim Findley

Findley, a pastor born and raised in Newberg, has worked in various faith-based liaison positions with local and state government. Findley was vocal during the 2020 racial justice protests in Louisville and seeks to make Louisville a safer, more prosperous, and less divided city. He has a bold new vision for Louisville that is based on his work as a community leader. Universal Pre-K and Universal Basic Income are two examples of his ambitious vision for our city. 

Shameka Parrish-Wright

Parrish-Wright, an activist and nonprofit leader, strives to be a candidate “for the people” with a progressive agenda that includes eliminating cash bail. Parrish-Wright, a longtime community advocate, has also been a victim of gun violence, and advocates for stricter gun laws at the state and local level. Her public safety policies focus on gun control and economic progress as she seeks to develop affordable housing while not pricing residents out of their homes. Parrish-Wright did not respond to our interview request. 

David Nicholson

Nicholson, the current Jefferson County District Court Clerk, has also done nonprofit work. Nicholson is a more moderate candidate, and he is very experienced with local and state government. His campaign has focused on continuing to work towards larger goals such as economic improvement and a reduction in homelessness. 

Colin Hardin

One of the candidates interviewed by LPR, Hardin is a restaurant employee who decided to run for Mayor because he believes that traditional politicians have failed our city. Hardin is best described as progressive with the linchpins of his policy being the legalization of drugs and enfranchisement of former felons.

Bill Dieruf

Dieruf, a Republican candidate who campaigns on a less partisan platform and has advocated for nonpartisan local elections, has spent 10 years as the Mayor of Jeffersontown, a smaller city within Louisville. His agenda focuses on expanding programs that were successful in Jeffersontown, such as substance abuse treatment programs, to benefit the whole city of Louisville. His main focus is public safety, and he seeks to build a police department that citizens and police officers can trust.