Legal Advocacy at Its Finest

As a law student, I aspire to balance a fulfilling career with legal advocacy, taking on causes pro bono for those who lack the means to seek justice.  That is why I seek inspiration from the thousands of lawyers and jurists around the world who dedicate themselves to giving a legal voice to the voiceless — often at great risk and sacrifice.

Fortunately, I have no shortage of examples to follow, most recently and dramatically in the form of Saif-ul-Mulook, a Pakistani lawyer who saved his client from certain death, and who now faces death threats as a result. As the South China Morning Post reported:

After saving condemned Christian Asia Bibi from the gallows in Pakistan, her lawyer says he is facing the wrath of Islamist extremists – and wonders who will save him. But despite the threats against him, Saif-ul-Mulook says he regrets nothing, and will continue his legal fight against intolerance.

Mulook’s latest victory saw the freeing of Asia Bibi – a Christian woman convicted of blasphemy, who spent nearly a decade on death row – after the Supreme Court overturned her conviction on Wednesday.

[…]

The defence of Bibi was just the latest in a long line of controversial cases taken up by the barrister.

In 2011, Mulook was the lead prosecutor against Mumtaz Qadri over the assassination of Punjab governor Salman Taseer – a prominent critic of the country’s blasphemy laws and supporter of Bibi.

Qadri – one of Taseer’s bodyguards – gunned down his boss in broad daylight, citing the governor’s calls for reform of the blasphemy laws as his motive.

Mulook said he took on the case as others cowered, fearing reprisals from extremists. His prosecution resulted in the conviction and subsequent execution of Qadri, who was feted by Islamists and later honoured with a shrine on the outskirts of Islamabad.

If this man can brave violent extremism to save the lives of those condemned by both public opinion and an unjust legal system, I am pretty sure I can stay true to my goal.

United States v. Wong Kim Ark

United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.

WongKimArkPlaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.

Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.

The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.

By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.

However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.

Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:

Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.

Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.

The Rights of Immigrants in the U.S.

How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014): Continue reading

Happy 150th Anniversary to the Fourteenth Amendment

Today the Fourteenth Amendment to the U.S. Constitution turns 150; as it happens, it is the same day that President Donald Trump will nominate a new Supreme Court justice to replace Anthony Kennedy, whose three-decade tenure in the court included many refinements and defenses of the often-beleaguered and contentious amendment.

More from The Atlantic:

Ratified in 1868, the Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the Court, and for nearly a century it protected economic liberty alone. Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.

Of the five sections that make up the amendment, the one most often in contention is the first, which reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Given the context of its passage, this language is very significant, as The Atlantic again explains:

After the Civil War, many of the former Confederate states passed laws known as the “Black Codes,” which sharply limited the rights of former enslaved people. In response, on July 9, 1868, Congress ratified the Fourteenth Amendment, which guarantees equal protection under the law and also denies any state the right to deprive people of liberty without due process.

Only five years later, the Supreme Court eviscerated the amendment in the 5–4 Slaughterhouse Cases decision. As drafted by the Ohio congressman John Bingham, the amendment was intended to require states as well as the federal government to respect the fundamental liberties guaranteed by the Bill of Rights.

A decade later, in a lopsided 8–1 decision, the Court struck down the Civil Rights Act of 1875, which banned discrimination in public accommodations and transportation. Finally, in 1896, the Court upheld the doctrine of “separate but equal” in Plessy v. Ferguson, standing aside as the South constructed the Jim Crow regime. Justice John Marshall Harlan provided the only dissent. In one of the most famous passages in the history of Supreme Court opinions, he wrote: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

At the same time that the Court turned away from the Framers’ vision of equal civil rights, it invoked the Fourteenth Amendment to protect economic liberties, such as freedom of contract. This period is remembered as the Lochner era, named after a 1905 decision striking down a maximum-hour law for bakers in New York. It culminated in decisions in the early 1930s that struck down the core of Franklin D. Roosevelt’s New Deal.

I remember learning a lot of this in my constitutional law class, and being quite surprised at how immediately resisted and controversial the amendment was, even to the courts. It is even more disconcerting to learn that it would be until fairly recently in American history that the Fourteenth Amendment was enacted as its framers ostensibly intended:

It wasn’t until Brown v. Board of Education in 1954 that the Court resurrected the Fourteenth Amendment’s promise of racial equality, overturning Plessy and attacking school segregation. It struck down state laws banning interracial marriage in Loving v. Virginia. And it upheld landmark civil-rights laws like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. While the Court stopped short of guaranteeing equal funding for education, it did much to attack the jurisprudential foundation of Jim Crow.

At the same time, Chief Justice Earl Warren’s Court resurrected John Bingham’s vision of national enforcement of fundamental rights—most notably, by extending the protections of the Bill of Rights to the states, thereby safeguarding free speech, religious liberty, the right to counsel, and the right to be free of unreasonable searches and seizures.

More controversially, the Warren Court laid the foundation for rights not explicitly mentioned in the text of the Constitution, such as the right to privacy. In later years, the Supreme Court would build on these privacy decisions to issue decisions such as Roe v. Wade—which led to a conservative backlash against the Court.

These competing visions of economic liberty, racial equality, and personal autonomy came to a head in 1987. Justice Lewis Powell—the swing justice on Warren E. Burger’s Court—resigned. President Ronald Reagan, nearing the end of his second term, sought to place his enduring stamp on the Court by nominating the conservative legal intellectual Robert Bork. Following a bruising battle, the Senate rejected the Bork nomination, in part because he refused to recognize a constitutional right to privacy. When Anthony Kennedy embraced the right to privacy, the Senate unanimously confirmed him.

While perhaps not as well known as the first ten amendments enshrined as the Bill of Rights, the implications of the Fourteenth Amendment — and how it will be applied, broadened, or restricted — are vast, especially in light of the replacement of one of its greatest proponents.

With Kennedy leaving the Court, the future of this 150-year-old amendment is at stake. His successor will determine whether the Supreme Court interprets the amendment as allowing or prohibiting laws and policies regulating abortion, marriage, voting rights, and affirmative action. Also at stake are the scope of the Bill of Rights’ protections for free speech, gun rights, religious liberty, freedom from unreasonable government searches and seizures, and economic liberty. Strong constitutional arguments can be made for both sides of all these issues, and Justice Kennedy often held the decisive vote. His successor could determine the shape of the Fourteenth Amendment until its 200th anniversary in 2038.

What are your thoughts?

Louis Brandeis

On this day in 1916, Louis Brandeis became the first Jewish person to be appointed to the U.S. Supreme Court, where he would serve until 1939.

800px-brandeisl

Born to immigrants fleeing antisemitism from what was then the Austrian Empire, he graduated Harvard Law at only 20 years old, with what is rumored to be the highest GPA in the school’s history.

As early as 1890, he helped develop the concept of a “right to privacy” and rallied against big banks, powerful corporations, monopolies, political corruption, and mass consumerism, all of which he felt were anathema to American values. As an attorney, he devoted most of his time to public causes, earning the moniker of the “People’s Lawyer” for his insistence on working pro bono in order to take on the most important issues of the day. He was also dubbed the “Robin Hood of the law” for his fight against railroad monopolies, defense of workers’ rights, and the conceptualization of the newly created Federal Trade Commission, which protected consumers from unfair business practices. He was also recognized for developing the “Brandeis Brief,” which relied on expert testimony from people in other professions to support his case, setting a new precedent in evidence presentation.

Brandeis’ nomination to the Court was so fraught that, for the first time in its history, the Senate Judiciary Committee held a public hearing on it. According to fellow Justice William O. Douglas, it was controversial because Brandeis was a “militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible… [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” Indeed, opponents regarded him as an anti business “radical” and “agitator” who lacked the “dispassionate temperament” needed to be a judge. Blatant anti semitism was, of course, also a factor. But enough people came to his defense that he won the nomination 47 to 22.

Ultimately, Brandeis became one of the most influential figures ever to serve on the Court, his opinions recognized by legal scholars as some of the “greatest defenses” of freedom of speech and the right to privacy ever written by a Justice. Throughout my first year of law school, I came across many of his brilliant opinions, many of them lonely dissents in the face of familiar uphill battles against privacy violations — see his prescient dissenting opinion in Olmstead v. United States (1928):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

The Anniversary of Separate But Equal

On this day in 1896, the U.S. Supreme Court ruled in the landmark case Plessy v. Ferguson that racial segregation in public transportation was constitutional under the “separate but equal” doctrine.

The effects were immediate: already significant disparities in funding for segregated schools widened, flying in the face of the vague doctrine. States that had successfully integrated blacks quickly adopted legislation that reversed the progress made during Reconstruction. These segregation laws would eventually become known as  the Jim Crow system. Continue reading

The Problem With How We Treat Drug Addicts

The United States is facing an opioid and heroin epidemic that is killing and harming record numbers of people; more people died of overdoses in 2014 than in any other year on record.

One of the latest and most troubling images of this problem was a widely circulated photo of a couple passed out in their car with their four year old left watching from the back city. The City of East Liverpool, Ohio saw fit to share the photo on its Facebook profile to “show the other side of this horrible drug”. Continue reading

Space Law

When it comes to space exploration, law is probably furthest consideration from anyone’s mind. But an article in Foreign Policy examines the importance of developing a more sophisticated, comprehensive legal framework to govern human activities beyond Earth. A rather obscure U.N. agency, joined by similarly lesser known experts and institutions, recently convened a special session on this matter. Continue reading

Six Alternatives To Policing

While law enforcement of some form or another is as old as humanity, the use of an organized, permanent police for to maintain order emerged only around two centuries ago. This, along with mounting scrutiny and debate regarding the effectiveness of the law enforcement system, has led some, like Rolling Stone’s José Martín, to question whether police are even necessary.

It seems like a rash, if not unthinkable, claim; police are taken for granted in just about every place where stability and rule of law exist. It is an institution most people consider to be a given in civilized society, let alone something whose existence should be questioned. What would be the alternative?

Well, Martín lays out at least six of them, all of which have been proven effective, or at least feasible, to some degree. Continue reading