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Zobel v Williams, an Alaska equal protection and right to travel case... someone needs to use it

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Zobel v Williams, an Alaska equal protection and right to travel case... someone needs to use it

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FindLaw’s United States Supreme Court case and opinions.

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FindLaw’s searchable database of United States Supreme Court decisions since

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How presidents have acted on immigration-- From Eisenhower to Obama

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How presidents have acted on immigration-- From Eisenhower to Obama

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Immigration policy determines who may become a new citizen of the United States or enter the country as a temporary worker, student, refugee, or permanent resident. The federal government is responsible for setting and enforcing most immigration policy, while states primarily assume a supportive role. The executive branch, in particular, has wide authority over immigration policy.

In his first 100 days as president, Donald Trump issued three executive orders calling for the construction of a wall along the U.S.-Mexico border, penalties against sanctuary jurisdictions, a temporary halt to refugee admissions, and the suspension of visas to individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days-for which a revised executive order was issued in March after the first was challenged in court. The revised order removed Iraq from the above list of countries.

The Department of Homeland Security also issued guidance memos on how to implement Trump's executive orders, calling for additional Border Patrol agents and prioritizing criminal prosecutions for immigration offenses committed at the border.

At the start of his presidency, Trump identified deporting individuals with criminal records who are residing in the country without legal permission and ending visa program abuse as two policy areas he would quickly address.

Immigration policy in Trump's first year

See also: Timeline of federal policy on immigration, 2017-2020

On November 20, 2017, Acting Secretary of Homeland Security Elaine Duke announced the termination of the Temporary Protected Status (TPS) designation for Haiti that allowed Haitians to live and work in the United States after the 2010 earthquake devastated the island. Haitians living in the U.S. will have until July 22, 2019, to return to Haiti or apply for lawful immigration status in the U.S., if eligible. The delay in termination was designed to give those living in the U.S. time to obtain travel documents and make other arrangements for departure.

The decision to terminate the program was made based on a review that showed improved conditions in Haiti. According to the Department of Homeland Security, "The decision to terminate TPS for Haiti was made after a review of the conditions upon which the country's original designation were based and whether those extraordinary but temporary conditions prevented Haiti from adequately handling the return of their nationals, as required by statute. Based on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable statute, the current TPS designation must be terminated."

Temporary Protected Status (TPS) is a program that lawfully allows a group of persons temporary refuge in the United States due to a humanitarian crisis. According to the Department of Homeland Security, "Under a provision of the Immigration Act of 1990, the Attorney General may designate nationals of a foreign state to be eligible for TPS with a finding that conditions in that country pose a danger to personal safety due to ongoing armed conflict or an environmental disaster. Grants of TPS are initially made for periods of 6 to 18 months and may be extended depending on the situation."

November 1, 2017: Trump calls on Congress to end Diversity Lottery after terrorist attack

Trump also tweeted, "The terrorist came into our country through what is called the 'Diversity Visa Lottery Program,' a Chuck Schumer beauty. I want merit based."

The Diversity Lottery was established in 1990 to issue visas to nationals of countries from where few immigrants have come to the United States in the past. Through the program, about 50,000 diversity immigrant visas are made available each year. The program is referred to as a lottery because individuals are randomly selected from a group of registrants to apply for a visa. Those selected for visas enter the country as lawful permanent residents, or Green Card holders, and may live and work in the country on a permanent basis.

October 24, 2017: Restrictions on refugee admissions expire; new guidelines in place

According to The Associated Press, the administration will conduct a more in-depth review for refugees from 11 countries. The administration did not identify the 11 countries.

September 27, 2017: Trump administration limits number of refugees to be admitted to the U.S. to 45,000

On September 27, 2017, the Trump administration notified Congress that it would allow no more than 45,000 refugees into the United States during fiscal year 2018. According to The Hill, it is "the lowest cap ever set for resettlement." Before the announcement, the number of refugee admissions had not been set below 67,000.

A Trump administration official said that the number was chosen to make sure that all refugees are properly vetted. The official said, "The safety and the security of the American people is No. 1, and we want to make sure no one is allowed through who would endanger the safety of the American people."

According to The Hill, "The U.S. will take in as many as 19,000 refugees from Africa next fiscal year, officials said, while admitting a maximum of 17,500 from the Middle East and South Asia. As many as 5,000 refugees from East Asia will be resettled, along with 2,000 from Europe and 1,500 from Latin America and the Caribbean."

On September 24, 2017, President Donald Trump issued updated guidelines to his March 6, 2017, executive order. The March 6 order temporarily suspended entry into the United States for individuals from Syria, Iran, Libya, Somalia, Sudan, and Yemen and suspended refugee admissions to the United States for 120 days. The updated guidelines outlined new travel restrictions that vary by country on certain individuals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

In a statement, Trump said, "Following an extensive review by the Department of Homeland Security, we are taking action today to protect the safety and security of the American people by establishing a minimum security baseline for entry into the United States. We cannot afford to continue the failed policies of the past, which present an unacceptable danger to our country. My highest obligation is to ensure the safety and security of the American people, and in issuing this new travel order, I am fulfilling that sacred obligation."

The updated guidelines outlined the following restrictions by country:

Chad: "The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended."

Iran: "The entry into the United States of nationals of Iran as immigrants and as nonimmigrants is hereby suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements."

Libya: "The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended."

North Korea: "The entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended."

Somalia: "The entry into the United States of nationals of Somalia as immigrants is hereby suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States."

Syria: "The entry into the United States of nationals of Syria as immigrants and nonimmigrants is hereby suspended."

Venezuela: "Notwithstanding section 3(b)(v) of this proclamation, the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures -- including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations -- and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended. Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current."

Yemen: "The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended."

The March 6, 2017, order expired on September 24, 2017. The new rules were expected to take effect on October 18, 2017. On October 20, 2017, U.S. District Court Judge Derrick Watson issued a preliminary injunction against the restrictions, preventing them from going into effect. On November 13, 2017, the Ninth Circuit Court of Appeals issued a partial stay of that injunction, allowing the restrictions to be enforced unless an individual has a bona fide relationship to the United States.

U.S. State Department outlines new requirements for visa holders

Previously, visa holders were required to abide by their stated plans for one month. The new rule does not apply to individuals from the 38 countries that participate in the Visa Waiver Program; citizens of these countries may enter the United States without a visa at all.

Trump administration ends DACA

New Byrne criminal justice grant requirements for cities and states

"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes," Sessions said when detailing the new policy. The previous policy, which had been put in place by the Obama Administration in July 2016, required jurisdictions to prove that they were not preventing local law enforcement from enforcing federal immigration law and gave noncompliant jurisdictions time to adjust their policies.

Lawsuit from Chicago

On August 7, 2017, the City of Chicago filed suit in an effort to prevent implementation of new criteria. The city contended that the new criteria were unconstitutional. In filing for a preliminary injunction preventing enforcement of the new grant criteria, the city argued that the government cannot deny JAG grants to the city as the grants were based on a statutory formula created by Congress, and that both the president and the Justice Department lacked the constitutional authority to alter Congress' requirements for awarding the grants. Chicago expected to receive $3.2 million in JAG grants this year to purchase new police vehicles and equipment.

On September 15, 2017, U.S. District Judge Harry Leinenweber ordered a preliminary injunction to block the new criteria. In his ruling, Leinenweber said, "The court finds that the city has established that it would suffer irreparable harm if a preliminary injunction is not entered." The injunction applies nationwide because Leinenweber concluded that the issues presented by Chicago could also apply to other cities.

Lawsuit from California

On August 14, 2017, the city of San Francisco and the state of California filed separate but coordinated lawsuits against the Department of Justice alleging that the new grant requirements are detrimental to public safety and violate the U.S. Constitution. The lawsuits challenge the requirements that federal agents be given access to correctional facilities and that the Department of Homeland Security be given 48 hours' notice before the release of individuals wanted by immigration authorities, arguing that these conditions do not have a basis in federal law. California receives $28 million in public safety funds through the program each year and San Francisco receives $1.5 million.

DHS delays implementation of International Entrepreneur Rule

On July 11, 2017, the U.S. Department of Homeland Security issued a rule that delayed implementation of an Obama administration rule related to international entrepreneurs. The rule would have allowed, under certain conditions, entrepreneurs from foreign countries to enter the United States for 30 months to establish a startup business. To be eligible, entrepreneurs had to either raise at least $250,000 from American investors or receive at least $100,000 in grants from American federal, state, and local government entities. Such entries would have occurred under DHS's parole authority, through which individuals who do not meet visa requirements may be allowed entry at the discretion of the secretary of homeland security.

The rule was originally slated to go into effect on July 17, 2017. The new notice from DHS delayed implementation until March 14, 2018. DHS stated that the reason for the delay was to consider the rule in light of President Trump's executive order Border Security and Immigration Enforcement Improvements, which directed the secretary of homeland security to exercise parole authority on a case-by-case basis and "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." DHS also stated that delaying the rule would give the department the opportunity to receive public comments on a proposal to rescind the rule.

John Kelly rescinds Deferred Action for Parents of Americans (DAPA) policy

On June 15, 2017, then-U.S. Secretary of Homeland Security John Kelly rescinded a policy enacted during the Obama administration that suspended the removal of individuals residing in the country without legal permission who were the parents of U.S. citizens. The policy was known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The policy was placed on hold by federal courts as part of a lawsuit by the state of Texas and was never implemented. June 15 was the deadline for both parties to decide how to move forward in the case; since the policy was rescinded, the case became moot.

A similar policy for individuals residing in the country without legal permission who were brought to the United States as children was left in tact. This policy was called Deferred Action for Childhood Arrivals (DACA).

ICE 2017 immigration-related arrests up nearly 38 percent over 2016 arrests
For an overview of all executive and legislative actions taken on immigration under the Trump administration, click here.
Policy areas

Government officials and influencers on immigration

Border security

In his first address to Congress on February 28, 2017, President Donald Trump discussed the enforcement of immigration laws and border security:

"

By finally enforcing our immigration laws, we will raise wages, help the unemployed, save billions of dollars, and make our communities safer for everyone. We want all Americans to succeed - but that can't happen in an environment of lawless chaos. We must restore integrity and the rule of law to our borders.

"

Reuters reported on February 9, 2017, that a Department of Homeland Security internal report found the construction of a wall along the U.S.-Mexico border could cost $21.6 billion and take 3.5 years to construct. Trump tweeted on February 11, 2017, "I am reading that the great border WALL will cost more than the government originally thought, but I have not gotten involved in ... the design or negotiations yet." He continued, "When I do, just like with the F-35 FighterJet or the Air Force One Program, price will come WAY DOWN!"

During a press conference on January 11, 2017, Trump said that construction of a wall along the United States' southern border would begin "immediately" after he was inaugurated and that Mexico would pay for it through a reimbursement. "We're going to build a wall. I could wait about a year and a half until we finish our negotiations with Mexico, which will start immediately after we get to office. But I don't want to wait. Mike Pence is leading an effort to get final approvals through various agencies and through Congress for the wall to begin. I don't feel like waiting a year or year and a half. We're going to start building. Mexico, in some form, and there many different forms, will reimburse us and they will reimburse us for the cost of the wall," Trump said. He added that the form of the reimbursement would more likely be a tax than a payment.

In December 2016, the Trump transition team asked for records from the Department of Homeland Security regarding border wall and barrier construction along the Canadian and Mexican borders, immigration detention facilities, and aerial surveillance programs. The transition team also requested information about all immigration-related executive orders issued by President Barack Obama. On the campaign trail, Trump said that he intended to rescind Obama's executive orders on immigration, including the Deferred Action for Childhood Arrivals program.

Individuals residing in the U.S. without legal permission

In an interview with the Associated Press on April 21, 2017, Trump said that the deportation of individuals brought into the U.S. illegally as children was not a priority of his immigration policies. Trump said that his administration was "not after the dreamers, we are after the criminals." When asked to comment on the deportation of Juan Manuel Montes, who qualified for deferred deportation, the previous week, Trump said that Montes' case was different. He did not provide additional details.

Trump discussed his vision for a new immigration bill on February 28, 2017, telling reporters at the White House that he wanted to permit some individuals residing in the U.S. illegally to remain in the country, working and paying taxes. The bill would not include a path to citizenship, although Trump indicated there could be an exception for children brought illegally into the country. "The time is right for an immigration bill as long as there is compromise on both sides," he said.

In an interview with TIME released in December 2016, Donald Trump indicated that he would create some relief for individuals brought to the United States illegally as children. "We're going to work something out that's going to make people happy and proud. They got brought here at a very young age, they've worked here, they've gone to school here. Some were good students. Some have wonderful jobs. And they're in never-never land because they don't know what's going to happen," he said.

In an interview with 60 Minutes on November 13, 2016, Trump said that immigration would be one of his top three priorities at the start of his presidency. Trump said he planned to target criminals to deport. "What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate. But we're getting them out of our country, they're here illegally. After the border is secured and after everything gets normalized, we're going to make a determination on the people that you're talking about who are terrific people," he said. Trump also said he would accept fencing along portions of the United States-Mexico border, but added that in "certain areas, a wall is more appropriate. I'm very good at this, it's called construction."

Visa and immigration restrictions

On November 21, 2016, Trump released a video message summarizing six priorities for his administration in its first 100 days. On immigration, Trump said that he would "direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker."

Individuals residing in the U.S. without legal permission

Individuals residing in the U.S. without legal permission

It was announced on December 8, 2016, that Trump had selected Andy Puzder, the chief executive of CKE Restaurants Holdings Inc., to serve as secretary of labor. In a July 14, 2016, op-ed for The Wall Street Journal, Puzder discussed immigration reform: "Legal immigrants are an asset to the country. We believe that deporting 11 million people is unworkable, and we hope in the end Mr. Trump comes to this same conclusion. Deportation should be pursued only when an illegal immigrant has committed a felony or become a 'public charge.'"

Immigration law enforcement

Sanctuary jurisdictions

Attorney General Jeff Sessions announced on March 27, 2017, that sanctuary jurisdictions would lose federal funding if they did not comply with 8 U.S.C. § 1373, which governs communications between government agencies and immigration services. He noted that any jurisdiction applying for a Department of Justice grant would have to certify compliance with this law. "The Department of Justice will also take all lawful steps to claw-back any funds awarded to a jurisdiction that willfully violates Section 1373," Sessions added.

Visa and immigration restrictions

During his confirmation hearing on January 10, 2017, U.S. Sen. Jeff Sessions (R-Ala.), Trump's nominee for U.S. attorney general, opposed a sweeping ban on Muslims entering the U.S. "I have no belief and do not support the idea that Muslims as a religious group should be denied admission to the United States," Sessions said. He said, however, that religion could be considered when reviewing visa applications since some individuals' beliefs, he asserted, are at odds with protecting the safety of Americans.

Visa and immigration restrictions

In April 2006, Sonny Perdue signed into law the Georgia Security and Immigration Compliance Act, which restricted who could receive public services in the state. His campaign website said, "The new law requires citizenship verification for individuals receiving any public services to ensure they are legally eligible to receive those services. It also requires citizenship verification of state employees and employers with state contracts and subcontracts."

March 9, 2017: Politico reported that Sen. Cory Gardner (R-Colo.), the chair of the National Republican Senatorial Committee, opposed the construction of a wall along the U.S.-Mexico border. He said, "As far as the wall goes, I believe we have to have border security, but I do think billions of dollars on a wall is not the right way to proceed." He suggested security personnel and an electric fence as possible alternatives to a wall for border security.

March 8, 2017: Members of the House Judiciary Committee indicated that the EB-5 immigrant investor program-which allows individuals who invest $1 million in the U.S. or $500,000 in high unemployment areas to obtain a green card-should be altered or discontinued at the end of April. Rep. Jim Sensenbrenner (R-Wis.) said, "The days of last-minute extensions and continuing resolutions are over. Let me repeat that: No more extensions in CRs." Rep. John Conyers (D-Mich.) similarly said, "I must reiterate to achieve the necessary reforms to the EB5 programs, there is no substitute to a meaningful legislative solution, and absent significant reform, either regulatory or legislative, I will not be able to support continued authorization of this program." Proposals to modify the program included raising the minimum investment threshold from $500,000 to $1.35 million and narrowing the requirements for what qualifies as a high unemployment area.

February 11, 2017: Rep. Luke Messer (R-Ind.) sent a letter to Trump asking him to issue an order to prevent immigrants residing in the country illegally from benefitting from the child tax credit. Messer said, "Most Americans are astonished to learn that each year billions of taxpayer dollars are given out to people who are in our country illegally. This is just one example of how our broken tax and immigration systems continue to incentivize immigrants to come here illegally. It's long past time to change it." In January 2017, Messer introduced HR 363 to "ensure that only taxpayers with a valid Social Security Number are able to claim the Child Tax Credit and the Additional Child Tax Credit."

February 7, 2017: Sens. Tom Cotton (R-Ark.) and David Perdue (R-Ga.) announced the Reforming American Immigration for Strong Employment (RAISE) Act, which would reduce legal immigration by 50 percent. The bill would eliminate immigration preferences for certain categories of extended and adult family members, end the Diversity Immigrant Visa Program, and limit permanent refugee resettlement to 50,000 individuals per year.

January 30, 2017: Senate Minority Leader Chuck Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) led a rally, along with other congressional Democrats, in front of the Supreme Court to oppose Trump's executive orders on immigration. "This order is against what we believe in in America. The order will make us unsafe. The order will make us inhumane. And the order will make us less of America because this order is what America is all about. It will make us unsafe because it will encourage those who are lone wolves as they get more and more isolated, which is our greatest danger," Schumer said.

January 29, 2017: U.S. Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) issued the following joint statement, in part, in opposition to Trump's executive orders on the refugee admission program and immigration:

"

Our government has a responsibility to defend our borders, but we must do so in a way that makes us safer and upholds all that is decent and exceptional about our nation.

"

November 14, 2016: U.S. Rep. Mo Brooks (R-Ala.) said that he did not believe House Speaker Ryan's immigration policy was "consistent with what is in the best interest of America." Brooks voted to elect Ryan as the speaker of the House in 2015 after Ryan pledged not to introduce any major immigration legislation while President Barack Obama (D) was in office.

December 19, 2016: City and county officials in Los Angeles, California, announced the creation of a $10 million legal fund for immigrants facing deportation. "We don't know how far the new administration will go when it comes to our nation's immigration policy, but we've all heard the rhetoric, the dangerous rhetoric of the election. And we are ready to support people who can't afford or who don't realize they might need a lawyer," Eric Garcetti, the city's mayor, said. Chicago Mayor Rahm Emanuel also vowed to create a $1 million fund for legal services and San Francisco Mayor Ed Lee pledged $7.5 million in grants to fund immigration-related services.

Recent news

The link below is to the most recent stories in a Google news search for the terms Donald Trump Immigration. These results are automatically generated from Google. Ballotpedia does not curate or endorse these articles.

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Federal policy on immigration, 2017-2020 - Ballotpedia

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Immigration policy determines who may become a new citizen of the United States or enter the country as a temporary worker, student, refugee, or permanent resident. The federal government is responsible for setting and enforcing most immigration policy, while states primarily assume a supportive role.

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Facts of the case

The Chinese Exclusion Acts denied citizenship to Chinese immigrants. Moreover, by treaty no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens who resided in the United States at the time. At age 21, he returned to China to visit his parents who had previously resided in the United States for 20 years. When he returned to the United States, Wong was denied entry on the ground that he was not a citizen.

Question

Is a child who was born in the United States to Chinese-citizen parents who are lawful permanent residents of the United States a U.S. citizen under the Citizenship Clause of the Fourteenth Amendment?

Conclusion

Because Wong was born in the United States and his parents were not "employed in any diplomatic or official capacity under the Emperor of China," the Citizenship Clause of the Fourteenth Amendment automatically makes him a U.S. citizen. Justice Horace Gray authored the opinion on behalf of a 6-2 majority, in which the Court established the parameters of the concept known as jus soli-the citizenship of children born in the United States to non-citizens. Justice Joseph McKenna took no part in the consideration or decision of the case.

Cite this page

"United States v. Wong Kim Ark." Oyez, www.oyez.org/cases/1850-1900/169us649. Accessed 11 Nov. 2019.

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The Chinese Exclusion Acts denied citizenship to Chinese immigrants. Moreover, by treaty no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens who resided in the United States at the time.

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History of Immigration/Effect on economic class

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History of Immigration/Effect on economic class

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Go to Chapter One Section Go to Book World'sReview

The Case Against Immigration
By Roy Beck

Chapter One: A Nation of (Too Many) Immigrants?

Since 1970, more than 30 million foreign citizens and their descendants have been added to the local communities and labor pools of the United States.(1) It is the numerical equivalent of having relocated within our borders the entire present population of all Central American countries.

Demographic change on such a massive scale--primarily caused by the increased admission of legal immigrants--inevitably has created winners and losers among Americans. Based on opinion polls, it appears that most Americans consider themselves net losers and believe that the United States has become "a nation of too many immigrants. What level of immigration is best for America, and of real help to the world? Although we often hear that the United States is a nation of immigrants, we seldom ask just what that means. It can be difficult to ask tough questions about immigration what we see nostalgic images of Ellis Island, recall our own families' coming to America, or encounter a new immigrant who is striving admirably to achieve the American dream.

But tough questions about immigration can no longer be avoided as we enter a fourth decade of unprecedentedly high immigration and struggle with its impact on job markets, on the quality of life and social fabric of our communities, and on the state of the environment.

Efforts to discuss these questions alarm some business interests and others who support high immigration. They often express shock that Americans could consider violating what they claim to be the country's tradition of openness by cutting immigration. But they misunderstand U.S. history. It is the high level of immigration during the last three decades that has violated our immigration tradition. The anti-immigration tenor of the times is not nearly so much because Americans have changed as that immigration has changed.

Over the long span of history from the founding of the nation in 1776 until 1965, immigration varied widely but averaged around 230,000 a year. This was a phenomenal flow into a single country, unmatched in world history. It should be noted that during large parts of that period, the United States--with vast expanses of virtually open land--was much better able than today to handle 230,000 newcomers annually. Suddenly in the 1970s and 1980s, at the very time that the majority of Americans were coming to the conclusion that the U.S. population had grown large enough, immigration soared above American tradition, averaging more than 500,000 a year. And it has been running around 1 million a year during the 1990s.

Until recently, policymakers and politicians of every stripe had ignored what public opinion polls found to be the public's growing dissatisfaction with the abnormally high level of immigration. Majority public opinion can be shallow, fleeting, and wrong, but an honest look at major trends during the recent mass immigration shows that ordinary Americans' concerns can hardly be dismissed as narrow and unenlightened:

* Whole industries in the 1970s and 1980s reorganized to exploit compliant foreign tabor, with the result that conditions have deteriorated for all workers in those industries.

* Long trends of rising U.S. wages have been reversed.

* Poverty has increased.

* The middle-class way of life has come under siege; income disparities have widened disturbingly.

* Aggressive civil rights programs to benefit the descendants of slavery have been watered down, co-opted, and undermined be- cause of the unanticipated volume of new immigration. A nearly half-century march of economic progress for black Americans has been halted and turned back.

* The culture--and even language--of many local communities has been transformed against the wishes of their native inhabitants. Instead of spawning healthy diversity, immigration has turned many cities into caldrons of increased ethnic tension and divisiveness.

* A stabilizing U.S. population with low birth rates (like other advanced nations) has become the most rapidly congesting industrialized nation in the world (resembling trends in Third World countries). Vast tracts of remaining farmland, natural habitat, and ecosystems have been destroyed to accommodate the growing population. Environmental progress has been set back by the addition of tens of millions of new polluters.

* Numerous organized crime syndicates headquartered in the new immigrants' home countries have gained solid beachheads of operations. Law enforcement agencies have been confounded just as they thought they were near victory over the crime organizations that other ethnic groups had brought with them during the Great Wave.

It is common when discussing those negative trends to focus on individual immigrants, skills, education, and morals, their country of origin, culture, and race. If one side points out that some immigrants are prone to crime and destructive behavior, others note that most immigrants arrive with high motives, good character, and laudable behavior. Some observers fear that the volume of non-european immigration threatens to swamp America's cultural heritage; others welcome an ever more multicultural society. Nonetheless, the chief difficulties that America faces because of current immigration are not triggered by who the immigrants are but by how many they are.

The task before the nation in setting a fair level of immigration is not about race or some vision of a homogeneous white America; it is about protecting and enhancing the United States' unique experiment in democracy for all Americans, including recent immigrants, regardless of their particular ethnicity. It is time to confront the true costs and benefits of immigration numbers, which have skyrocketed beyond our society's ability to handle them successfully.

* * *

The cumulative effect of years of high immigration has taken a while for Americans to comprehend. But in the 1990s, many Americans have awakened to a rather startling realization: The unrelenting surge of immigration above traditional levels is transforming communities throughout the United States into something their residents often don't like or quite recognize as their own.

The unprecedented flow of immigration has dramatically reshaped the social and ecological landscape up and down America's coasts, and it has spilled over into the hinterlands, carving new economic and culturalchannels in the Ozarks Hills, Wisconsin's little northwoods cities, Atlanta's outlying towns, the Rocky Mountains, and the Kansas-Nebraska-Iowa plains. Millions of new immigrants now pulse through the economic arteries of most urban areas, from New York City to Dodge City, and of an increasing number of non-urban regions, from North Carolina fishing villages to North Arkansas mountain hamlets.

None of this has been inevitable. Legal immigration into this country has quadrupled over the traditional American level for only one reason: Congress and the president made it happen.

Legal immigration could be stopped with a simple majority vote of Congress and a stroke of the president's pen--as early as next month, if they desired. Or it could be increased just as quickly. The volume of legal immigration is entirely at the discretion of Washington.

Nobody ever intended for such an onslaught when the immigration laws were changed in 1965; the huge increase in numbers was an accident. But for nearly three decades during various efforts to control illegal immigration, Congress stood by as the much larger legal immigration soared ever upward and as citizen opposition rose correspondingly.

Finally in 1993 and 1994, a few lawmakers of both parties--but outside their parties' leadership--proposed major cutbacks (of two-thirds to three-fourths) in annual legal immigration. They shocked everybody, including themselves, by drawing almost 100 supporters from among the 535 members of Congress.

Then, in 1995, more modest reductions (of about one-third) were proposed independently by two key Republican subcommittee chairmen, Senator Alan Simpson of Wyoming and Representative Lamar Smith of Texas, and by a bi-partisan federal commission led by former Democratic congresswoman Barbara Jordan. President Bill Clinton endorsed the concept. The emerging centrist consensus, however, quickly drew strong opposition from several top Republican congressional leaders (especially free-market libertarians) and from the Democrats' liberal wing, all of whom wished to protect current high immigration levels or increase them.

The United States entered 1996 with Congress assessing the effects of the unprecedented foreign influx of the last thirty years and trying to determine how drastically annual immigration should be cut.

Despite the loud outcry from immigration advocates that something draconian was being considered, a one-third reduction would leave legal admissions still near the level of the 1880-1924 Great Wave. Even after a one-third cut in 1996, the number of immigrants would be triple the average who entered during America's golden immigration era between 1925 and 1965. In that time of far lower immigration, immigrants enjoyed more popularity and a higher and quicker success rate than at any other time in American history.

Given the three decades of inertia that had made any rollback seem impossible, the leaders who proposed cutting legal immigration by around one-third have to be lauded. But they have approached theissue by starting with the current unprecedented immigration peak, determining that it is harmful to the country, and then asking what can be cut. If instead they were designing immigration policy based on what is best for the American people, they would start at zero and ask what level of immigration actually is needed by the nation. The final number in that exercise would be far lower-and far closer to what the American people most desire.

The country's grateful reaction to a cut of merely one-third might be similar to that of residents of a Mississippi River town after a flood has crested in the upstairs bedroom and then receded to the living room downstairs: "Conditions arc improved, but we're still flooded."

This self-inflicted flooding of the past three decades has undercut ambitious efforts during the same period to create a society of more fairness and opportunity for all Americans. Strong evidence amasses that the levels of immigration after 1965 have eroded the country's ability to achieve some of its most cherished goals. Many politicians and pundits have said it is hyperbolic to suggest that the single phenomenon of renewed mass immigration could so negatively affect the country. But major demographic upheavals, like the Baby Boom after World War II, touch every aspect of a nation's fife and reverberate for decades. Certainly, the more than 30 million people added by immigration policy during the last three decades qualify as a major demographic phenomenon.

There have been many impediments to reaching some of our nation's highest goals. Immigration has not been the only cause--and not usually the major cause--of various societal problems. But research from numerous sources converges to show that the new massive volume of immigration has played an important."spoiler" role in efforts to reach at least four of America's goals: (1) a middle-class society; (2) equal opportunity for the descendants of slavery (3) harmonious and safe communities; and (4) a protected and restored natural environment.

A MIDDLE-CLASS SOCIETY

Today, Americans live in a society of widening economic disparity, with an increasing gulf between poor and rich, and fewer and fewer people in the middle class. This is a reversal of our egalitarian dreams of a society in which all who were milling could find a job, and in which even those who performed the lower-skilled tasks needed by society would earn an income that could support a family in modest dignity.

The Council of Economic Advisors told the president in 1993 that "immigration has increased the relative supply of less educated labor and appears to have contributed to the increasing inequality of income. . . ."(2) That was consistent with a United Nations report on the effect of immigration on the industrialized nations. It concluded that immigration reinforces existing gaps between rich and poor.(3)

Nonetheless, immigration definitely brings some benefits to a nation. In fact, most Americans may have benefitted as consumers because the immigrants have kept the price of labor lower, which may have lcd to lower prices than otherwise would have occurred. But consumers also tend to be laborers drawing those depressed wages. According to the UN report, it is only for the upper crust that the financial benefits of immigration tend to outweigh the losses. And that serves to increase income disparity.

Who wins and who loses? A glance through the roster of immigration winners quickly finds business owners who have followed a low-wage labor strategy. Land developers, real estate agents, home mortgage officials, and others who tend to profit from population growth are winners. Owners of high-tech industries have lowered their costs by importing skilled immigrants who will work at lower wages than college-educated Americans. People who can afford nannies, gardeners, and housekeepers have benefitted from lower costs. Americans who prize cultural diversity are among the non-financial winners. Others have won by having the security, prestige, or pay of their jobs enhanced by the high immigrant flow. That would include immigration lawyers, refugee resettlement agency personnel, officials of immigrant-advocacy groups, and educators and other social services employees who work with immigrants.

Unfortunately, the roster of immigration losers is much larger and includes some of America's most vulnerable citizens: poor children, lower-skilled workers, residents of declining urban communities, large numbers of African Americans, the unskilled immigrants who already are here and face the most severe competition from new immigrants, and even some of America's brightest young people, who lose opportunities to pursue science-based careers because of some corporations' and universities' preferences for foreign scientists and engineers.

Also among the losers from immigration are all Americans who prefer to live in a more middle class and less economically polarized society. Under low-immigration conditions from 1925 to 1965, the United States enjoyed increasing egalitarianism. But by the middle of the 1980s, it had a larger gap between the rich and poor than could be found in any other major industrialized nation, according to the U.S. Census Bureau. Nearly every community receiving substantial numbers of immigrants has experienced increased disparities among its population and diminished cohesiveness. Even many Americans who would gain financially from high immigration into their community have come to oppose it because of the changes it would bring; they don't want to create a community of rising disparities, even if they would make more money. Consider the recent examples of Clay County, Alabama, and Clay County, Iowa.

In Alabama, the county chamber of commerce helped organize business, civic, and educational leaders in 1995 to discourage an Arkansas corporation from using immigrant labor to expand its existing poultry-processing operations in rural Clay County. Asked if it wasn't a little strange to have a chamber of commerce opposing local economic and population growth, executive director Carolyn Dunagan said: "I don't know about other place's, but here when it comes to a choice between quality of life and growth quality of life is the most important." The Clay County leaders acted out of two primary concerns: (1) The importation of immigrants likely would hurt the county's black workers, harming their already modest economic position; and (2) the impoverished, Deep South county was having enough trouble trying to create a cohesive culture out of its black and white residents, without adding foreign cultures and languages into the mix and contributing to a population growth unlikely to pay its own way.

Mayor Irving Thompson of Ashland, the county seat, told me that many townspeople believed the corporation was preparing to recruit immigrant workers in response to recent protests by local black employees over working conditions. "The fear," high school history teacher Mark Tucker said, "is that the next time black workers walk out over a labor problem, they'll be replaced by Third World workers." It is not a frivolous fear; replacing black employees--more than any other Americans--with foreign workers has become somewhat commonplace around the country under Washington's expanded immigration programs.

In Clay County, Iowa, the economic enticements were greater. An outside corporation sought a zoning change to allow it to start up operations in an abandoned plant in Spencer, the county seat. An enraged citizenry crowded into the high school fieldhouse in an emotional demonstration before the city council, winning unanimous approval to block the corporation.

Why would they kiss good-bye 350 new industrial jobs for the city of 11,000? In a word: immigration. The proposed operation was in an industry with a long track record of drawing foreign workers. Local advocates for the new jobs accused opponents of being racist. Opponents, though, noted that the community had freely embraced refugees over the years, and that their concern about an influx of foreign workers was that the experience of other cities showed an unacceptable change in a previously egalitarian way of life.

The most telling reason Spencer citizens gave for blocking the new jobs was: "We don't want to become another Storm Lake."

Until the 1980s, Storm Lake--less than an hour's drive to the south--had been like a twin to Spencer: neighboring agricultural county seat, same size, similar history and economy, a shared bucolic, safe, midwestern lifestyle with excellent schools, and the same epic prairie sky of uninhibited expressiveness. But a corporation similar to the one just blocked in Spencer moved into Storm Lake and immediately began attracting foreign workers. The steady flow soon turned Storm Lake into one of the scores of new immigration hubs created by federal immigration mandates since 1965.

The unrequested changes to fife in Storm Lake followed patterns similar to those in many new-immigration cities. Overnight, Storm Lake schools were dealing with the cultural ramifications of a student body that now is one-fifth immigrant (predominantly Laotian and Mexican) and with the challenges of teaching in different languages. New facilities have been needed to handle the growing population of high-fertility foreign families with their low incomes and low tax payments. Some Storm Lake residents have lost their jobs to immigrants; more have seen their wages depressed because of the loosening of the labor market and the immigrants' lower expectations. The immigrants have tended to occupy housing units in higher densities than natives and have settled in enclaves, changing the character of neighborhoods and causing some elementary schools to be disproportionately filled with newcomers. For the first time, parts of town became undesirable in the real estate market based on which schools had high populations of students who didn't speak English. A community which previously had little reason to think in terms of haves and have-nots became a starkly stratified society.

Especially unsettling--but to be expected in a community of wide disparities, transience, and separate cultures--has been the deterioration in Storm Lake residents' sense of safety. The crime rate soared above that of the rest of Iowa. It is four times higher than crime in Spencer, its former twin.

To a visitor from a coastal city, where the national trend toward economic stratification has been visible longer, Storm Lake still can seem like a delightful place to live. But to those who knew the city before, the changes have been difficult to accept. "It breaks my heart to see what has become of my hometown," said Mary Galik, a Storm Lake native who moved to Spencer.

Given a choice, there was nothing about the creation of sharp disparities in the Storm Lake population that Spencer's citizens wanted to risk duplicating. Even main street merchants did not oppose efforts to block the new industry. As business owners, they favored the new plant because it would have increased their retail sales, explained Bob Rose, program manager of the merchants' economic growth organization. But as parents and grandparents, the merchants did not look favorably on economic development that might endanger what they saw as Spencer's special midwestern small-town culture and quality of fife.

Nationally during the last two decades of high immigration, the richest 20 percent of Americans have enjoyed some economic improvement and the richest I percent have-reaped strong increases of income. But the average wage for most American groups has declined.

No scholar suggests that increased immigration is the chief culprit in America's overall decline in wages. The economist Paul Krugman, of Stanford University, says the obvious central cause of the disappointing economic conditions for the American majority since 1973 is the drastic drop in the rate of growth in output (productivity) per worker. But the experts are uncertain about precisely why productivity growth has dropped so low and stayed there.(4) Clearly, though, Congress picked a terribly inappropriate period of U.S. history to be increasing the number of U.S. workers through immigration.

At the same time immigration was snowballing in the 1970s, the labor market was being flooded with baby boomers who were reaching employment age and with a big increase in married women seeking jobs. Based on recent research by several economists, it would appear that the big increases in the labor supply probably contributed to the drop in productivity growth, and definitely worked against efforts to improve it after it did drop.

Research by the economist Paul Romer explains that the problem with a large increase in the number of workers is that it tends to result in a lower amount of capital investment per worker. It is the capital investment per worker, along with technology, that is the most important ingredient in increasing per capita output, according to Romer's study, published in the authoritative National Bureau of Economic research journal. Thus, immigration during the last two decades, by greatly increasing the labor supply, would seem to be undermining capital investment per worker, the very process that could send wages upward again.

Romer's research flies in the face of today's immigration advocates, who insist that the federal government must continue to run a high-immigration program in order to boost the economy. Adding workers usually does increase the nation's overall economic output, but not by enough to improve the circumstances of the average worker. "In fact, what the data suggest is that labor productivity responds quite negatively to increases in the labor force," Romer maintains. Looking across American history, Romer found that when the growth in number of workers went up (through high immigration and fertility), there was a decline in the growth of per capita output--just as has occurred during this latest time of high immigration and depressed wages.(5)

Studies by Harvard's Jeffrey G. Williamson have found that during those same periods of high immigration, the United States became less of a middle-class society and experienced its highest degree of economic disparity--just as is happening during the current period of high immigration.(6)

It isn't difficult to see how an abundant supply of new foreign workers could retard wage increases. U.S. Secretary of Labor Robert B. Reich fretted in 1994 that constant supplies of foreign labor have enticed many employers to continue relying on low-paid, low-skilled jobs, instead of making technological improvements and then training workers for more productive, higher-paying jobs.(7)

A U.S. Bureau of Labor Statistics study concluded that immigration was responsible for roughly half the decline in real wages for native-born high school dropouts in the fifty largest metropolitan areas during the 1980s. The study found that immigration accounted for 20 to 25 percent of the increase in the wage gap between low-skill and high-skill workers.(8) And economists Timothy J. Hatton and Jeffrey G. Williamson declared in 1994 that all standard mainstream. Economic models predict migration will tend to lower wages where immigrants settle.(9)

Because the United States has had a surplus of workers, even the profits of the small recent growth in per capita productivity have not been passed on to the workers. Krugman has noted that when the number of workers surges, "the way that a freely functioning labor market ensures that almost everyone who wants a job gets one is by allowing wage rates to fall, if necessary, to match demand to supply." Most of the profits from recent increased productivity have gone to Americans in the top 1 percent of income.(10) According to the research of immigrant economist George Borjas, high immigration during the 1980s helped facilitate a massive redistribution of wealth--more than $100 billion a year--from American workers to the upper class.(11)

The trend in this country during the previous decades of low immigration had long been toward higher wages, less poverty, and a larger middle class. Beginning with the shortage of workers during World War II, more and more Americans found that the toil of their labor earned them middle-class status. The number of Americans in poverty declined for decades. That happy circumstance came to a halt in 1973. Except for minor variations, the number of impoverished Americans has been increasing ever since.

The United States now routinely violates what Washington policy analyst Norman Ornstein has concluded is an implicit, national bi-partisan compact. In words similar to Bill Clinton's during his first presidential campaign, Ornstein says the compact holds that "if people play by the rules, working hard and doing their jobs, they will not have to five in poverty."(12) But his contention has become increasingly difficult to uphold as inflation-adjusted wages have declined for Americans without college degrees and even many with degrees.

What to do about the millions of Americans mired in poverty or struggling just above it? "The best way to help these young unskilled workers is through supply-side interventions," maintains labor professor Robert M. Hutchens of Cornell University. Initiatives that limit immigration of workers "can promote an environment where academic underachievers have at least some opportunity for upward mobility," he adds.(13)

No studies suggest that halting immigration would immediately put middle-class wages into t-he pockets of a large percentage of today's poor. But America's poor and its working class are not among the net winners of an immigration policy that brings in people who can compete directly with them in the job market. If the nation desires a return to a more middle-class economy, it is difficult to understand why its government would allow more than a nominal flow of immigrants at this time.

&copy 1996 Roy Beck

Basic Books

Back to the Top

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WashingtonPost.com: The Case Against Immigration

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Go to Chapter One Section Go to Book World'sReview The Case Against Immigration By Roy Beck Chapter One: A Nation of (Too Many) Immigrants? Since 1970, more than 30 million foreign citizens and their descendants have been added to the local communities and labor pools of the United States.(1) It is the numerical equivalent of having relocated within our borders the entire present population of all Central American countries.

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Circuit Courts of Appeals: Immigration Cases International Material Conventions and Treaties 1951 Refugee ... Overview In the United States, the area of " Immigration Law" refers to the laws and ... enforcements dealing with immigration into the United States and the deportation of individuals from the United ...

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Professors specifically addressing Q1

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The Constitution in American Life - U6Q1: Rights, Limits and Revolution

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Refugee Admissions in the 1950s and 1960s

Major refugee admissions occurred outside the national origins quota system during the 1950s. The Refugee Relief Act (RRA) of August 7, 1953, and the amendments of August 1954, authorized the admission of 214,000 refugees from war-torn Europe and escapees from Communist-dominated countries. Thirty percent of the admissions during the life of the Act were Italians, followed by Germans, Yugoslavs, and Greeks.

The RRA originated as an Administration bill, and combined humanitarian concern for the refugees and escapees with international political considerations. Quoting from President Eisenhower's letter which accompanied the draft legislation:

"These refugees, escapees, and distressed peoples now constitute an economic and political threat of constantly growing magnitude. They look to traditional American humanitarian concern for the oppressed. International political considerations are also factors which are involved. We should take reasonable steps to help these people to the extent that we share the obligation of the free world."

In particular, the inclusion of the category of escapees from communist domination in this and subsequent refugee legislation reflected the preoccupations of this Cold War period. This concern was also a major factor in the admission of refugees from the unsuccessful Hungarian revolution of October 1956. A total of 38,000 Hungarian refugees were eventually admitted to the United States, 6,130 with RRA visas and the remainder under the parole provision of the Immigration and Nationality Act (INA).

The Act of September 11, 1957, sometimes referred to as the Refugee-Escapee Act, provided for the admission of certain aliens who were eligible under the terms of the Refugee Relief Act, as well as refugee-escapees, defined as persons fleeing persecution in Communist countries or countries in the Middle East. This was the basis for the definition of refugee incorporated in the INA from 1965 until 1980. A total of 29,000 entered under the temporary 1957 refugee provisions, led by Hungarians, Koreans, Yugoslavs, and Chinese.

During the 1960s, refugees from persecution in communist-dominated countries in the Eastern Hemisphere and from countries in the Middle East continued to be admitted, first under the Fair Share Law, enacted July 14, 1960, and subsequently under the INA. About 19,700 refugees entered under the 1960 legislation. Its primary purpose was to enable the United States to participate in an international effort to close the refugee camps which had been in operation in Europe since the end of World War II. U.S. participation was limited to one-fourth of the total number resettled.

Cuban refugees began entering the United States with the fall of the Batista government in 1959, and continued throughout the 1960s and, in smaller numbers, the 1970s. Approximately 700,000 Cuban refugees had entered the United States prior to a new influx which began in April 1980. The United States has accepted the Cubans as refugees from communism through a variety of legal means.

The INA Amendments of 1965 and their Aftermath

The October 1965 amendments to the 1952 Immigration and Nationality Act (INA) repealed the national origins quota system and represented the most far-reaching revision of immigration policy in the United States since the First Quota Act of 1921. In place of nationality and ethnic considerations, the INA amendments (P.L. 89 236; 79 Stat. 911) substituted a system based primarily on reunification of families and needed skills.

The circumstances which led to this major shift in policy in 1965 were a complex combination of changing public perceptions and values, politics, and legislative compromise. It can be argued that the 1965 immigration legislation was as much a product of the mid-1960s and the heavily Democratic 89th Congress which also produced major civil rights legislation, as the 1952 Act had been a product of the Cold War period of the early 1950s.

The 1965 amendments adopted an annual ceiling on Eastern Hemisphere immigration of 170,000 and a 20,000 per country limit. Within these restrictions, immigrant visas were distributed according to a seven-category preference system placing priority on family reunification, attracting needed skills, and refugees. The 1965 law also provided that effective July 1, 1968, Western Hemisphere immigration would be limited by an annual ceiling of 120,000 without per-country limits or a preference system.

The INA Amendments of 1976 (P.L. 94-571; 90 Stat. 2703) extended to the Western Hemisphere the 20,000 per-country limit and a slightly modified version of the seven category preference system. Legislation enacted in 1978 (P.L. 95 412; 92 Stat. 907) combined the separate ceilings into a single worldwide ceiling of 290,000 with a single preference system. The Refugee Act of 1980 (P.L. 96 212; 94 Stat. 102) eliminated refugees as a category of the preference system, and set the worldwide ceiling at 270,000, exclusive of refugees.

Since 1965, the major source of immigration to the United States has shifted from Europe to Latin America and Asia, reversing the trend since the founding of the nation. According to the Immigration and Naturalization Service (INS), Europe accounted for 50 percent of U.S. immigration during the decade fiscal years 1955 to 1964, followed by North America at 35 percent, and Asia at eight percent. In fiscal year 1988, Asia was highest at 41 percent, followed by North America at 39 percent , and Europe at 10 percent. In order, the countries exceeding 20,000 immigrants in fiscal year 1988 were Mexico, the Philippines, Haiti, Korea, India, mainland China, the Dominican Republic, Vietnam, and Jamaica.

These figures reflect a shift in both accessibility and conditions in the sending countries. For example, Asian immigration, which was severely limited prior to the 1965 amendments, subsequently has been augmented by the large number of Indochinese refugees adjusting to immigrant status outside the numerical limits. On the other hand, Irish immigration fell from 6,307 in fiscal year 1964 to 1,839 in fiscal year 1986, with 734 entering under the preference system and the majority entering as the immediate relatives of U.S. citizens. Ireland had been heavily favored under the national origins quota system.

Immigration History: The 1970s to the Present

The 1970s through 1990s: Immigration Issues, Review, and Revision

The patterns of immigration and the policy considerations relating to it in the 1970s resembled in some respects those of the 1950s after the enactment of the Immigration and Nationality Act. In both decades, the entry of aliens outside the provisions of the basic law--both illegally as undocumented aliens, and legally as refugees was increasingly the dominant pattern in immigration and the basis for the major issues confronting the Congress. Legislative response to the issue of refugees in 1980 and undocumented aliens in 1986 was followed in 1987 by a shift in congressional attention to legal immigration.

The 1981 report of the national Select Commission on Immigration and Refugee Policy contributed to congressional review of immigration issues. The sixteen-member Commission was created by legislation enacted in 1978 to study and evaluate immigration and refugee laws, policies, and procedures. Its basic conclusion was that controlled immigration had been and continued to be in the national interest, and this underlay many of its recommendations. The Commission's recommendations were summed up by Chairman Theodore Hesburgh in his introduction:

"We recommend closing the back door to undocumented, illegal migration, opening the front door a little more to accommodate legal migration in the interests of this country, defining our immigration goals clearly and providing a structure to implement them effectively, and setting forth procedures which will lead to fair and efficient adjudication and administration of U.S. immigration laws."

Refugees and the Refugee Act of 1980

Between 1975 and 1980, refugees and refugee-related issues dominated congressional concern with immigration more than they had since the years following World War II. Beginning with the fall of Vietnam and Cambodia in April 1975, this five-year period saw the admission of more than 400,000 Indochinese refugees, the enactment of major amendments to the Immigration and Nationality Act in the form of the Refugee Act of 1980, and the exodus from Mariel Harbor, Cuba, to southern Florida.

The 1980 refugee legislation was enacted in part in response to Congress's increasing frustration with the difficulty of dealing with the ongoing large-scale Indochinese refugee flow under the existing ad hoc refugee admission and resettlement mechanisms. By the end of the 1970s, a consensus had been reached that a more coherent and equitable approach to refugee admission and resettlement was needed. The result was the amendments to the Immigration and Nationality Act contained in the Refugee Act of 1980, enacted on March 17, 1980 (P.L. 96-212; 94 Stat. 102).

The Refugee Act repealed the limitations which had previously favored refugees fleeing communism or from countries in the Middle East and redefined refugee to conform with the definition used in the United Nations Protocol and Convention Relating to the Status of Refugees. The term refugee is now defined by the Immigration and Nationality Act as a person who is unwilling or unable to return to his country of nationality or habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The 1980 amendments made provision for both a regular flow and the emergency admission of refugees, following legislatively prescribed consultation with the Congress. In addition, the law authorized federal assistance for the resettlement of refugees.

Shortly after the enactment of the Refugee Act of 1980, large numbers of Cubans entered the United States through southern Florida, totaling an estimated 125,000, along with continuing smaller numbers of Haitians. The Carter Administration was unwilling to classify either group as refugee, and no action was taken on the special legislation sought by the Administration. Beginning in 1984, the Reagan Administration adjusted the majority of the Cubans to lawful permanent resident status under P.L. 89 732, 1966 legislation enacted in response to the Cuban refugee situation in the 1960s. However, the status of the Cuban/Haitian entrants was not resolved finally until enactment of the Immigration Reform and Control Act of 1986, which included special legalization provisions.

Illegal Immigration and the IRCA of 1986

Immigration legislation focusing on illegal immigration was considered and passed by the 99th Congress, and enacted as the Immigration Reform and Control Act (IRCA) of 1986 P.L. 99-603 (November 6, 1986; 100 Stat. 3359), consists primarily of amendments of the basic 1952 Immigration and Nationality Act (INA), amended (8 U.S.C. 1101 et seq.).

Reform of the law relating to the control of illegal immigration had been under consideration for 15 years, i.e., since the early 1970s. The 1986 legislation marked the culmination of bipartisan efforts both by Congress and the executive branch under four Presidents. As an indication of the growing magnitude of the problem, the annual apprehension of undocumented aliens by the Department of Justice's Immigration and Naturalization Service (INS) increased from 505,949 in 1972, the first year legislation aimed at controlling illegal immigration received House action, to 1,767,400 in 1986. In 1987, after the adoption of IRCA, INS apprehensions dropped by a third to 1,190,488.

The prospect of employment in the United States is an economic magnet that draws aliens here illegally. The principal legislative remedy proposed in the past, and included in the new law, is employer sanctions, or penalties for employers who knowingly hire aliens unauthorized to work in the United States. In order to avoid a major law enforcement problem dealing with aliens who established roots here before the change in policy, a legalization program was established that provided legal status for otherwise eligible aliens who had been here illegally since prior to 1982. Second, the legislation sought to respond to the apparent heavy dependence of seasonal agriculture on illegal workers by creating a 7-year special agricultural worker program, and by streamlining the previously existing H-2 temporary worker program to expedite availability of alien workers and to provide statutory protections for U.S. and alien labor.

Legal Immigration and
the Immigration Act of 1990

After enactment of the 1986 Immigration Reform and Control Act (IRCA), which adopted a major change in deterrence against illegal immigration, congressional attention shifted to legal immigration, including the 1965-adopted system of numerical limits on permanent immigration. This was an issue for a number of reasons. Concern had arisen over the greater number of immigrants admitted on the basis of family reunification compared to the number of independent non-family immigrants, and over the limited number of visas available to certain countries under the preference system. There was also concern about the growing visa waiting lists (backlogs) under the existing preference system and about the admission of immediate relatives of U.S. citizens outside the numerical limits.

Major legislation addressing these concerns passed the Senate and was introduced in the House in the 100th Congress (1987 to 1988). However, only temporary legislation addressing limited concerns passed both, leaving further consideration of a full-scale revision of legal immigration to the 101st Congress.

The Immigration Act of 1990 (IMMACT90) was signed into law as P.L. 101-649 by President Bush on November 29, 1990. It constituted a major revision of the Immigration and Nationality Act, which remained the basic immigration law. Its primary focus was the numerical limits and preference system regulating permanent legal immigration. Besides legal immigration, the eight-title Act dealt with many other aspects of immigration law ranging from nonimmigrants to criminal aliens to naturalization.

The legal immigration changes included an increase in total immigration under an overall flexible cap, an increase in annual employment-based immigration from 54,000 to 140,000, and a permanent provision for the admission of "diversity immigrants" from "underrepresented" countries. The new system provided for a permanent annual level of approximately 700,000 during fiscal years 1992 through 1994. Refugees were the only major group of aliens not included. The Act established a three-track preference system for family-sponsored, employment-based, and diversity immigrants. Additionally, the Act significantly amended the work-related nonimmigrant categories for temporary admission.

IMMACT90 (P.L. 101-649) addressed a series of other issues. It provided undocumented Salvadorans with temporary protected status for a limited period of time, and amended the Immigration and Nationality Act to authorize the Attorney General to grant temporary protected status to nationals of designated countries subject to armed conflict or natural disasters. It also authorized a temporary stay of deportation and work authorization for eligible immediate family members of the IRCA-legalized aliens, and made 55,000 additional visas available for them annually during fiscal years 1992 to 1994.

As a response to criticism of employer sanctions, IMMACT90 expanded the anti-discrimination provisions of the IRCA, and increased the penalties for unlawful discrimination. It significantly revised the political and ideological grounds for exclusion and deportation which had been controversial since their enactment in 1952.

Illegal Immigration Reform and Immigrant Responsibility Act

Background

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), enacted in 1996, resulted from the process of deliberating on the recommendations of the U.S. Commission on Immigration Reform established by President Clinton and the Congress to examine both legal and illegal immigration issues.

The Commission was chaired until her untimely death in 1996 by The Hon. Barbara C. Jordan who had served in the U.S. House of Representatives (D-TX) 1973-79, and was a professor at the Univ. of Texas-Austin 1979-96. The Commission's members included distinguished experts in immigration law and history and others with experience in national politics and business.

After a long and arduous effort to develop bipartisan legislation dealing with both reform of legal and illegal immigration, Congress narrowed its focus on illegal immigration provisions with a promise by many that they would return soon to the effort to reform legal immigration.

"Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave...For the system to be credible, people actually have to be deported at the end of the process."
(Barbara Jordan, February 24, 1995 Testimony to House Immigration Subcommittee)

The provisions of IIRAIRA were aimed at adopting stronger penalties against illegal immigration, streamlining the deportation (removal) process by curtailing the never-ending legal appeal process that was used by immigration lawyers to keep their clients in the United States until they found a sympathetic judge who would grand suspension of deportation (cancellation of removal). Other toughening provisions adopted in the same year aimed at curbing the ability of terrorists to use the immigration process to enter and operate in the United States and to restrict the use of public welfare benefits by new immigrants contrary to the intent of the immigration law.

"For our immigration policy to make sense, it is necessary to make distinctions between those who obey the law, and those who violate it."
(Barbara Jordan, address to United We Stand, America Conference, Dallas, TX, August 12, 1995)

Major Provisions of IIRAIRA

Authorized 5,000 additional Border Patrol agents by 2001 and included several hundred additional investigators to pursue employer sanctions violations, document fraud, and visa overstays.

Barred legal admission for removed illegal aliens (for 5 to 20 years depending on the seriousness of the immigration violation) and permanently barred admission for deported or removed aggravated felons.

Authorized a 14-mile-long triple fence at San Diego, California.

Authorized necessary funds to expand the "IDENT" program to include fingerprinting of all illegal and criminal aliens apprehended nationwide.

Facilitated deportation of criminal aliens by expanding the definition of aggravated felony to include crimes carrying a prison sentence of one year or more rather than time served.

Stopped the release of criminal aliens from custody prior to deportation.

Expedited the removal of inadmissible aliens by limiting judicial review.

Made excludable or deportable those aliens who falsely claim U.S. citizenship.

Required states to phase in, over six years, drivers' licenses and state-issued I.D. documents that are tamperproof and counterfeit-resistant.

Increased criminal penalties for document fraud and smuggling. Added alien smuggling and document fraud to RICO (anti-racketeering) offences and granted the INS the authority to use wiretaps for such investigations.

Required that sponsors of immigrants have income at least 25 percent above the poverty level and made affidavits of support by the sponsors legally binding.

Tightened the Attorney General's authority over special admissions by requiring "urgent humanitarian reasons or significant public benefit" as grounds for admittance, and allowed for such admissions only on a case-by-case basis.

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Major refugee admissions occurred outside the national origins quota system during the 1950s. The Refugee Relief Act (RRA) of August 7, 1953, and the amendments of August 1954, authorized the admission of 214,000 refugees from war-torn Europe and escapees from Communist-dominated countries.

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The nation stands alert, anxious about armed actions planned for Jan. 17 and Jan. 20 to contest the election of Joe Biden and Kamala Harris. The FBI has warned of the potential for armed demonstrators targeting legislatures, and extremist groups have made their intentions clear on message boards.

Last week we witnessed an insurrection, with white supremacists storming our nation's capital, some ready to take whatever actions they thought necessary to ensure their leader remained in power, despite decisive Electoral College and popular votes against him. The insurrectionists killed a police officer, brutally beat news reporters and other police officers, and chanted, "Hang Pence." The Capitol was breached, leadership were rushed to secret secure locations, congressional offices were stormed, and bombs were planted outside the offices of the Democratic and Republican National Conventions. Many members of Congress and staff and those charged with securing their safety feared for their lives. After a long summer of protesting to affirm to the nation that Black Lives Matter, we saw the Confederate flag on parade in the U.S. Capitol.

As the nation steels itself for the threat of repeat performances across the country, some have asked what states can do to protect their people and representatives. In particular, can weapons be banned at protests? In the ACLU's view, the answer is yes - so long as the ban is applied neutrally to all, without regard to the viewpoints of a march.

To be clear, what happened at the Capitol on Jan. 6 was not a protest, but a violent insurrection that left five dead and many more injured and endangered. Violence, true threats, and incitement have no place in the exchange of ideas and are not protected by the First Amendment.

But where the issue is a protest and one that is peaceful, can states nonetheless ban protesters from carrying guns? Yes.

The U.S. Supreme Court has held that the Second Amendment protects a right to possess a gun in one's home, but that right is not absolute. As the Supreme Court stated, it is not a "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Second Amendment permits "reasonable regulations" of arms. Indeed, the court was explicit that nothing in its opinion recognizing a right of individuals to bear arms "should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

We have longstanding laws to keep guns out of sensitive places like government buildings and airports. Visitors can't bring guns into the U.S. Capitol or the Supreme Court. In other jurisdictions, people can't bring a gun to polling sites during voting. Police confiscate any weapons that revelers bring to the National Mall on the Fourth of July every year. The rationale for these constraints is clear: Guns create safety risks that the state has a right to regulate. While some regulations of the possession and use of guns raise Second Amendment concerns, a ban on carrying weapons at a protest does not.

The result is the same under the First Amendment. To be sure, openly carrying a gun can send a message, but the government has long had the power to set limits on the time, place, and manner of assemblies. Such restrictions need only be reasonable and content-neutral, meaning that they apply equally to all, regardless of ideology, political affiliation, or message. The government can limit the hours and volume of protests held outside hospitals or schools, for example - as long as the rule applies without regard to the content of the speech.

Similarly, a ban on guns is a reasonable time, place, and manner restriction on a protest - provided that it is applied uniformly to all protests and all protesters. It's about safety, not expression.

Importantly, barring weapons at a protest doesn't stop gun owners from speaking about any topic. It doesn't stop speech in protest of the restriction, nor does it stop speech however odious or hateful. Those who seek to protest Donald Trump's loss in the November election are free to do so - as long as they do so peacefully. And states and local governments also have the authority to bar weapons at protests.

Our right to speech is about words, not weapons.

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What Does the ACLU Say About the Right to March While Armed?

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The nation stands alert, anxious about armed actions planned for Jan. 17 and Jan. 20 to contest the election of Joe Biden and Kamala Harris. The FBI has warned of the potential for armed demonstrators targeting legislatures, and extremist groups have made their intentions clear on message boards.

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Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. Such restrictions come in many forms, such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. Such regulations are frequently upheld and represent a common part of the regulatory landscape in most cities and counties. In this photo, a protestor pokes fun at protest signs. Regulations about the size and placement of such signs are content-neutral limitations frequently upheld in courts. (Image via Wikimedia Commons, CC BY 3.0)

Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity.

Such restrictions come in many forms, such as

imposing limits on the noise level of speech,

capping the number of protesters who may occupy a given forum,

barring early-morning or late-evening demonstrations, and

restricting the size or placement of signs on government property.

Such regulations or licensing laws that require parade or demonstration permits are frequently upheld and represent a common part of the regulatory landscape in most cities and counties.

Restrictions can survive First Amendment challenge under a 3-prong test

To survive First Amendment constitutional challenges, such restrictions must satisfy a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989).

1. The regulation must be content neutral.

2. It must be narrowly tailored to serve a significant governmental interest.

3. It must leave open ample alternative channels for communicating the speaker's message.

Restriction based on subject matter is not content-neutral

The first prong, requiring content neutrality, will be violated by any regulation that describes permissible expression in terms of its subject matter.

Police Department of Chicago v. Mosley (1972) provides an example of a time, place and manner regulation that failed the content-neutrality requirement. In Mosley an ordinance prohibited all picketing within 150 feet of any school building while classes were in session. However, picketing was allowed if the school was involved in a labor dispute.

Writing for the Court, Justice Thurgood Marshall observed that the ordinance "describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation thus slips from the neutrality of time, place, and circumstance into a concern about content. This is never permitted."

Mosley does not exemplify the only way that a speech restriction can violate the content-neutrality requirement. Even if the regulation does not, as in Mosley, expressly discriminate on the basis of subject matter, it can run afoul of the content-neutrality requirement if the circumstances surrounding its enactment or the history of its enforcement reveal a governmental intent to favor or punish particular messages.

Speech restrictions will be deemed content neutral, even if they impinge more severely on a particular speaker or message, so long as the government can credibly justify its regulation as serving purposes that have nothing to do with the content of speech.

Regulation must be narrowly tailored to promote substantial government interest

The second prong of Ward's three-prong test requires that the regulation must be narrowly tailored to serve a significant governmental interest. This narrow tailoring requirement is not nearly as stringent as its language would suggest. The Supreme Court has stressed that this prong does not require time, place, and manner restrictions to be the least restrictive or least intrusive means of achieving the government's end.

Instead, according to Ward, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."

This relaxed conception of narrow tailoring is vividly reflected in the case law. Regulations that fail this test invariably feature broad restraints on traditional forms of expressive activity - imposing, for example, sweeping prohibitions on parades, demonstrations, residential picketing, door-to-door leafleting, or public hand billing. The narrow tailoring requirement will certainly be violated by a categorical ban on any of the foregoing methods of expressive conduct. So, for example, an ordinance would violate the narrow tailoring requirement by banning parades anywhere within a city's central business district on all workdays because it would allow parades only when the downtown streets were bereft of onlookers.

Absent a categorical or substantial ban on a traditional method of expressive activity, courts routinely uphold time, place, and manner restrictions as satisfying the requirement of narrow tailoring.

Speaker must have alternative channels of communication

Under Ward's third prong, the regulation must leave open ample alternative channels for communicating the speaker's message.

Two different themes run through the cases that construe this requirement. First, the Supreme Court has shown a "special solicitude" for inexpensive methods of communication. Accordingly, a speech restriction may run afoul of this requirement if it precludes forms of expression that are much less expensive than feasible alternatives. Second, the ample alternative channels requirement most commonly arises when a speaker identifies one particular place as uniquely suited to conveying a message, but the government insists that the speaker take up position in an alternative location.

The basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.

In performing this analysis, a court should take account of the speaker's intended audience and the extent to which the chosen location contributes to his or her message. A speech restriction does not leave open ample alternative channels if the speaker is left unable to reach the intended audience.

In performing analysis of time, place and manner restrictions, a court should take account of the speaker's intended audience and the extent to which the chosen location contributes to his or her message. A good example of this is Million Youth March, Inc. v. Safir (S.D.N.Y. 1998), where New York City denied a permit request by the Nation of Islam to hold a massive rally in Harlem, insisting that the rally be held instead on Randall's Island. The Nation of Islam brought suit under the First Amendment, challenging the city's imposition of Randall's Island as the only permissible site for the rally. The court stressed that the Randall's Island alternative was constitutionally inadequate because it thwarted the plaintiff 's access to its target audience, the residents of Harlem. In this photo, participants at the Million Youth March react to a speech during the rally Saturday, Sept. 5, 1998, in the Harlem neighborhood of New York. (AP Photo/Adam Nadel, used with permission from the Associated Press)

Court ruled the city did not provide adequate alternative in Million Youth March case

A good example of this is Million Youth March, Inc. v. Safir (S.D.N.Y. 1998), where New York City denied a permit request by the Nation of Islam to hold a massive rally in Harlem, insisting that the rally be held instead on Randall's Island. Located in the middle of the East River between Manhattan and Queens, Randall's Island was inaccessible by bus or subway and was virtually uninhabited.

The Nation of Islam brought suit under the First Amendment, challenging the city's imposition of Randall's Island as the only permissible site for the rally. In an extensive and instructive three-prong analysis, a federal judge ruled that the city had violated the ample alternative channels requirement.

The court stressed that the Randall's Island alternative was constitutionally inadequate because it thwarted the plaintiff 's access to its target audience, the residents of Harlem, and because holding the rally in Harlem was part and parcel of the plaintiff's message - a message that focused on ways to improve the lives of African Americans.

As the foregoing discussion shows, proper time, place, and manner analysis requires careful attention to each of Ward's three prongs - and to the particular approach that courts have developed for each of those prongs.

It is important to note that the Ward test governs only time, place, and manner restrictions imposed by legislative bodies.

Court requires "stringent" scrutiny of injunctions that restrict speech

Judicial injunctions that impose content-neutral time, place, and manner restrictions are subject to a heightened form of intermediate scrutiny. Observing that "[i]njunctions . . . carry greater risks of censorship and discriminatory application than do general ordinances," the Supreme Court held in Madsen v. Women's Health Center, Inc. (1994) that appellate courts should subject content-neutral injunctions to more "stringent" First Amendment scrutiny than comparable legislation - that "when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous."

Announcing a new standard of review for judicially imposed time, place, and manner restrictions, the Court wrote,"[w]e must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." This effectively converts the second prong of Ward into a least restrictive means requirement.
This article was originally published in 2009. Kevin Francis O'Neill is an associate professor at Cleveland-Marshall College of Law where he teaches First Amendment, Evidence, Civil Procedure, and Pretrial Practice. His scholarship focuses on the Speech Clause of the First Amendment. Prior to entering academia, Mr. O'Neill served as the Legal Director for the American Civil Liberties Union of Ohio where he focused special attention on First Amendment issues, reproductive freedom, police misconduct, and government mistreatment of the homeless.
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Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. Such restrictions come in many forms, such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property.

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Pew Research Center statistics on immigration 

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Pew Research Center statistics on immigration 

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The U.S. has more immigrants than any other country in the world. Today, more than 40 million people living in the U.S. were born in another country, accounting for about one-fifth of the world's migrants in 2015. The population of immigrants is also very diverse, with just about every country in the world represented among U.S. immigrants.

Pew Research Center regularly publishes statistical portraits of the nation's foreign-born population, which include Based on these portraits, h historical trends since 1960. ere are answers to some key questions about the U.S. immigrant population.
How many people in the U.S. are immigrants? W hat is the legal status of immigrants in the U.S.?
The U.S. foreign-born population reached a record 43.2 million in 2015. Since 1965, when U.S. immigration laws replaced a national quota system, the number of immigrants living in the U.S. has more than quadrupled. Immigrants today account for 13.4% of the U.S. population, nearly triple the share (4.7%) in 1970. However, today's immigrant share remains below the record 14.8% share in 1890, when 9.2 million immigrants lived in the U.S.

Do all lawful immigrants choose to become U.S. citizens?
Most immigrants (76%) are in the country legally, while a quarter are unauthorized. In 2015, 44% were naturalized U.S. citizens.

Some 27% of immigrants were permanent residents and 5% were temporary residents. Another 24% of all immigrants were unauthorized immigrants in 2015. From 1990 to 2007, the unauthorized immigrant population tripled in size - from 3.5 million to a record high of 12.2 million. During the Great Recession, the number declined by 1 million and since then has leveled off. In 2015, there were 11 million unauthorized immigrants in the U.S., accounting for 3.4% of the nation's population.
Where do immigrants come from?
The decline in the unauthorized immigrant population is due largely to a fall in the number from Mexico - the single largest group of unauthorized immigrants in the U.S. Between 2007 and 2015, this group decreased by more than 1 million. Meanwhile, this decline was partly offset by a rise in the number from Central America, Asia and sub-Saharan Africa.

Not all lawful permanent residents choose to pursue U.S. citizenship. Those who wish to do so may apply after meeting certain requirements, including having lived in the U.S. for five years. In fiscal year 2016, 971,242 immigrants applied for naturalization. The number of naturalization applications has climbed in recent years, though the annual totals remain below those seen in previous years.
Who is arriving today?
Generally, most immigrants eligible for naturalization apply to become citizens. However, Mexican lawful immigrants have the lowest naturalization rate overall. Language and personal barriers, lack of interest and financial barriers are among the top reasons for choosing not to naturalize cited by Mexican-born green card holders, according to a 2012 Pew Research Center survey.

Mexico is the top origin country of the U.S. immigrant population. In 2015, 11.6 million immigrants living in the U.S. were from there, accounting for 27% of all U.S. immigrants. The next largest origin groups were those from China (6%), India (6%), the Philippines (5%) and El Salvador (3%).

By region of birth, immigrants from South and East Asia combined accounted for 27% of all immigrants, a share equal to that of Mexico. Other regions make up smaller shares: Europe/Canada (14%), the Caribbean (10%), Central America (8%), South America (7%), the Middle East (4%) and sub-Saharan Africa (4%).

I s the immigrant population growing? How many immigrants have come to the U.S. as refugees?
About 1 million immigrants arrive in the U.S. each year. In 2015, the top country of origin for new immigrants coming into the U.S. was India, with 110,000 people, followed by Mexico (109,000), China (90,000) and Canada (35,000).
Where do most U.S. immigrants live?
By race and ethnicity, more Asian immigrants than Hispanic immigrants have arrived in the U.S. each year since 2010. Immigration from Latin America slowed following the Great Recession, particularly from Mexico, which has seen net losses in U.S. immigration over the past few years.

Asians are projected to become the largest immigrant group in the U.S. by 2055, surpassing Hispanics. In 2065, Pew Research Center estimates indicate that Asians will make up some 38% of all immigrants, Hispanics 31%, whites 20% and blacks 9%.
How do immigrants compare with the U.S. population overall in education?
New immigrant arrivals have fallen, mainly due to a decrease in the number of unauthorized immigrants coming to the U.S. The fall in the growth of the unauthorized immigrant population can partly be attributed to more Mexican immigrants leaving the U.S. than coming in.

Looking forward, immigrants and their descendants are projected to account for 88% of U.S. population growth through 2065, assuming current immigration trends continue. In addition to new arrivals, U.S. births to immigrant parents will be important to future U.S. growth. In 2015, the percentage of women giving birth in the past year was higher among immigrants (7.4%) than among the U.S. born (5.8%). While U.S.-born women gave birth to over 3 million children that year, immigrant women gave birth to over 700,000.

Since the creation of the federal Refugee Resettlement Program in 1980, about 3 million refugees have been resettled in the U.S - more than any other country.
How many immigrants are working in the U.S.?
In fiscal 2016, a total of 84,995 refugees were resettled in the U.S. The largest origin group of refugees was the Democratic Republic of the Congo, followed by Syria, Burma (Myanmar), Iraq and Somalia. Among all refugees admitted in that fiscal year, 38,901 are Muslims (46%) and 37,521 are Christians (44%). California, Texas and New York resettled nearly a quarter of all refugees admitted in fiscal 2016.

Roughly half (46%) of the nation's 43.2 million immigrants live in just three states: California (25%), Texas (11%) and New York (10%). California had the largest immigrant population of any state in 2015, at 10.7 million. Texas and New York had about 4.5 million immigrants each.

In terms of regions, about two-thirds of immigrants lived in the West (35%) and South (33%). Roughly one-fifth lived in the Northeast (21%) and 11% were in the Midwest.
How well do immigrants speak English?
In 2015, most immigrants lived in just 20 major metropolitan areas, with the largest populations in New York, Los Angeles and Miami. These top 20 metro areas were home to 27.9 million immigrants, or 65% of the nation's total. Most of the nation's unauthorized immigrant population lived in these top metro areas as well.

Immigrants in the U.S. as a whole have lower levels of education than the U.S.-born population. In 2015, immigrants were three times as likely as the U.S. born to have not completed high school (29% vs 9%). However, immigrants were just as likely as the U.S. born to have a college degree or more, 31% and 30% respectively.

Educational attainment varies among the nation's immigrant groups, particularly across immigrants from different regions of the world. Immigrants from Mexico (57%) and Central America (49%) are less likely to be high school graduates than the U.S. born (9%). On the other hand, immigrants from South and East Asia, Europe, Canada, the Middle East and sub-Saharan Africa were more likely than U.S.-born residents to have a bachelor's or advanced degree.

Among all immigrants, those from South and East Asia (51%) and the Middle East (48%) were the most likely to have a bachelor's degree or more. Immigrants from Mexico (6%) and Central America (9%) were the least likely to have a bachelor's or higher.
How many immigrants have been deported recently?
In 2014, about 27 million immigrants were working in the U.S., making up some 17% of the total civilian labor force. Lawful immigrants made up the majority of the immigrant workforce at 19.5 million. An additional 8 million immigrant workers are unauthorized immigrants, a number little changed since 2009. They alone account for 5% of the civilian labor force.

Immigrants, regardless of legal status, work in a variety of different jobs, and do not make up the majority of workers in any U.S. industry. Lawful immigrants are most likely to be in professional, management, or business and finance jobs (37%) or service jobs (22%). Unauthorized immigrants, by contrast, are most likely to be in service (32%) or construction jobs (16%).
How many immigrants are apprehended at the U.S.-Mexico border?
Immigrants are also projected to drive future growth in the U.S. working-age population through at least 2035. As the Baby Boom generation heads into retirement, immigrants and their children are expected to offset a decline in the working-age population by adding about 18 million people of working age between 2015 and 2035.
How do Americans view immigrants and immigration?

Among immigrants ages 5 and older, half (51%) are proficient English speakers - either speaking English very well (35%) or only speaking English at home (16%).

Immigrants from Mexico have the lowest rates of English proficiency (31%), followed by Central Americans (33%) and immigrants from South and East Asia (54%). Those from Europe or Canada (76%), sub-Saharan Africa (75%), and the Middle East (61%) have the highest rates of English proficiency.

The longer immigrants have lived in the U.S., the greater the likelihood they are English proficient. Some 45% of immigrants living in the U.S. five years or less are proficient. By contrast, more than half (55%) of immigrants who have lived in the U.S. for 20 years or more are proficient English speakers.

Among immigrants ages 5 and older, Spanish is the most commonly spoken language. Some 44% of immigrants in the U.S. speak Spanish at home. The top five languages spoken at home among immigrants outside of Spanish are English only (16%), followed by Chinese (6%), Hindi (5%), Filipino/Tagalog (4%) and French (3%).
Corrections: An earlier version of this post gave an incorrect figure for total deportations in fiscal year 2016. The text and its corresponding chart, "U.S. deportations of immigrants slightly up in 2016," have been updated. Related posts: 5 key facts about U.S. lawful immigrants Key facts about black immigrants in the U.S. Also, the chart "Mexico, China and India are top birthplaces for immigrants in the U.S." has been updated to reflect the correct scale for figures. They are in millions. In addition, the note in a previous version of this chart incorrectly listed Mongolia as part of China.
Around 344,000 immigrants were deported from the U.S. in fiscal 2016, slightly up since 2015. Overall, the Obama administration deported about 3 million immigrants between 2009 and 2016, a significantly higher number than the 2 million immigrants deported by the Bush administration between 2001 and 2008.

Immigrants convicted of a crime made up the minority of deportations in 2015, the most recent year for which statistics by criminal status are available. Of the 333,000 immigrants deported in 2015, some 42% had criminal convictions and 58% were not convicted of a crime. From 2001 to 2015, a majority (60%) of immigrants deported have not been convicted of a crime.

The number of apprehensions at the U.S.-Mexico border has sharply decreased over the past decade, from more than 1 million in fiscal 2006 to 408,870 in fiscal 2016. In the first two quarters of fiscal 2017, which started Oct. 1, there have been about 199,000 border patrol apprehensions at the Southwest border, compared with 186,000 for the same period in 2016. Today, more non-Mexicans than Mexicans are apprehended at the border. In fiscal 2016, the apprehensions of Central Americans at the border exceeded that of Mexicans for the second time on record.

While immigration has been at the forefront of a national political debate, the U.S. public holds a range of views about immigrants living in the country. Overall, a majority of Americans have positive views about immigrants. Six-in-ten Americans (63%) say immigrants strengthen the country "because of their hard work and talents," while just over a quarter (27%) say immigrants burden the country by taking jobs, housing and health care.

Yet these views vary starkly by political affiliation. Among Democrats and Democratic-leaning independents, 82% think immigrants strengthen the country with their hard work and talents, and just 13% say they are a burden. Among Republicans and Republican-leaning independents, roughly as many (44%) say immigrants are a burden as say immigrants strengthen the country because of their hard work and talents (39%).

Americans also hold more positive views of some immigrant groups than others, according to a 2015 Pew Research Center immigration report. More than four-in-ten Americans expressed mostly positive views of Asian (47%) and European immigrants (44%), yet only a quarter expressed such views of African and Latin American immigrants (26% each). Roughly half of the U.S. public said immigrants are making things better through food, music and the arts (49%), but almost equal shares said immigrants are making crime and the economy worse (50% each).

Americans were divided on future levels of immigration. Nearly half said immigration to the U.S. should be decreased (49%), while one-third (34%) said immigration should be kept at its present level and just 15% said immigration should be increased.

Topics: Immigration Trends, Population Geography, Population Trends, Business and Labor, Education, Migration, Asian Americans, Immigration

1. Gustavo López is a research analyst focusing on Hispanics, immigration and demographics at Pew Research Center.

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The U.S. has more immigrants than any other country in the world. Today, more than 40 million people living in the U.S. were born in another country, accounting for about one-fifth of the world's migrants in 2015. The population of immigrants is also very diverse, with just about every country in the world represented among U.S.

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The First Amendment Freedom of Assembly as a Racial Project

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Beginning with the author’s experience of being arrested as a legal observer during a Ferguson protest, this Essay explores the First Amendment freedom of assembly’s fragile protection for those who fight for racial justice, arguing that civil rights movements have always been and continue to be disproportionately chilled by authorities.

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First Amendment Encyclopedia-- Civil Rights Movement specific

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First Amendment Encyclopedia-- Civil Rights Movement specific

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The expressive actions of protesters and activists led to the considerable growth of First Amendment precedent during the Civil Rights Movement. In this Associated Press photo from 1961, about 200 African-Americans are packed and awaiting booking after their arrest for a protest march against segregation in Albany, Ga., Dec. 16, 1961. (AP Photo/Fred E. Noel, Republished with permission from The Associated Press.)

The First Amendment proved to be a crucial tool for the Civil Rights Movement of the 1950s and 1960s, as ministers preached, protesters marched, organizations litigated, advocates petitioned, and the press reported on racial discrimination.

Calls by African Americans and others for broad societal change culminated in historic pieces of federal legislation that paved the way for greater equality in American society, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.

The expressive actions of protesters and activists also led to the considerable growth of First Amendment precedent. The movement witnessed such an expansion of free expression principles through First Amendment cases that scholar Harry Kalven Jr. wrote, "We may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us" (1965: 6).

Court established right of freedom of association

The Supreme Court ruled in NAACP v. Alabama (1958) that Alabama could not force the National Association for the Advancement of Colored People to disclose its membership list. The Court established the First Amendment right of freedom of association, noting that "freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."

The Court accepted similar limitations on a Florida state legislative investigation of the NAACP in Gibson v. Florida Legislative Investigation Committee (1963).

In NAACP v. Button (1963), the Court further established the right of an organization to litigate, signaling the birth of the public interest law firm. The Court ruled that the NAACP had the right to refer individuals who wanted to sue in public school desegregation cases to lawyers and to pay their litigation expenses.

A Virginia law had forbidden any organization from compensating an attorney in a case in which it had no direct monetary interest. Virginia officials charged the NAACP with violating these rules by encouraging people to become plaintiffs in desegregation cases, referring them to private attorneys, and then paying their litigation expenses. The Court wrote, however, that the NAACP's actions were "modes of expression and association protected by the First Amendment."

Free press fortified with higher standards on proving libel

The Court's landmark decision nationalizing libel law in New York Times Co. v. Sullivan (1964) is arguably the most important First Amendment precedent arising during the Civil Rights Movement.

In that ruling, the Court held that state libel laws must comport with overarching First Amendment principles to ensure that "debate on public issues should be robust, uninhibited and wide-open." The justices held that public officials could not recover damages for libel unless they could show actual malice - defined as knowing falsity or reckless disregard for the truth - by clear and convincing evidence.

This high standard freed the press to report on various civil rights abuses. For this reason, Anthony Lewis (1991) argues that the Court's decision in Sullivan not only changed libel law, but also saved the Civil Rights Movement.

The Civil Rights Movement led to court precedents in the areas of protests and sit-ins. In Garner v. Louisiana (1961), the Court overturned the disturbing-the-peace convictions of five African-Americans who had engaged in sit-ins at an all-white restaurant counter in Baton Rouge. In this photo, members of the Congress of Racial Equality (C.O.R.E.), in a sit-in at the Hotel Muehlebach barber shop occupy all chairs on July 2, 1964 in Kansas City. Just after President Johnson signed the Civil Rights Bill in Washington, a C.O.R.E. member asked for, and was refused, service. Immediately a sit-in began with marching, singing and clapping of hands. With the announcement that the barber shop was closed, the marchers and sitters said they'd be back when the shop opens in the morning. (AP Photo/WPS, used with permission from the Associated Press)

Civil Rights Movement strengthened assembly and petition rights

The Court established another important First Amendment precedent in Edwards v. South Carolina (1963), in which it struck down the breach-of-the-peace convictions of 187 African American students who had marched to the South Carolina statehouse, protesting segregation and carrying signs with such messages as "Down with Segregation."

The Court reasoned that the arrests violated the students' freedom of assembly and petition rights, noting that the students' expressive actions "reflect an exercise of these basic constitutional rights in their most pristine and classic form."

The Court added that the government could not criminalize "the peaceful expression of unpopular views." It also allowed protesters to publicly oppose segregation by striking down licensing laws allowing city officials to deny permits for demonstrations on a selective and discriminatory manner.

For example, in Shuttlesworth v. Birmingham (1969), the Court reiterated that licensing laws violate the First Amendment if they grant unbridled discretion to city officials and provide no guiding standards.

In Garner v. Louisiana (1961), the Court overturned the disturbing-the-peace convictions of five African-Americans who had engaged in sit-ins at an all-white restaurant counter in Baton Rouge.

In a concurring opinion, Justice John Marshall Harlan II wrote that a sit-in "is as much a part of the free trade of ideas as is verbal expression." In Brown v. Louisiana (1966), the Court relied similarly on the First and Fourteenth Amendment rights of freedom of speech, assembly, and petition to invalidate the convictions of several protesters who had engaged in a sit-in at a public library.
. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​
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The expressive actions of protesters and activists led to the considerable growth of First Amendment precedent during the Civil Rights Movement. In this Associated Press photo from 1961, about 200 African-Americans are packed and awaiting booking after their arrest for a protest march against segregation in Albany, Ga., Dec. 16, 1961.

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Americans encouraged relatively free and open immigration during the 18th and early 19th centuries, and rarely questioned that policy until the late 1800s. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared regulation of immigration a federal responsibility. Thus, as the number of immigrants rose in the 1880s and economic conditions in some areas worsened, Congress began to pass immigration legislation.

The Chinese Exclusion Act of 1882 and Alien Contract Labor laws of 1885 and 1887 prohibited certain laborers from immigrating to the United States. The general Immigration Act of 1882 levied a head tax of fifty cents on each immigrant and blocked (or excluded) the entry of idiots, lunatics, convicts, and persons likely to become a public charge.

These national immigration laws created the need for new federal enforcement authorities. In the 1880s, state boards or commissions enforced immigration law with direction from U.S. Treasury Department officials. At the Federal level, U.S. Customs Collectors at each port of entry collected the head tax from immigrants while "Chinese Inspectors" enforced the Chinese Exclusion Act.

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Americans encouraged relatively free and open immigration during the 18th and early 19th centuries, and rarely questioned that policy until the late 1800s. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared regulation of immigration a federal responsibility.

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United States Supreme Court

LOVING v. VIRGINIA(1967)

No. 395

Argued: April 10, 1967Decided: June 12, 1967

Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pp. 4-12.

206 Va. 924, 147 S. E. 2d 78, reversed.

Bernard S. Cohen and Philip J. Hirschkop argued the cause and filed a brief for appellants. Mr. Hirschkop argued pro hac vice, by special leave of Court.

R. D. McIlwaine III, Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief were Robert Y. Button, Attorney General, and Kenneth C. Patty, Assistant Attorney General.

William M. Marutani, by special leave of Court, argued the cause for the Japanese American Citizens League, as amicus curiae, urging reversal.

Briefs of amici curiae, urging reversal, were filed by William M. Lewers and William B. Ball for the National Catholic Conference for Interracial Justice et al.; by Robert L. Carter and Andrew D. Weinberger for the National Association for the Advancement of Colored People, and by Jack Greenberg, James M. Nabrit III and Michael Meltsner for the N. A. A. C. P. Legal Defense & Educational Fund, Inc.

T. W. Bruton, Attorney General, and Ralph Moody, Deputy Attorney General, filed a brief for the State of North Carolina, as amicus curiae, urging affirmance.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.
The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after modifying the sentence, affirmed the convictions. 2 The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986 .

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating 20-58 of the Virginia Code:

"Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."
Section 20-59, which defines the penalty for miscegenation, provides:

"Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."
Other central provisions in the Virginia statutory scheme are 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding, 3 and 20-54 and 1-14 which, respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions. 4 The Lovings have never disputed in the course of this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person" within the meanings given those terms by the Virginia statutes.
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. 5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. 6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," 7 a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, 8 certificates of "racial composition" to be kept by both local and state registrars, 9 and the carrying forward of earlier prohibitions against racial intermarriage. 10

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S. E. 2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 535 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U.S. 483, 489 (1954). See also Strauder v. West Virginia, 100 U.S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).

The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." McLaughlin v. Florida, supra, at 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virginia, 100 U.S. 303, 307 -308 (1880); Ex parte Virginia, 100 U.S. 339, 344 -345 (1880); Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." McLaughlin v. Florida, supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. 11 We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed.

Footnotes

[ Footnote 1 ] Section 1 of the Fourteenth Amendment provides:

"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."

[ Footnote 2 ] 206 Va. 924, 147 S. E. 2d 78 (1966).

[ Footnote 3 ] Section 20-57 of the Virginia Code provides:

"Marriages void without decree. All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." Va. Code Ann. 20-57 (1960 Repl. Vol.).

[ Footnote 4 ] Section 20-54 of the Virginia Code provides:

"Intermarriage prohibited; meaning of term `white persons.' It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term `white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter." Va. Code Ann. 20-54 (1960 Repl. Vol.).
The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas . . . ." Plecker, The New Family and Race Improvement, 17 Va. Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1202, n. 93 (1966).
Section 1-14 of the Virginia Code provides:

"Colored persons and Indians defined. Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians." Va. Code Ann. 1-14 (1960 Repl. Vol.).

[ Footnote 5 ] After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala. Const., Art. 4, 102, Ala. Code, Tit. 14, 360 (1958); Arkansas, Ark. Stat. Ann. 55-104 (1947); Delaware, Del. Code Ann., Tit. 13, 101 (1953); Florida, Fla. Const., Art. 16, 24, Fla. Stat. 741.11 (1965); Georgia, Ga. Code Ann. 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. 14:79 (1950); Mississippi, Miss. Const., Art. 14, 263, Miss. Code Ann. 459 (1956); Missouri, Mo. Rev. Stat. 451.020 (Supp. 1966); North Carolina, N.C. Const., Art. XIV, 8, N.C. Gen. Stat. 14-181 (1953); Oklahoma, Okla. Stat., Tit. 43, 12 (Supp. 1965); South Carolina, S. C. Const., Art. 3, 33, S. C. Code Ann. 20-7 (1962); Tennessee, Tenn. Const., Art. 11, 14, Tenn. Code Ann. 36-402 (1955); Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia, W. Va. Code Ann. 4697 (1961).

Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.

The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948).

[ Footnote 6 ] For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4.

[ Footnote 7 ] Va. Code Ann. 20-54 (1960 Repl. Vol.).

[ Footnote 8 ] Va. Code Ann. 20-53 (1960 Repl. Vol.).

[ Footnote 9 ] Va. Code Ann. 20-50 (1960 Repl. Vol.).

[ Footnote 10 ] Va. Code Ann. 20-54 (1960 Repl. Vol.).

[ Footnote 11 ] Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races.

MR. JUSTICE STEWART, concurring.

I have previously expressed the belief that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor." McLaughlin v. Florida, 379 U.S. 184, 198 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.

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FindLaw's United States Supreme Court case and opinions.

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LOVING v. VIRGINIA(1967) Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pp. 4-12. 206 Va. 924, 147 S. E. 2d 78, reversed. Bernard S. Cohen and Philip J.

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John Marshall was the longest serving Chief Justice in Supreme Court history and played a significant role in the development of the American legal system and federal Indian law. He established that the courts have the power of 'judicial review', the authority to strike down laws that violate the U.S. Constitution. Marshall has been credited with cementing the position of the American judiciary as an independent and influential branch of government. The Marshall Court made several important decisions relating to federalism, shaping the balance of power between the federal government and the states. Among these decisions are the three cases that form the basic framework of federal Indian law in the United States, referred to as the 'Marshall Trilogy.'
I. Johnson v. M'Intosh (1823)
This case primarily related to land issues and the interpretation of the Doctrine of Discovery in the United States. The case involved a man named Thomas Johnson who bought land from the Piankeshaw Indians and William M'Intosh who later obtained a patent to the same land from the United States federal government. The Court was asked to settle the dispute between the two men and sided with M'Intosh. The Court went on to say that the Indians did not own land outright, but that they had rights to occupy lands and only the discovering nation (U.S.) could settle those land rights. Indians could not sell lands to individuals and states do not have legal standing to settle aboriginal land claims. There was a case similar to this much later in Alaska called United States v. Berrigan (1905). That case involved gold seekers trying to purchase/steal land from Salchaket Athabascan people who were living near the Salcha on the Tanana river. Judge Wickersham recognized the legal obligation of the federal government to protect Native lands and ruled that only the federal government could settle aboriginal land claims, thereby the sale was invalid.
II. Cherokee Nation v. Georgia (1831)
In this case, Cherokee Chief John Ross tried to protect Cherokee lands, fight off removal, and to keep the laws of Georgia from being imposed on them by asking for an injunction in the United States Supreme Court. The Cherokees argued that they were a foreign nation and the laws of Georgia did not apply to them. The Court denied the injunction and went on to say that the Cherokees were not a foreign nation, but they were a 'domestic dependent nation.' The relationship between the tribes and the United States was like that of a 'ward to a guardian.' This case outlined the sovereign nature of tribes as not like states, but not as complete foreign nations either. Tribal sovereignty was limited by being within the boundaries of the United States, but that tribal sovereignty was inherent sovereignty, which means that it predates the United States. The responsibility that the federal government has to tribes takes root from this and the next of the famous Marshall Indian cases. That responsibility is called the 'doctrine of federal trust responsibility.' The idea was that in exchange for the taking of land from the tribes, the federal government would protect the tribes in the lands that they ended up with, and compensate them by providing basic necessities such as food, shelter, and human services to the tribes.
III. Worcester v. Georgia (1832)
The last case of the Marshall trilogy involved a missionary, Samuel Worcester who was preaching on the Cherokee lands, which was prohibited by the laws of Georgia without a state license to do so. Worcester was imprisoned and filed suit against the State of Georgia claiming that the State did not have authority to control activity on Cherokee lands. The Court sided with Worcester finding that the Cherokee Nation is a sovereign nation, a distinct community, occupying its own territory, and within which the laws of Georgia could have no force. This decision again established that the federal government, not the states have authority over Indian affairs and that the tribes retained inherent sovereignty, the authority to make and enforce their own laws within their lands.
In summary, the cases set out the following principles of federal Indian law:
Aboriginal land claims: Aboriginal people retain the rights of use and occupancy, that only the United States government can settle aboriginal land claims claims, and that the US has a legal duty to protect aboriginal title until land claims are officially settled.

Tribal Sovereignty: Tribes are sovereign nations with the authority to govern themselves. The source of their authority to govern is 'inherent,' meaning that it comes from tribes being self-governing long before explorers and settlers came to the New World.

Federal Trust Responsibility: The Federal Government has a responsibility to protect Indian lands and resources, and to provide essential services to Indian people. This comes from the fact that the federal government took away the vast majority of Indian lands, and in return promised to provide these things.

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Marshall Trilogy | Federal Indian Law for Alaska Tribes

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John Marshall was the longest serving Chief Justice in Supreme Court history and played a significant role in the development of the American legal system and federal Indian law. He established that the courts have the power of 'judicial review', the authority to strike down laws that violate the U.S.

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Bryan Stevenson Equal justice Initiative

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Bryan Stevenson Equal justice Initiative

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Mr. Stevenson is a widely acclaimed public interest lawyer who has dedicated his career to helping the poor, the incarcerated, and the condemned.

Bryan Stevenson is the founder and Executive Director of the Equal Justice Initiative, a human rights organization in Montgomery, Alabama. Under his leadership, EJI has won major legal challenges eliminating excessive and unfair sentencing, exonerating innocent death row prisoners, confronting abuse of the incarcerated and the mentally ill, and aiding children prosecuted as adults.

Mr. Stevenson has argued and won multiple cases at the United States Supreme Court, including a 2019 ruling protecting condemned prisoners who suffer from dementia and a landmark 2012 ruling that banned mandatory life-imprisonment-without-parole sentences for all children 17 or younger. Mr. Stevenson and his staff have won reversals, relief, or release from prison for over 140 wrongly condemned prisoners on death row and won relief for hundreds of others wrongly convicted or unfairly sentenced.

Mr. Stevenson has initiated major new anti-poverty and anti-discrimination efforts that challenge inequality in America. He led the creation of two highly acclaimed cultural sites which opened in 2018: the Legacy Museum and the National Memorial for Peace and Justice. These new national landmark institutions chronicle the legacy of slavery, lynching, and racial segregation, and the connection to mass incarceration and contemporary issues of racial bias.

Mr. Stevenson's work has won him numerous awards including the prestigious MacArthur Foundation "Genius" Prize; the ABA Medal, the American Bar Association's highest honor; the National Medal of Liberty from the American Civil Liberties Union after he was nominated by United States Supreme Court Justice John Stevens; the Public Interest Lawyer of the Year by the National Association of Public Interest Lawyers; and the Olaf Palme Prize in Stockholm, Sweden for international human rights. In 2002, he received the Alabama State Bar Commissioners Award. In 2003, the SALT Human Rights Award was presented to Mr. Stevenson by the Society of American Law Teachers. In 2004, he received the Award for Courageous Advocacy from the American College of Trial Lawyers and also the Lawyer for the People Award from the National Lawyers Guild. In 2006 New York University presented Mr. Stevenson with its Distinguished Teaching Award. Mr. Stevenson won the Gruber Foundation International Justice Prize and was awarded the NAACP William Robert Ming Advocacy Award, the National Legal Aid & Defender Association Lifetime Achievement Award, the Ford Foundation Visionaries Award and the Roosevelt Institute Franklin D. Roosevelt Freedom from Fear Award. In 2012, Mr. Stevenson received the American Psychiatric Association Human Rights Award, the Birmingham Civil Rights Institute Fred L. Shuttlesworth Award, and the Smithsonian Magazine American Ingenuity Award in Social Progress. Mr. Stevenson was inducted into the American Academy of Arts and Science in 2014 and won the Lannan Cultural Freedom Prize. In 2015, he was named to the Time 100 recognizing the world's most influential people. In 2016, he received the American Bar Association's Thurgood Marshall Award. He was named in Fortune's 2016 and 2017 World's Greatest Leaders list. He received the Martin Luther King Jr. Nonviolent Peace Prize, from the King Center in Atlanta in 2018. In 2020, he received the Right Livelihood Award from The Right Livelihood Foundation in Sweden. In 2023, he was awarded the National Humanities Medal by President Biden.

Mr. Stevenson has received over 50 honorary doctoral degrees, including degrees from Harvard, Yale, Princeton, the University of Pennsylvania, and Oxford University. He is the author of the critically acclaimed New York Times bestseller, Just Mercy, which was named by Time Magazine as one of the 10 Best Books of Nonfiction for 2014 and has been awarded several honors, including the American Library Association's Carnegie Medal for best nonfiction book of 2015 and a 2015 NAACP Image Award. Just Mercy was adapted as a major motion picture and the film won the American Bar Association's 2020 Silver Gavel Award as well as four NAACP Image Awards. Mr. Stevenson is also the subject of the Emmy Award-winning HBO documentary True Justice. He is a graduate of the Harvard Law School and the Harvard School of Government.

Just Mercy

A powerful true story about the Equal Justice Initiative, the people we represent, and the importance of confronting injustice, Just Mercy is a bestselling book by Bryan Stevenson that has been adapted into a feature film.

True Justice

This HBO documentary follows Bryan Stevenson and EJI's struggle to create greater fairness in the criminal justice system. It reveals how racial injustice emerged, evolved, and continues to threaten America and challenges viewers to confront it.

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Bryan Stevenson | Equal Justice Initiative

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Founder and Executive Director of the Equal Justice Initiative.

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Tribal Sovereignty and federal indian law

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Tribal Sovereignty and federal indian law

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Federal Indian law involves a distinct body of law that relates to the legal relationships between the federal government and Indian tribes. It is dynamic, evolving and encompasses several hundred years of federal policies and interaction with tribes. The sources of federal Indian law include principles of international law, the United States Constitution, treaties with Indian tribes, federal statutes and regulations, executive orders, and judicial opinions.

Federal Indian law is described as 'complex' for three main reasons:

1. There is a tremendous amount of federal Indian law, thousands and thousands of statutes, regulations, treaties, and court decisions, created by centuries of interaction between the federal government and tribes. Tribal laws and some state statutes dealing with Indians adds to the complexity.

2. Federal Indian law is sometimes contradictory to itself because federal policy swings back and forth. Federal policies are sometimes supportive of tribal sovereignty and sometimes not, creating a 'pendulum swing' of federal policy. Laws are created on both sides of the pendulum swing and often remain in effect.

3. There is a wide variety of tribal sovereign powers throughout the country and of how those powers are exercised. Federal Indian law can be tribal specific. For example, there are specific treaty provisions or statutes affecting just one tribe or a group of tribes. It is often said that Alaska tribes are unique, primarily because the land settlement went to corporations rather than set aside in reservations, which has a big impact on tribal jurisdiction.
In spite of the complexity of Indian law, there are several fundamental themes and principles of Federal Indian law that apply to the federal relationship with all tribes in the United States:

Inherent Sovereignty: The sovereignty, self-governing powers, that tribes have are inherent powers. 'Inherent sovereignty' is based on the fact that tribes were already governing themselves before settlers came to America, and the United States recognizes those retained self-governing powers. Felix Cohen, author of the Handbook of Federal Indian Law, summarizes inherent sovereignty well in his quote: "Perhaps the most basic principle of all Indian law supported by a host of decisions....is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. What is not expressly limited [by Congress] remains within the domain of tribal sovereignty."

Domestic Dependent Nations: Although tribes are recognized as having inherent sovereignty, they are recognized as being 'domestic dependant nations.' Tribes are 'domestic' because they are within the boundaries of the United States. They are 'dependent' because they are subject to the power and responsibility of the federal government. They are 'nations' because they exercise sovereign powers over their people, property, and activities that affect them.

Plenary Power of Congress: Congress has broad power over Indian tribes and can limit tribal powers, enhance them by delegating new powers to tribes, or even terminate tribal status. The power that Congress has comes from authority delegated to Congress by the Indian Commerce Clause of the United States Constitution. The power Congress has over tribes is not unlimited, however, as the U.S. Supreme Court has the right to review Congressional action over tribes.

Government-to-Government Relationship: Federally recognized tribes have a government-to-government relationship with the federal government. This is a political relationship based on their retained inherent sovereignty rather than one based on race.

Federal Trust Responsibility: The federal government has an obligation to protect tribes, their way of life, and to provide services such as education, housing and health care to ensure their survival and welfare. This obligation is primarily based on treaty promises to protect tribes, and on the fact that American Indians and Alaska Natives had aboriginal claims to all land in America. Through treaties and other settlements, tribes received only small parcels of their original land base. In exchange, the federal government promised to protect tribes and provide services. This federal obligation is known as the 'doctrine of trust responsibility,' and applies to all tribes, not just treaty tribes.

U.S. Bill of Rights, Indian Civil Rights Act: The United States Constitution, Bill of Rights, does not apply to the activities of the tribal governments. This is because the sovereign powers of tribes predate the Constitution. Tribal powers come from their own inherent sovereignty and not from the United States Constitution. However, Congress passed the Indian Civil Rights Act in 1968 which applies to all tribes in the United States. The Indian Civil Rights Act is very similar to the U.S. Bill of Rights. The Act requires tribes to provide due process for anyone who falls under their jurisdiction and tribes may not impose cruel or unusual punishment. One difference from the Bill of Rights is that the Indian Civil Rights Act does not require tribes to separate church and state. Another difference is that the Indian Civil Rights Act limits sentencing options for all tribes. While previously imposing limits of 1 year in jail and $5000 per offense, the Act was amended through the Tribal Law and Order Act of 2010 so that tribes cannot impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of up to $15,000 or both.

Indian country: 'Indian country' is the territorial area over which tribes have jurisdiction. It was defined by congressional statute in 1948 to include reservations, dependent Indian communities, and allotments. In general, tribes have more jurisdiction within Indian country than outside it. The decision of the United States Supreme Court in the Venetie Tax case of 1998 held that land that went through the Alaska Native Claims Settlement Act is no longer Indian country. However, there is some Indian country in Alaska, including the Metlakatla Indian Reservation and some parcels held in trust such as in the Village of Kake. There are thousands of Native allotments in Alaska, as well as restricted townsite lots which may be Indian country as well. The presence of Indian country may be significant for some tribes in Alaska or in the facts of particular tribal court cases, but in general, the jurisdiction of Alaska tribes is largely based on membership rather than on a territorial area.

Cannons of Construction: Over time, through many conflicts between tribes and the U.S. government, guidelines for interpreting Indian law cases were developed. These types of guidelines are called 'cannons of construction.' The three basic guidelines for interpreting Indian law cases are that ambiguities in treaties must be resolved in favor of the Indians; Indian treaties must be interpreted as the Indians would have understood them; and Indian treaties, agreements, and laws must be construed liberally in favor of the Indians.

Double Jeopardy: When both tribes and the state or federal government have jurisdiction over a matter, a person may be tried for the same offense in both tribal and state court or federal court, and the double jeopardy clause of the U.S. Constitution does not apply. This is because tribes are 'separate sovereigns.'

Criminal Jurisdiction over Non-Natives: Tribes do not have criminal jurisdiction over non-Natives and cannot incarcerate them. This is due to a U.S. Supreme Court decision in a case called Oliphant v. Suquamish Indian Tribe in 1978. However, tribes may regulate non-Natives through civil actions, who affect the health, safety, and welfare of the tribe and tribal members.

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General Principles of Federal Indian Law | Federal Indian Law for Alaska Tribes

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Federal Indian law involves a distinct body of law that relates to the legal relationships between the federal government and Indian tribes. It is dynamic, evolving and encompasses several hundred years of federal policies and interaction with tribes.

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The Alaska Native Claims Settlement Act of 1971 (ANCSA) was a new approach by Congress to federal Indian policy. ANCSA extinguished aboriginal land title in Alaska. It divided the state into twelve distinct regions and mandated the creation of twelve private, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations. ANCSA also mandated that both regional and village corporations be owned by enrolled Alaska Native shareholders. Unlike in the lower-48 states where the reservation system was the norm, ANCSA departed significantly - its foundation was in Alaska Native corporate ownership.

Through ANCSA, the federal government transferred 44 million acres - land to be held in corporate ownership by Alaska Native shareholders - to Alaska Native regional and village corporations. The federal government also compensated the newly formed Alaska Native corporations a total of $962.5 million for land lost in the settlement agreement.

ANCSA had expansive effects, reaching far beyond Alaska Native people. The passage of ANCSA allowed for federal lease sales to move forward across Alaska, with proceeds going to the federal government. Oil and gas exploration on the North Slope of Alaska and the construction of the Trans-Alaska Pipeline System created thousands of jobs and pumped revenues into the state's coffers-eventually leading to the creation of the Alaska Permanent Fund. Since the passage of ANCSA, various industries have been strengthened in Alaska, creating jobs in both the private and public sectors. By creating Alaska Native-owned, for-profit corporations, ANCSA also brought additional economic diversity to the state that has benefited, either directly or indirectly, all Alaskans.

To understand ANCSA, it is important to understand the history of aboriginal land claims in Alaska. More than 100 years prior to the enactment of ANCSA, Alaska was purchased from Russia. From the time of purchase until the passage of ANCSA, aboriginal land claims were not definitively addressed by the federal government.

Timeline of Significant Events: How ANCSA Came To Be

Below is a timeline that outlines how failure by Congress to address aboriginal land claims in decades' worth of legislation led to the eventual passage of ANCSA in 1971. Federal legislation from the Treaty of Cession to the Statehood Act did not explicitly address aboriginal land claims, leaving it to finally be dealt with by Congress 104 years after Alaska was purchased from Russia.

1867: The Treaty of Cession - The United States purchases Alaska from Russia

In 1867, the Treaty of Cession was signed. The treaty outlined the terms for the sale of Alaska from Russia to the United States. The United States paid $7.2 million for Alaska.

The Alaska Native peoples who had inhabited Alaska for thousands of years disagreed with Russia's right to sell their land. The Russian claim to aboriginal lands of Alaska was under the Laws of Discovery, which state the two conditions aboriginal people can lose their land: 1) through a "just" war, or 2) by giving up specific land in a treaty. Neither of these conditions applied to the Alaska Native people, which left land claims unresolved when the purchase took place.

1884: The First Organic Act for Alaska - Alaska becomes a civil and judicial district of the United States

When the Organic Act of 1884 was passed by Congress, it established the civil and judicial district of Alaska. Status as a civil and judicial district allowed the non-indigenous residents of Alaska to stand up a civil government, which included a district governor, a district court with a judge and court clerk, four commissioners, and a United States marshal.

The Organic Act of 1884 marginally addressed land issues relating to mines and mineral privileges. The act also specifically mentioned Alaska's indigenous peoples (calling them "Indians") and their occupation of the land, but did not resolve their land claims. The act states,

The Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress...

1912: The Second Organic Act for Alaska - Alaska becomes a territory of the United States

The Second Organic Act established Alaska as an incorporated United States territory, which allowed Alaska to elect a territorial delegate to Congress, elect legislators to a territorial legislature, and elect a territorial governor. The Second Organic Act outlined the laws for territorial elections and the purview of elected officials.

The Second Organic Act included no specific language addressing aboriginal land claims, leaving them to be dealt with by Congress in the future.

1959: The Alaska Statehood Act of 1958 - Alaska becomes the 49th state of the United States

In 1958, Congress passed the Statehood Act, which made Alaska the 49th state of United States, effective on January 3, 1959. The Statehood Act established a state government, defined elected representation for the state in Washington, D.C., and outlined the types of public lands that the state could select.

Again, the Statehood Act did not specifically address comprehensive land claims by Alaska's indigenous peoples. The Statehood Act did, however, declare that the

State must disclaim all right and title to lands and other property not granted or confirmed to the State including right or title which may be held by any Indians, Eskimos or Aleuts (natives) or is held by the United States in trust for said natives.

The act went on to state that any land that may belong to natives shall be under the jurisdiction and control of the United States.

Because Congress did not resolve the issue of aboriginal land claims outright, it was around this time that Alaska Native leaders began to organize into groups to represent their respective regions as they sought resolution to their land claims.

1966: The Alaska Federation of Native is formed to advocate for a land claims settlement

The Alaska Federation of Natives (AFN) formed in 1966 in response to the land claims issues that were being brought forth by various organized Alaska Native groups. AFN consolidated the various Alaska Native groups' efforts and became the statewide organization to advocate for aboriginal land claims.

AFN earned an early victory in 1966 when then-Secretary of Interior Stuart Udall imposed a land freeze. AFN delegates pressed for the land freeze to stop land selections and conveyances across the state, which were viewed by Alaska Native people as encroachment on their lands. By freezing all land conveyances within Alaska, Secretary Udall forced the State of Alaska, the federal government, and the Alaska Native people to resolve aboriginal land claims before any further land selections could take place.

The late 1960s: Commercial quantities of oil are discovered on the North Slope of Alaska

In the late 1960s, commercial quantities of oil were discovered on the North Slope of Alaska. To get the oil to market via the Gulf of Alaska, it first needed to traverse the state from the North Slope all the way down to Valdez. The proposed Trans-Alaska Pipeline system (TAPS) would need to cross over land that various Alaska Native groups claimed. With Alaska Native land claims still unsettled and the land freeze in place, the proposed construction of TAPS was put on hold. Further oil exploration and development also stalled.

These circumstances put Secretary Udall's land freeze in the spotlight in both Washington, D.C. and in Alaska. The oil and gas industry and early environmentalist organizations entered the land claims debate, adding more voices and complexity.

1971: The Alaska Native Claims Settlement Act of 1971 - Federal government explicitly addresses aboriginal land claims in Alaska

After intense internal negotiations among the various Alaska Native groups and between Alaska Federation of Natives (AFN) delegates and representatives of state and federal government, Congress finally passed Alaska Native land claims legislation in 1971. On December 18, 1971, President Richard Nixon addressed the delegates of AFN by phone and informed them that he had just signed the Alaska Native Claims Settlement Act into law.

At the time of its passage, ANCSA was entirely different than any previous federal Indian policy. ANCSA extinguished aboriginal land claims in Alaska and mandated a for-profit model with land title under corporate ownership. Upon the passage of ANCSA, a new era began for Alaska Native people. Many of the early leaders of the Alaska Native regional corporations had never worked in a corporate business and few had college degrees, let alone advanced degrees in business or law. Despite the humble beginnings, Alaska Native regional corporations have become an integral part of the Alaska economy.

December 18, 1971 marked a new era for federal Indian policy. It was also a significant day for Alaska Native peoples on an individual level. Several provisions of ANCSA affected individuals in ways that neither they nor the federal government really understood at the time.

ANCSA's original language addressed the specific congressional mandates of Alaska Native corporations: government oversight of the corporations, eligibility requirements to enroll shareholders, the land selection process, redistribution of monetized natural resource wealth among regional and village corporations, and more. There have also been significant amendments to ANCSA since its passage, most notably the 1991 amendments.

The Twelve Regions, a Federal Indian Reservation, and a Thirteenth Regional Corporation

ANCSA divided Alaska into twelve regions defined by the common heritage and shared interests of the indigenous peoples within each geographic area. The regional boundaries established which people, villages, and communities that each Alaska Native regional corporation would serve. The boundaries do not directly represent land ownership; they did, however, define the areas in which each regional corporation could select lands to be conveyed under the provisions ANCSA. Today, within each region there is a complex landscape of governance, land ownership, roles, and relationships.

At the time Congress passed ANCSA, the Metlakatla Indian Community opted out of the settlement agreement. The community instead chose to be designated as a federal Indian reservation. The Annette Island reserve is the only federal Indian reservation in the state of Alaska.

In 1975, ANCSA was amended to create a thirteenth Alaska Native regional corporation, known as the 13th Regional Corporation. The 13th Regional Corporation was established to ensure that Alaska Native people who were not permanent residents of Alaska but who were otherwise eligible to enroll in an Alaska Native regional corporation were included in the land claims settlement. Unlike the original Alaska Native regional corporations, the 13th Regional Corporation did not receive any land conveyances under ANCSA; therefore, it cannot contribute any 7(i) funds; it is, however, eligible to receive 7(i) funds from the other Alaska Native Regional corporations. In 2013, the 13th Regional Corporation was involuntarily dissolved by the State of Alaska when their registered agent resigned.

Original Shareholder Enrollment (1971-1991)

Each Alaska Native regional and village corporation had to enroll shareholders within two years from the date that ANCSA was signed into law. This was no small task; Alaska Native people were spread across vast distances in every region, often with no roads connecting homes and communities. When the two-year deadline arrived, the twelve Alaska Native regional corporations had enrolled just over 64,000 original shareholders, each of whom received 100 shares.

The original language in ANCSA defined the eligibility requirements for enrollment in an Alaska Native corporation. It was not until the 1991 amendments to ANCSA were passed that individual Alaska Native corporations, through a vote of their shareholders, could amend their articles of incorporation to expand shareholder enrollment eligibility.

In particular, two requirements of original shareholder eligibility are noteworthy: blood quantum and date of birth.

ANCSA defined native as: "a citizen of the United States who is a person of one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlakatla Indian Community) Eskimo, or Aleut blood, or combination thereof." Meaning only Alaska Native people of ¼ blood quantum were eligible to be enrolled in an Alaska Native corporation (regional or village). ANCSA did define other ways around this.

Only those Alaska Native people of one-fourth blood quantum who were born on or before 11:59 p.m. on December 18, 1971 were eligible to enroll in Alaska Native regional and village corporations. Those born on December 19, 1971 or after were not eligible.

Land Selection Process

ANCSA language stated that Alaska Native regional and village corporations would be conveyed a total of nearly 44 million acres of land in Alaska, about ten percent of the state. However, there were large tracts of land across all twelve regions that the federal government had already claimed for strategic purposes or conveyed to other entities. Because those lands were not eligible for selection by Alaska Native corporations, the corporations were compensated $962.5 million for lost lands.

The land selection process defined in ANCSA was different for Alaska Native village corporations and Alaska Native regional corporations. Alaska Native village corporations were to select lands on which any part of the village was located. For the most part, Alaska Native village corporations received title to the surface rights of those lands. In contrast, Alaska Native regional corporations were to select any lands from within the larger regional boundaries defined in ANCSA. Alaska Native regional corporations received title to the subsurface estate of much of the land they selected. Consequently, most of the Alaska Native regional corporations balanced their land selections between areas that had significant cultural or subsistence value and areas that had potential economic value for natural resource development.

Since the passage of ANCSA, some Alaska Native corporations still have not received their full conveyance of land. In addition, a number of Alaska Native corporations have engaged in land transfers with state and federal agencies and with other Alaska Native corporations, resulting in a mix of surface and subsurface rights owned by regional and village corporations.

The Revenue Sharing Provisions of ANCSA: Sections 7(i) and 7(j)

From the beginning of the land claims debate there was recognition that some regions were richer in natural resources and therefore had more potential for economic development. Congress and various Alaska Native groups felt a mechanism was needed to address the issue of regional natural resource 'haves' and 'have nots.' In the years leading up to the passage of ANCSA, several iterations of the land claims bill introduced in Congress attempted to address the disparity in natural resource wealth between the regions when calculating land conveyances and compensation for land lost.

The revenue sharing provisions that ultimately passed as a part of ANCSA were contained in sections 7(i) and 7(j). The goal of the sections is to ensure that all Alaska Native corporations, and accordingly their shareholders, benefit from revenues derived from natural resources developed on ANCSA lands. While typical for-profit corporations would balk at these provisions, many people believe that without sections 7(i) and 7(j), ANCSA would not have passed.

The original language of Section 7(i) states:

Seventy per centum of all revenues received by each Regional Corporation from the timber resources and subsurface estate patented to it pursuant to this Act shall be divided annually by the Regional Corporation among all twelve Regional Corporations organized pursuant to this section according to the number of Natives enrolled in each region pursuant to Section 5.

Section 7(i) requires that any annual revenues that an Alaska Native regional corporation receives from ANCSA lands (e.g., from timber resources or natural resources in subsurface estate) must be shared in a 70/30 split. The allocation means that 70 percent of the revenue is dispersed to the other Alaska Native regional corporations and the remaining 30 percent of the revenue is kept by the Alaska Native regional corporation that developed the natural resource.

Section 7(j) ensures revenues from natural resource wealth are also shared with Alaska Native village corporations. Section 7(j) directs Alaska Native regional corporations to disperse 50 percent of the Section 7(i) revenues they receive to Alaska Native village corporations within the region. Unlike Section 7(i), Section 7(j) does not require any revenue sharing distribution from Alaska Native village corporations to other village corporations or to regional corporations.

The original language of Section 7(j) states, in part:

Not less than 45% of funds from such sources during the first five-year period, and 50% thereafter, shall be distributed among the Village Corporations in the region and the class of stockholders who are not residents of those Villages, as provided in subsection to it.

To address issues that were not foreseen at the time ANCSA was passed, Section 7(i) has been amended a few times to address issues that have arisen since 1971.

Despite the ongoing debate about specifics of the revenue sharing provisions, the redistribution of natural resource wealth has generally had positive effects on all regions. In 2018, the ANCSA Regional Association commissioned a report by the McDowell Group on the economic impacts of sections 7(i) and 7(j) of ANCSA. Some key findings of that report are:

Every Alaska Native regional corporation has had periods when it received more 7(i) payments than it paid out-so each of the twelve Alaska Native regional corporations (and therefore the shareholders of each corporation) has been a Section 7(i) beneficiary

The redistribution of wealth among the regions that receive 7(i) revenues creates a 'leveling effect' in economic activity that otherwise would not occur

*McDowell Group A summary of the economic benefits of ANCSA section7(i) and 7(j)
The 1991 Amendments

Several original provisions of ANCSA that dealt with stocks and shareholder eligibility were set to expire in 1991, twenty years after passage of the bill. Expiration of the provisions presupposed that between 1971 and 1991, Alaska Native shareholders would gain a strong grasp of corporate ownership and activities and be ready to make significant decisions that would potentially impact Alaska Native ownership of the government-created corporations.

However, as the conclusion of the twenty years neared, the overall profitability and success of Alaska Native corporations was not where Congress had anticipated it to be. Therefore, in 1988, Congress passed amendments to ANCSA addressing provisions relating to the sale of stock, exemption from federal securities laws, and the expansion of eligibility of shareholders.

The series of amendments was passed in 1988 but because all amendments addressed changes to ANCSA that were to occur in 1991, they are often referred to as the 1991 amendments. While ANCSA has been amended numerous times since its passage, the 1991 amendments have been the most significant to Alaska Native corporations and their shareholders.

Prohibition of the Sale of Stock

As originally written in 1971, ANCSA had a twenty-year prohibition on the sale of Alaska Native corporation stock. In other words, stock in Alaska Native corporations could not be sold until 1991. In 1988, ANCSA was amended to prohibit the sale of stock in perpetuity, unless the shareholders of an Alaska Native corporation voted to amend the articles of incorporation of their corporation to remove restrictions on stock sales. To date, no Alaska Native corporation has amended their articles of incorporation to allow for the sale of stock.

While stock cannot be sold or traded, original stock (i.e., stock issued to those born on or before December 18, 1971) can be gifted, willed, or bequeathed.

The Exemption from Some Federal Securities Laws

Originally, ANCSA exempted Alaska Native corporations from some federal securities laws for twenty years. Because Alaska Native corporation stocks were not eligible to be sold or disposed of during the twenty-year period after the passage of ANCSA, many federal securities laws did not apply.

Because the 1991 amendments extended the prohibition of the sale of stock into perpetuity, accordingly the exemption of Alaska Native corporations from certain federal securities laws was also extended.

Expansion of Shareholder Eligibility

To individual Alaska Native people, one of the most significant of the 1991 amendments (and a subsequent amendment in 1992) was the expansion of shareholder eligibility. The amendments addressed the eligibility of Alaska Native people who missed the original enrollment deadline and the date-of-birth cutoff of December 18, 1971.

The initial amendment allowed a corporation's shareholders to vote to amend its articles of incorporation to add new shareholders. In 1992, an amendment clarified and expanded how shareholders of an Alaska Native corporation could allow for additional shares to be issued to descendants of Alaska Native shareholders. The 1992 amendment also removed the blood quantum requirement originally set by ANCSA.

For an Alaska Native corporation to expand shareholder eligibility and allow for additional shares to be issued, the shareholders of that specific Alaska Native corporation must vote to amend their articles of incorporation. To date, six of the twelve Alaska Native regional corporations' original shareholders have voted to open their rolls to those born after December 18, 1971, resulting in a larger shareholder base.

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About the Alaska Native Claims Settlement Act - ANCSA Regional Association

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Introduction The Alaska Native Claims Settlement Act of 1971 (ANCSA) was a new approach by Congress to federal Indian policy. ANCSA extinguished aboriginal land title in Alaska. It divided the state into twelve distinct regions and mandated the creation of twelve private, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village [...]

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The state of Alaska has reached what rural school advocates are calling a historic agreement in a 14-year battle for equitable funding of school construction in remote villages.

The settlement, announced Tuesday, calls for the governor to ask the Legislature for $146 million or more over four years to build or renovate schools in five Western Alaska villages.

If the state lives up to its promises, the agreement will close the book on a 1997 lawsuit that prompted a state judge to declare Alaska funding of village schools "arbitrary, inadequate and racially discriminatory."

"It's dealing with the historic inequity where urban schools got automatic funding and rural schools were neglected year after year to the point that some of them were very unsafe and certainly not a very good place for somebody to learn," said Charles Wohlforth, executive director of Citizens for the Educational Advancement of Alaska's Children, a group formed in the 1990s to promote rural school funding.

The lawsuit, Willie and Sophie Kasayulie et al., v. State of Alaska, was named for a couple from the western Alaska village of Akiachak who filed the lawsuit along with a group of other rural parents and with the support of rural school districts. They claimed the state's method of financing school construction discriminated against rural students -- a majority of whom were Alaska Native.

In 1999 and again in 2001, then-Anchorage Superior Court Judge John Reese concluded that the system was indeed unfair.

Urban schools participated in a bond reimbursement program that provided 70 percent of their construction money through the state. But some rural school districts are scattered across cash-poor, unorganized regions with no local borough government. They had no tax base to approve bonds and were subject to the spending whims of the Legislature.

"Education, health and safety of our youth have suffered. The dignity of our fellow citizens has suffered," Reese wrote in 2001. "The respect for public officials has suffered. The racial divisions in our state are further aggravated."

But the case wasn't closed, in part because the Legislature never created a new, equitable way to pay for new school construction in villages. That changed in 2010, when lawmakers approved a formula that tethers the amount of rural school funding to state funding on urban school construction.

The new formula is expected to provide about $38 million annually -- about enough to build one new school a year, Wohlforth said.

Meantime, the settlement also calls for the state to request money to pay for five rural projects that sit at the top of a school construction priority list. Over the next four years, the governor has agreed to ask for funding for additions, renovations or replacement schools in Emmonak, Koliganek, Nightmute, Kwethluk and Kivalina.

For all the projects, there is a catch. Legislators still have to approve the money for the governor's requests. With a statewide redistricting effort in the works, the players will change in Juneau in coming years.

"The political process, anybody, at any time could say, 'We're changing our mind. We're going to take that out, we're going to change that formula,'" said Education Commissioner Mike Hanley.

But lawmakers paved the way for the settlement by approving the new spending plan for rural schools and will likely support the agreement, he said. "They began the process and I think they're going to see it through."

Hanley signed the agreement along with Alaska Attorney General John Burns.

If the school funding plan described in the settlement falls apart, the plaintiffs have the option of reopening the lawsuit, according to the agreement. The settlement allows the legislature to refuse funding for the Kivalina school based on concerns over erosion or viability of the school site without penalty.

Reached by phone in Akiachak, his hometown of about 630 people on the lower Kuskokwim River, Willie Kasayulie called the settlement "a long time coming."

A member of the Alaska Federation of Natives board of directors, Kasayulie is a father of five. His oldest child was 15 when he filed the lawsuit more than a decade ago, he said.

Village schools were overcrowded, he said, but lawmakers routinely denied requests for new classrooms in the Bush.

"It was mostly due to politics and many of the legislators not understanding or really knowing what the conditions were like in smaller communities such as ours," Kasayulie said.

Read The Village, the ADN's blog about rural Alaska, at adn.com/thevillage. Twitter updates: twitter.com/adn_kylehopkins. Call Kyle Hopkins at 257-4334 or email him at khopkins@adn.com.

By KYLE HOPKINS

Anchorage Daily News

Alaska Dispatch Publishing

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State settles historic lawsuit over village school funding

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The state of Alaska has reached what rural school advocates are calling a historic agreement in a 14-year battle for equitable funding of school construction in remote villages. The settlement, announced Tuesday, calls for the governor to ask the Legislature for $146 million or more over four years to build or renovate schools in five Western Alaska villages.

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This article was produced in partnership with ProPublica as part of the ProPublica Local Reporting Network and is part of a continuing series, Lawless: Sexual violence in Alaska.
COVID-19 has largely spared the villages of Western Alaska. Yet it has been a summer of burials.

On June 22, troopers say, a woman stabbed and killed her boyfriend in the Yukon River village of Grayling. Later that week, about 330 miles away, a man was accused of beating his wife to death with a crowbar in the Northwest Arctic village of Noatak. The day after that, neighbors found the body of a 50-year-old woman, missing a portion of her scalp, in the home she shared with her boyfriend in the Kuskokwim River village of McGrath. Then, on July 1, two Alakanuk men stabbed each other to death in what troopers called a "domestic dispute."

All told, five village residents died in domestic violence murders in 10 days, according to the Alaska State Troopers. All were in communities with no local domestic violence shelter and where pandemic travel restrictions have limited access to services.

While the state commissioner of public safety has issued a plea to Alaskans to work with law enforcement to prevent more deaths, some McGrath residents expressed little surprise at the killing in their hometown.

The June 28 homicide of Carol Abraham, whose boyfriend, Glen Holmberg, is charged with beating her to death, ended a slow-motion tragedy. Court records show that not only had Abraham warned family and friends that Holmberg might one day kill her, she wasn't the first woman to say it.

Holmberg, 47, has not yet entered a plea in the case. He declined a request for an interview.

"Domestic violence and sexual assault has thrived in this area for far too long," 21-year-old Christine Taylor wrote in an email to ProPublica and the Anchorage Daily News seeking to draw attention to Abraham's death and the many warning signs that preceded it.

Taylor grew up in McGrath, a postcard-ready village of dozing sled dogs and refueling Bush planes. In many ways it's a magical place, she said, but one where she has had to confront abusers with her fists and rescue friends found outdoors and bruised.

"Something must be done," she wrote. "Something must be said."

A spike in domestic violence calls

The combined population of the villages where the killings occurred is fewer than 1,800 people. In Alaska's largest city of Anchorage, home to a population 160 times larger, there have been just six homicides in 2020, as of last week.

Statewide, Alaska has the nation's highest rates of sexual assault and women killed by men. The Alaska Justice Information Center published a study in May that found more than 29% of all homicide victims in the state are Alaska Native, yet Alaska Natives make up just 16% of the population.

The recent spate of domestic violence killings took the lives of women and men living within troopers' Western Alaska detachment, a California-sized expanse that begins at the Arctic Circle and stretches along the Bering Sea coast to the Aleutian Islands. Over the past five years, 43 of the 71 homicide investigations there involved domestic violence, with troopers normally averaging about one new homicide case in the region per month, according to records obtained through a public information request. (Some homicide investigations involve more than one death.)

Yet as of 2019, 43% of communities in the troopers' Western Alaska detachment area had no local law enforcement of any kind. Statewide, about one in three Alaska communities had no law enforcement, a ProPublica and Daily News analysis found.

The coronavirus pandemic has mostly spared Western Alaska villages. On Monday, the Bethel-based Yukon-Kuskokwim Health Corp. reported its first death.

Nonprofits that provide help for abuse survivors in the region say the pandemic is making the always-difficult job of aiding people in this vast system of rivers, islands and roadless tundra even harder. In the spring, many remote villages began to defend against the virus by limiting travel. One of the few shelters in the region stopped flying clients from surrounding communities, while another has sought to reduce bed capacity and is focusing on helping people find safe houses and file protective orders online.

Statewide, a survey of 30 Alaska domestic violence shelters found hotline calls increased 52% in the five weeks after the state declared a coronavirus public health disaster on March 11. Shelters nationwide have seen similar trends. In Alaska, the same shelters cut bed capacity by 57% to allow for safe social distancing.

"The spike in hotline calls is probably more related to the fact that people can't leave their home and get out to receive services at a shelter," said Diane Casto, executive director for the state Council on Domestic Violence and Sexual Assault. "So instead they find those moments when they can call."

In the meantime, Alaska Public Safety Commissioner Amanda Price said, Western Alaska has suffered a "blight" of domestic violence murders.

For survivors like Taylor, Abraham's friend, the hardest part is to have seen it coming.

Court records show that two women told police or family members that Holmberg, the man accused of Abraham's murder, might kill them.

The first was an ex-girlfriend, Shirley Gover, who said it in 2002 as a village public safety officer investigated Holmberg for kicking her in the face and pulling her 50 feet by her hair. That time he pleaded no contest to a misdemeanor and paid a $50 fine.

"He was trying to drag me into the house, but I grabbed on to something outside," Gover said in a recent phone interview, recalling how she lost chunks of hair in the attack and left Holmberg for good soon after.

The second woman was Abraham, who is now dead.

No shelters

All three of the people awaiting trial for the recent homicides, including Holmberg, had been convicted of domestic violence before. In some cases they were also victims.

Between 2002 and 2016, state prosecutors charged Holmberg with six counts of domestic violence. Half, including a felony, were dismissed or amended to misdemeanor harassment. On the rest he pleaded guilty or no contest.

According to Department of Corrections records and sentencing memos, Holmberg served far more time, and was fined far more money, for three drunken driving convictions than for an equal number of domestic violence convictions.

Tammy Maillelle, the 32-year-old Grayling woman charged with stabbing and killing her boyfriend, Lawrence Paul, 45, previously pleaded no contest to family assault in 2008. She was named as the victim last year in an assault charge against Paul. In that case, Paul pleaded no contest to attacking Maillelle and an 11-year-old with a wooden cane.

At the time, he told troopers to bring two extra officers when they flew into the village to pick him up, because "he might lose his temper at the airport," according to a trooper affidavit in that case.

In Noatak, the man accused of killing his wife with a crowbar, Jim V. Adams, had been charged with six counts of domestic violence, including three felonies, within the past decade. He pleaded those earlier charges down to misdemeanors. Over the years, three women filed domestic violence restraining orders against him.

Maillelle and Adams declined interview requests. Maillelle has not yet entered a plea; Adams denied killing his wife in an initial interview with troopers and has pleaded not guilty to murder and assault.

The deaths raise questions about the volume of domestic violence hidden from the public eye during the pandemic and highlight the limited reach of regional shelters that - like state troopers - rely on airplanes to serve vulnerable clients.

McGrath, population 289, stopped receiving visits from a local magistrate years ago, said Mayor Ralph Morgan. The only law enforcement is a wildlife trooper. When it was time for Holmberg to make his first court appearance on the murder charge, a magistrate 230 miles downriver in Aniak heard the case. That day, most of the cases on his docket involved family violence.

In fact, a ProPublica and Daily News analysis found that more than 70% of all criminal cases filed in the first half of the year at the Aniak courthouse included domestic violence charges. (Advocates for abuse survivors estimated that the percentage of criminal cases involving domestic violence in Anchorage is closer to 50%. A review of more than 1,000 cases filed there this year suggests the percentage is even lower.)

The domestic violence cases and family homicides now pending before the Aniak courthouse originated in 11 villages along the Kuskokwim and Yukon rivers. None of the communities has a local domestic violence shelter.

For six of the villages, the nearest shelter is in Bethel, which can be reached only by plane or boat, an average trip of 105 miles. The other five villages rely on Fairbanks, an average of 341 miles away, for emergency domestic violence services.

And air travel is hard to come by these days. Ravn Air Group, a major rural carrier that served much of Western Alaska and upriver villages such as McGrath, announced in April it was declaring bankruptcy and would park all 72 of its planes.

Ravn stopped making three weekly flights to McGrath as a result. A small Anchorage-based carrier that also flies to the village, Alaska Air Transit, temporarily reduced its schedule from four weekly flights to two early in the pandemic, co-owner Josie Owen said.

"A lot of our passenger travel just totally dropped off," she said.

Travel lockdowns limit shelter options

In the Yukon-Kuskokwim Delta, Interior and Northwest Arctic regions where troopers have reported recent domestic violence homicides, most public safety services are provided on a "hub-and-spoke" model.

Weather permitting, troopers fly from a small city to a village to investigate a crime. A survivor of violence might be whisked from her hometown to a shelter hundreds of miles away.

While village residents are still occasionally flying during the pandemic, some must ask tribal leaders for authorization to come and go.

In Emmonak, home to one of the only domestic violence shelters in Western Alaska, the tribe asks that people who travel from outside the community self-quarantine for two weeks to protect elders. As of early July, its shelter had temporarily stopped accepting clients from a dozen surrounding villages, financial clerk Travis Bird said.

"Since this pandemic started we aren't able to fly (clients) in," he said.

Meanwhile, one of the largest shelters in rural Alaska, Tundra Women's Coalition, has sought to reduce bed capacity by as much as 50% to allow for social distancing. No one whose life appears to be in danger from an abuser is turned away, and some clients are still arriving by plane and being screened for COVID-19 symptoms, executive director Eileen Arnold said.

With less space available, the shelter has pivoted to helping village residents who call the emergency hotline find safe houses and file requests for protective orders online.

"Domestic violence is not reducing as people quarantine with their abusers," said Lisa Whalen, development manager for the Bethel shelter. "We are trying to find ways to get people to safe places."

Carmen Lowry, executive director for the Alaska Network on Domestic Violence and Sexual Assault, said that fewer people are requesting restraining orders at Western Alaska courthouses.

"One thing to think about is accessibility," she said. "Literally, can you get into the courthouse?"

Protective orders can now be filed online, but many people may not know that, said Casto, director for the state Council on Domestic Violence and Sexual Assault.

Like many law enforcement agencies nationwide, Alaska state troopers are seeing fewer reports of certain crimes during the pandemic. Investigations into theft, non-domestic violence homicide, sex crimes and robbery are down this year compared with the first half of 2019.

But not family violence. Troopers received 1,724 reports of domestic violence assault in the first half of this year, up slightly from 1,676 statewide reports for the same period last year, according to the Department of Public Safety. In Bethel, the largest rural Alaska hub city, domestic violence calls to local police are up 7% this year compared with 2019.

While the number of sexual assaults reported to troopers is down statewide, service providers say that may mask the true number of offenses. In fact, Arnold said, the Bethel shelter appears to be seeing more demand for sexual assault response services, especially among children and teen victims.

For Price, the public safety commissioner who oversees the state troopers, the recent homicides signaled a clear warning.

"These deaths are tragic and a stark indication that the blight of domestic violence occurring across Alaska hasn't ebbed. The (Department of Public Safety) can't stop the violence alone; we need the public's help," Price said in a written statement.

In McGrath, many say they tried to help. They offered safe houses. Called troopers. The abuse continued. Even, one young woman said, after she tried to teach Holmberg a lesson.

'Want to see what a woman can do?'

The death of Abraham in McGrath has haunted Gover, Holmberg's ex-girlfriend. But it didn't really surprise her.

Gover and Holmberg had dated in the early 2000s. Gover, who is from the village of Nikolai about 40 miles east of McGrath, said Holmberg had a great sense of humor when he was sober. She lived with him off and on. Unlike Nikolai, where residents have voted to ban the sale and possession of alcohol, McGrath was and still is "wet." One reason she dated Holmberg, Gover said, is that he provided her with the alcohol her addiction demanded.

"I was fearing for my life a few times when I was with him," said Gover, who says she is now sober and working as an airport security officer. "He did choke me out one time."

Taylor remembers watching Holmberg fight with another man in her childhood living room. As she grew older, she dated Abraham's son and became close to Abraham.

Friends say Abraham was tall and slender with long, straight hair that framed her glasses. She had an easy laugh. She called everyone "angel" and bubbled with giddy energy. A few years ago she started dating Holmberg.

"She called me crying one day to ask me to come save her from him," said Taylor, who was staying in the house next door. "There were clumps of hair on the grass around the residence."

It was around June 2017. Taylor said she found Abraham covered in red welts; the bruises hadn't formed yet. Abraham said Holmberg had beaten her.

Taylor, 18 years old at the time, thought of Abraham as a second mother. She climbed the stairs to confront Holmberg.

"I grabbed a pipe wrench from the porch when I walked in and said something along the lines of: 'You like beating women? Want to see what a woman can do?'"

Taylor dropped the wrench - "I didn't need it," she said - and punched him in the face. "He was so embarrassed, he wouldn't open the door for days," she said.

A few months later, according to state troopers, Abraham phoned a relative to say she was in danger again. According to an account written by Trooper Anthony Wiles, Abraham was calling around looking for her son. She said something about needing help with her life insurance plan.

In a whisper, Abraham told a family member that "if anything happened to her it was Glen that did it because he told her he was going to kill her," the trooper wrote. But when an investigation began, Abraham later denied making the statement when interviewed by a trooper. Advocates say many criminal cases involving domestic violence stall when the victim recants or refuses to cooperate.

'This Is what we have been praying for'

Jennifer Baumgartner, owner of Hotel McGrath, has known Holmberg for years and is close friends with his sister. "His parents are like my parents," she said.

But she had seen that he, and other men in the village, could be dangerous.

"A few years ago, there was a woman in town. A very young woman who was being abused on a pretty regular basis," Baumgartner said. "My son and I were responding to finding her bloody and beaten in the middle of the road and kind of scooping her up and trying to get her healthy-ish again. And it kept happening."

A survivor of domestic violence herself, Baumgartner began texting others in the community. Over time, residents set up safe houses and quietly made rooms available to women who need to escape immediate danger overnight.

Abraham is one of the women who had sought help. But the night Abraham died, Baumgartner had no idea anything was wrong, she said.

The following morning Baumgartner woke up to a rumor that something had happened to Abraham. She biked to Holmberg's house. Painted ocean green with white trim, the home faces a wide ribbon of the Kuskokwim River. Moose antlers and no trespassing signs decorate the yard.

There she saw the local wildlife trooper standing within arm's reach of Holmberg.

"I was able to go right up to Glen and sit with him for a moment, not knowing what happened," Baumgartner said.

"It looked like he was just in shock. He was trying to speak but he really couldn't," she said.

As a favor to Holmberg's family, Baumgartner spent a few days cleaning up the crime scene. In nearly every room she found crayons, sticky notes and buckets emblazoned with a state anti-domestic violence slogan.

In 2019, Attorney General William P. Barr announced more than $52 million in funding for public safety in rural Alaska. Asked for an accounting of that spending, a Department of Justice spokesperson provided a two-page list of grants and awards to the state, tribes and individual villages including money for victim services, renovating buildings and the hiring of VPSOs. Baumgartner said she hasn't seen evidence of it yet in McGrath.

Advocates for domestic violence survivors say earlier Department of Justice grants, intended to reduce violence against indigenous women, have arrived in some villages and are being used to operate safe houses.

One hopeful sign can be found in the Bering Sea coastal village of Hooper Bay. On the same day that the string of five domestic violence homicides began, June 22, the village opened its first domestic violence shelter to the public.

"Elders are saying this is what we have been praying for, thinking about, talking about for so many years," Victim Services Coordinator Emma Smith said. "They are happy for their daughters and granddaughters or grandchildren."

After the funeral, a new attack

Taylor, who stood up to Holmberg as a teenager, is now 21. She returned to McGrath to work this summer as a Division of Forestry dispatcher and took a boat downriver for Abraham's funeral on July 10.

The services were held in Takotna, a nearby village even smaller than McGrath, where Abraham lived much of her life. The official population there is 72 people. Dozens attended the funeral, Taylor said.

The mourners wore face masks. Taylor helped carry the handmade coffin from the town hall, where photos of famous Iditarod mushers cover every wall, to a waiting grave. No one had much to say.

"It was too horrific," Taylor said.

A few days later, back in McGrath, troopers learned of another emergency. A woman had called a city phone number at 4:30 p.m. on July 15. (Dialing 911 in the village isn't so simple. The city of McGrath warns that your call may be dropped and that you should state your phone number quickly, in case the connection fails.)

When no one answered she left a message asking for help and for someone to come to her house. It sounded like she was sobbing, troopers wrote.

The next morning the woman was found beaten in the middle of the road.

The same wildlife trooper who had first responded to Abraham's death was in town and took the woman to the village clinic until a medevac flight arrived to take her 200 miles to an Anchorage hospital. She later told troopers that a 25-year-old man had been beating her off and on for three straight days.

The woman at the clinic told them the man gets jealous and hits her sometimes. He previously pleaded guilty to assaulting her in Anchorage in 2017 and, according to the city prosecutor's office, violated conditions of release that sought to prevent him from contacting her. (The man has not entered a plea in the new felony charge of domestic violence assault.)
If you or someone you know needs help, here are a few resources: * Contact the Alaska Network on Domestic Violence & Sexual Assault at 907-586-3650 or at * Contact the National Sexual Assault Hotline at 800-656-HOPE (4673) or at * Call STAR Alaska's 24-hour crisis line at 907-276-7273 or its toll-free crisis line at 800-478-8999 The Anchorage Daily News and ProPublica are continuing our work to report on sexual violence in Alaska. We've learned that in addition to seeking justice from law enforcement and the courts, many victims want their voices heard. If you're a survivor of sexual abuse by school personnel in Alaska and would like to share your story, you can do so here. You can also email us at alaska@propublica.org. We understand that your privacy is important. We won't publish any personal information you share without your explicit permission. http://www.rainn.org/get-help/national-sexual-assault-hotline http://www.andvsa.org/shelters-and-services/
In a new affidavit filed in state court, charging the man with felony assault, Trooper Jason Bohac wrote that he noticed that bruises covered the woman's body. Some old and some new.

"I thought I was going to die from him beating me," the woman said, describing running from the house without shoes.

She said, "He told me he was going to kill me."

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A 'blight' of domestic violence deaths strikes Alaska villages

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This article was produced in partnership with ProPublica as part of the ProPublica Local Reporting Network and is part of a continuing series, Lawless: Sexual violence in Alaska. COVID-19 has largely spared the villages of Western Alaska. Yet it has been a summer of burials.

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Coronavirus(Opens in new window) Alaska News Politics Opinions Talk to us(Opens in new window)

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Birthright Citizenship and President Trump

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Birthright Citizenship and President Trump

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Just a week before the midterm elections, President Donald Trump said he might eliminate birthright citizenship -- the longstanding policy that virtually anyone born on U.S. soil has citizenship. And he said he could use an executive order to do it.

It's an idea that Trump had publicly floated before. But he's never before been so clear about using an executive order.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump told Axios in an interview released on Oct. 30. "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."

Because this will ultimately be a question for the Supreme Court to resolve, we won't put it to the Truth-O-Meter. But experts say that Trump's assertion that he could use an executive order to overturn birthright citizenship is almost certainly wrong.

"If it's mandated by the Constitution, it can only be undone by a constitutional amendment," said Peter J. Spiro, a professor at Temple University Law School. "If it's mandated by statute, it can only be undone by a subsequent statute. It's only if it's mandated by neither that Trump could do it by executive order."

And most legal experts agree that birthright citizenship is bolstered by both the Constitution and by statute.

The legal underpinnings of birthright citizenship

The notion of birthright citizenship can be traced back as far as 1608 with a British decision in Calvin's Case, a decision that became part of the common law adopted in the early days of the U.S. legal system. Calvin's case granted subjectship -- a British concept that has since evolved into citizenship -- to all children born in Scotland except those of diplomats and enemy troops in hostile occupation.

There are three key pieces of legal precedent underpinning birthright citizenship, scholars say.

First, there's the Fourteenth Amendment to the Constitution. The relevant portion says that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

This amendment "was unquestionably intended to cover the children of unauthorized migrants, namely the children of enslaved persons brought here by criminals after the prohibition of the slave trade," said Gabriel (Jack) Chin, a law professor at the University of California-Davis.

Second, there's a 1952 statute (8 U.S. Code § 1401) that echoes the language in the Fourteenth Amendment. "The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof," the statute reads in part.

And third, there's an 1898 Supreme Court decision, known as the Wong Kim Ark case. In its 6-2 majority decision, the justices ruled that Wong -- and others born on United States soil, with a few clear exceptions -- did indeed qualify for citizenship under the 14th Amendment.

"The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens. ... The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States."

Legal scholars added that the longstanding application of birthright citizenship is itself a strong argument for keeping it in place.

The "consistent, systematic, and unbroken historical practice" is a strong argument against Trump's view, Spiro said. "For at least a century, the government has extended citizenship to the children of parents present in the United States in violation of the immigration laws. That practice counts for purposes of constitutional interpretation and statutory interpretation."

The importance of the phrase "subject to the jurisdiction thereof"

The wiggle room that exists for opponents of birthright citizenship involves the qualifier "subject to the jurisdiction thereof" -- wording that appears in both the constitutional amendment and the statute.

Traditionally, this phrase has been interpreted to exclude only the U.S.-born children of foreign diplomats or of enemy forces engaged in hostilities on U.S. soil. But those skeptical of the legal basis for birthright citizenship say that the Supreme Court has never specifically ruled on whether the children of illegal immigrants would qualify for birthright citizenship, since that wasn't at issue in the Wong Kim Ark case. ( Read more about this aspect of the Wong Kim Ark case.)

The same window holds for the drafters of the Fourteenth Amendment, legal experts say. "Because there weren't any federal immigration controls at the time the amendment was adopted in 1868, there's no direct evidence how the drafters intended it to apply to that category," Spiro said.

John C. Eastman, a law professor at Chapman University, has written that this provides a path for overturning birthright citizenship. He wrote that undocumented immigrants, like foreign tourists, "are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the Fourteenth Amendment as a precondition for automatic citizenship."

For this reason, Eastman argues, the ruling in Wong Kim Ark "does not mandate citizenship for children born to those who are unlawfully present in the United States."

Many legal scholars disagree with this logic.

"Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations - unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law," Ilya Shapiro has written for the libertarian Cato Institute. "The illegal immigrants' countries of origin can hardly make a 'jurisidictional' claim on kids born in America, at least while they're here. Thus, a natural reading of 'subject to the jurisdiction' suggests that the children of illegals are citizens if born here."

Could it be overturned by executive order?

It might be possible to overturn birthright citizenship by passage of a new statute, though even that's a minority view among legal scholars, said Jennifer M. Chacón a law professor at the UCLA School of Law. (She believes it would require a constitutional amendment.)

But even if that were possible, the notion that an executive order could accomplish it -- as Trump argues -- is dubious, legal experts said.

The president would effectively be "offering his interpretation" in an executive order, and this "tees up the lawsuit that will get the Supreme Court to rule, once and for all, what it means," said Mark Krikorian, executive director of the Center for Immigration Studies, a group that generally supports a tighter immigration system.

Kermit Roosevelt, a University of Pennsylvania law professor, agreed. Ending the practice of birthright citizenship "is something the president cannot accomplish by executive order," he said. The most the administration could do is "argue for its preferred interpretation in litigation. Executive orders can't amend statutes."

The most that Trump could do is sign such an executive order with the clear expectation that opponents would sue to block its implementation. After that, it would be up to the courts to decide the ultimate outcome.

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Can Trump end birthright citizenship by executive order?

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Just a week before the midterm elections, President Donald Trump said he might eliminate birthright citizenship -- the longstanding policy that virtually anyone born on U.S. soil has citizenship. And he said he could use an executive order to do it. It’s an idea that Trump had publicly floated before.

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Hours before it was to take effect, a federal judge in Hawaii issued a nationwide order on Tuesday blocking, for now, President Trump's third attempt at a travel ban. It would have indefinitely stopped almost all travel to the United States from seven countries, including most of the Muslim-majority nations included in his original travel ban.

Tuesday's ruling was yet another legal setback for one of Mr. Trump's earliest and most controversial efforts. The judge, Derrick K. Watson of Federal District Court in Honolulu, had previously blocked Mr. Trump's second travel ban from taking effect in March. The White House's first executive order sharply limiting travel from seven predominantly Muslim countries was blocked by a federal judge in Seattle.

The third executive order went further than the original, imposing permanent restrictions on travel instead of the original 90-day suspension. Under the newest version, most citizens of Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea were to be excluded from entering the United States, while citizens of Iraq and some groups of people in Venezuela who attempted to visit the United States would have faced extra barriers to entry. It was scheduled to go into effect on Wednesday.

"Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue," Judge Watson wrote in his order on Tuesday. The third travel ban, Judge Watson wrote, "suffers from precisely the same maladies as its predecessor."

The Justice Department did not immediately respond to the ruling on Tuesday. Judge Watson's earlier ruling on the second version of the travel ban was upheld by an appeals court, but the Supreme Court allowed portions of that travel ban to take effect.

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Judge Temporarily Halts New Version of Trump's Travel Ban

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Hours before it was to take effect, a federal judge in Hawaii issued a nationwide order on Tuesday blocking, for now, President Trump's third attempt at a travel ban. It would have indefinitely stopped almost all travel to the United States from seven countries, including most of the Muslim-majority nations included in his original travel ban.

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10 year old immigrant with cerebral palsy

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10 year old immigrant with cerebral palsy

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Federal officials on Friday released a 10-year-old girl with cerebral palsy who was detained in Texas Oct. 25 after undergoing surgery because she was an undocumented immigrant traveling without her parents.

Rosa Maria Hernandez was transported from a federally funded shelter in San Antonio, where she had been held for 10 days, to her family's home 150 miles south in the border city of Laredo. She was born in Mexico, but has lived in Texas since she was three months old.

"I am incredibly happy that she's going to be reunited with her mother and the rest of her family," said Andre Segura, legal director of the American Civil Liberties Union of Texas, which filed a lawsuit seeking her release this week. "The family is obviously very excited to have her back."

The girl's case sparked national outcry from members of Congress, physicians and lawyers who urged the government to let her go. Sen. Dianne Feinstein (D-Calif.) called on the Senate Judiciary Committee to hold a hearing and even celebrities got involved, such as Tony-award-winner Lin-Manuel Miranda, who tweeted #FreeRosa.

On Friday, as federal employees drove her home, advocates cheered the government's decision and called on the Trump administration to drop any plans it may still have to deport the girl.

Her lawyers said Rosa Maria has been served with a notice that she could face deportation but charges have not been officially filed in immigration court.

"This family has gone through enough," said Michael Tan, a staff attorney with the ACLU's Immigrants' Rights Project. "It is the most outrageous case I have ever worked on."

Rep. Joaquin Castro (D-Tex.) also urged the Trump administration to drop her case, saying, "The United States should not be a place where children seeking life-sustaining medical care are at risk of apprehension."

Immigration and Customs Enforcement, which handles the charges, did not immediately respond to a request for comment late Friday.

The U.S. Department of Health and Human Services also declined to comment. The agency oversees the Office of Refugee Resettlement, which cares for unaccompanied minors and arranges their release to parents or guardians.

The episode began in the early morning of Oct. 24, when Rosa Maria left her Laredo home in an ambulance to head to a scheduled gall bladder operation at a hospital in Corpus Christi.

Her mother, Felipa de la Cruz, who is also undocumented, did not accompany her daughter because she feared being detained at a Border Patrol checkpoint several miles inland. Instead, she signed documents authorizing a U.S. citizen cousin to travel with the child.

U.S. Customs and Border Protection officers screened the vehicle at the checkpoint and discovered that Rosa Maria was undocumented. They said federal law required them to take her into custody because she was undocumented and without her parents.

Border agents trailed her to the hospital, guarded her during the surgery and then took her into custody. The agents then turned her over to the Office of Refugee Resettlement.

While she was at the shelter, Tan said, the girl's parents told her she was in a hospital, to avoid frightening her with the prospect of deportation. She has the cognitive capacity of a 6-year-old child, and had never been away from her family before.

Still, during a visit with her father, Tan said, the girl burst into tears and pointed to the healing wound from her operation and asked why she couldn't go home.

"She's profoundly traumatized," Tan said.

Lawyers and advocates argued that the government should not have detained Rosa Maria because she had a family - parents and two sisters - in Laredo.

The case marked the second time in a month that the ACLU had sued the federal government over an undocumented minor in federal custody. Earlier, the organization represented a pregnant 17-year-old who had been blocked from obtaining an abortion while in a government-funded shelter. The D.C. appeals court ordered the government to let her have the procedure.

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U.S. frees 10-year-old undocumented immigrant with cerebral palsy

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Federal officials on Friday released a 10-year-old girl with cerebral palsy who was detained in Texas Oct. 25 after undergoing surgery because she was an undocumented immigrant traveling without her parents. Rosa Maria Hernandez was transported from a federally funded shelter in San Antonio, where she had been held for 10 days, to her family's home 150 miles south in the border city of Laredo.

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This ideological schism has shaped the current presidential election as well as ongoing congressional debates. Democrats have become increasingly pro-immigration while Republican voters and many members of Congress generally stand in opposition. It is this split that lies at the core of the contest between Hillary Clinton and Donald Trump.

Clinton described the principles underlying her position on immigration in a speech she gave in North Las Vegas last year:

If we claim we are for family, then we have to pull together and resolve the outstanding issues around our broken immigration system. The American people support comprehensive immigration reform not just because it's the right thing to do - and it is - but because they know it strengthens families, strengthens our economy, and strengthens our country.

The principles underlying Trump's position are diametrically opposed to those of Clinton. On his website, Trump declares:

When politicians talk about "immigration reform" they mean: amnesty, cheap labor and open borders. The Schumer-Rubio immigration bill was nothing more than a giveaway to the corporate patrons who run both parties. Real immigration reform puts the needs of working people first - not wealthy globetrotting donors. We are the only country in the world whose immigration system puts the needs of other nations ahead of our own.

Trump supporters, who are 87 percent white, are substantially more hostile to immigrants than the general public. A Pew study in August found that two thirds of Trump loyalists describe immigration as a "very big problem." Half of Trump voters believe immigrants "are more likely than American citizens to commit serious crimes," a figure that rises to 59 percent among his strongest supporters. In terms of work, 35 percent of Trump voters say immigrants take jobs from Americans, compared with 24 percent of all voters.

A March 2016 Pew poll found that a majority of all voters, 57 percent, said immigrants strengthen the country through hard work, compared with 20 percent of Trump voters. Thirty-five percent of all voters said immigrants burden the country "by taking jobs, housing and health care," compared with 69 percent of Trump supporters.

The accompanying chart from the book "Polarized America" by the political scientists Nolan McCarty, Keith T. Poole and Howard Rosenthal illustrates the linkage between immigration and political polarization. The chart shows that over the period from 1879 to 2013, divisions between House Democrats and Republicans rose when the level of immigration was high and dropped when the level fell.

Percent of

population that

is foreign born

Distance between the means of the two parties on a liberal-conservative spectrum.

Percent of

population that

is foreign born

Distance between the means of the two parties on a liberal-conservative spectrum.

The intensity of the conflict over immigration is on view in the contrasting arguments of pro- and anti- immigration forces on a relatively obscure issue, remittances sent by immigrants to their families in their native countries.

Conservative organizations seeking to reduce immigration levels argue that remittances are a drain on the American economy. Limits To Growth, for example, describes remittances as money "strip-mined from the United States by foreign workers" that could have been used for productive investment in this country.

The academy's report disputes that claim, citing studies showing that very small adverse economic consequences result from remittances, and numerous benefits, including

having a substantial and important role in moving funds from rich to poor countries, which is needed to speed up global growth and reduce cross-country inequality and possibly also international migration.

The views of Pia Orrenius, vice president and senior economist at the Dallas Federal Reserve, reveal the complications of the politics of immigration. Orrenius served on the National Academy of Sciences panel that produced the report and she makes the case that the " Benefits of Immigration Outweigh the Costs:"

Immigration fuels the economy. When immigrants enter the labor force, they increase the productive capacity of the economy and raise GDP." In addition, she continued, "immigrants grease the wheels of the labor market by flowing into industries and areas where there is a relative need for workers - where bottlenecks or shortages might otherwise damp growth. When immigrants enter the labor force, they increase the productive capacity of the economy and raise GDP.

But, Orrenius acknowledges there are downsides. Immigration

lowers the wages of competing workers, while raising the return to capital and the wages of complementary workers. In other words, the immigration surplus does not accrue equally to everyone. It goes primarily to the owners of capital, which includes business and landowners and investors.

Orrenius points out where the disadvantages of immigration primarily accrue:

Competing workers' wages fall, at least in the initial transition period as the economy adjusts to the new labor inflow. Research suggests that previous immigrants suffer more of the adverse wage effects than do natives. Research also suggests any negative wage effects are concentrated among low-skilled - not high-skilled - workers.

This conclusion, which is supported by many of the empirical studies included in the report, goes to the heart of a Democratic dilemma, which the party rarely addresses publicly.

On one hand, support for liberalized immigration policies, including a path to legal status and citizenship for the undocumented, is crucial to winning support from Hispanic voters. A majority of Latino voters have relatives, friends and co-workers who are in this country illegally and who live in fear of deportation.

Among Democrats of all ethnicities and races, support for immigration and immigrants has risen steadily.

Pew Research found in August that 78 percent of Democrats agreed with the statement that immigrants "strengthen the country through hard work," a view shared by 35 percent of Republicans. 88 percent of Democrats said undocumented immigrants should be granted legal status to stay in the United States.

At the same time, however, the costs of liberal immigration policies are borne most heavily by two key Democratic constituencies. Both are current targets of voter registration and get-out-the-vote drives: recent immigrants to this county and all workers without high school degrees, a group that is majority minority, 29.5 percent African-American and 35.2 percent Hispanic.

The economic winners from rising immigration levels are closely associated with the establishment wing of the Republican Party: "businesses and landowners and investors," as Orrenius noted. It is just this wing that Trump ran against during the primaries.

The National Academy notes the tension between winners and losers throughout the report:

The arrival of immigrants raises the overall income of the native population that absorbs them: the immigration surplus. This surplus is directly related to the degree to which immigration changes wages and returns to capital. In the simplest models, the more wages decline, the larger the surplus.

There is, however, no agreement on the scope or size of the lost wages resulting from immigration.

Jennifer Hunt, a professor of economics at Rutgers and a member of the academy panel, wrote in an email that "what we did not come to a consensus about was a number for the wage decrease experienced by native high school dropouts."

Not only was there no consensus on the academy panel on the size of the wage loss among native-born high school graduates, among immigration scholars there is a sharp debate over whether there is any loss at all.

George Borjas, an economist at Harvard and also a member of the academy panel, is a leading proponent of the argument that immigration produces substantial wage losses for native-born American workers, especially high school dropouts.

In a 2007 paper, " The Evolution of the Mexican-born Workforce in the United States," Borjas, writing with Lawrence Katz, also a professor of economics at Harvard, argued that:

Economic theory implies that immigration should lower the wage of competing workers and increase the wage of complementary workers. For example, an influx of foreign-born laborers reduces the economic opportunities for laborers - all laborers now face stiffer competition in the labor market. At the same time, high-skill natives may gain substantially. They pay less for the services that laborers provide, such as painting the house and mowing the lawn, and natives who hire these laborers can now specialize in producing the goods and services that better suit their skills.

Borjas separately concluded that all high-school dropouts experience a substantial wage loss from immigration of 6.3 percent in the short run and 3.1 percent over the long haul as labor markets adjust to the increased number of workers.

Katz said in an email exchange that his more recent work with Claudia Goldin, also a Harvard economist, has convinced him "that immigration is at most a small contributor to the awful real and relative wage performance of U.S. high school dropouts," whose relative wages "fell by 40 percent compared to college graduates" from 1980 to the early 2000s.

Katz's bottom line:

The effects of immigration range from 0 to a few percentage points and are swamped by the impacts of slowdown in U.S. education supplies, technological change, and eroding labor market institutions (unions, minimum wages, rising outsourcing/fissuring of the workplace).

David Card, an economist at the University of California-Berkeley, disputes Borjas's argument and contends that immigration inflicts little or no wage penalty on American workers and may in fact boost wages.

In an email exchange, Card wrote that his own research suggests that the effect of immigration on native-born workers without high school degrees "is zero."

While the most common assumption is that a larger work force drives down wages, in practice, "when you look at the evidence, larger population normally increases productivity," Card wrote.

For the immediate future, this and other issues involving immigration will not be resolved within academia, but litigated in the political arena. Governments everywhere will be challenged to better steer the transnational flow of populations. Still, I believe the future direction of immigration is clear.

If the anti-immigration forces gain ground in this election, such victories will prove short-lived. For one thing, the rise in global trade and financial transactions has been steady over the past 35 years.

Robert Shiller, the Nobel Prize-winning economist at Yale, maps out the probable future in his Sept. 19 essay, " The Coming Anti-National Revolution ":

For the past several centuries, the world has experienced a sequence of intellectual revolutions against oppression of one sort or another. These revolutions operate in the minds of humans and are spread - eventually to most of the world - not by war (which tends to involve multiple causes), but by language and communications technology. Ultimately, the ideas they advance - unlike the causes of war - become noncontroversial.

"As technology reduces the cost of transportation and communications to near the vanishing point, achieving this equalization is increasingly feasible. But getting there requires removing old barriers and preventing the erection of new ones," Shiller writes, concluding that

Ultimately, the next revolution will likely stem from daily interactions on computer monitors with foreigners whom we can see are intelligent, decent people - people who happen, through no choice of their own, to be living in poverty.

Before we get there, though, this year's candidates have made irreconcilable proposals on immigration.

Trump, in "Crippled America: How to Make America Great Again":

I want good people to come here from all over the world, but I want them to do so legally. We can expedite the process, we can reward achievement and excellence, but we have to respect the legal process. And those people who take advantage of the system and come here illegally should never enjoy the benefits of being a resident - or citizen - of this nation. So I am against any path to citizenship for undocumented workers or anyone else who is in this country illegally. They should - and need to - go home and get in line.

Clinton was more succinct:

If you work hard, if you love this country, if you contribute to it, and want nothing more than to build a good future for yourselves and your children, we should give you a way to come forward and become a citizen. And you know what? The majority of Americans agree. They know it's the right thing to do.

The outcome on Nov. 8 will not settle this dispute, but it will give us some indication of where those who support what they see as enlightened immigration policies stand as they face those who seek to restore a lost past.

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Opinion | What Does Immigration Actually Cost Us?

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This ideological schism has shaped the current presidential election as well as ongoing congressional debates. Democrats have become increasingly pro-immigration while Republican voters and many members of Congress generally stand in opposition. It is this split that lies at the core of the contest between Hillary Clinton and Donald Trump.

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The Supreme court has once again stepped into the fire of hot-button political issues. The court said Tuesday it would rule by summer on the legality of President Obama's executive action granting temporary legal status to as many as 4.5 million people who entered the U.S. illegally.

Fourteen months ago, Obama, frustrated by Congress' inability to act on immigration reform, issued an order expanding temporary legal status for some adults who entered the U.S. illegally.

The new order granted temporary legal status and work permits to illegal adult immigrants who had been in the U.S. for five years and who have children who are American citizens or lawful permanent residents. In addition, applicants had to register, pass a criminal background check, and prove they had paid their taxes. If they met all these criteria, they would be granted legal status and temporary work permits for three years.

The president said this change in immigration regulations would allow people to "come out of the shadows and get right with the law."

The president's action followed a similar temporary reprieve from deportation that he issued in 2012 for children age 15 and under brought to the U.S. illegally. Court challenges to that order failed.

Although many Republicans objected to the 2012 action for children, opposition was relatively muted. The most recent temporary reprieve for adults, however, infuriated the GOP.

Republicans blasted the president's action as "lawless," and a coalition of 26 states led by Texas challenged the executive action in court, contending that the president had exceeded his authority.

A year ago a federal judge blocked implementation of the new regime and a federal appeals court panel, by a 2-1 vote subsequently upheld the injunction on broader grounds. The Obama administration then asked the Supreme Court to review the case, and on Tuesday the justices said they would hear arguments in April, with a decision expected by late June.

If the court had refused to hear the case, the appeals court ruling would have stood, and the president's program would have been dead in the water.

But there is no assurance of how the court will rule. Indeed, the justices broadened the scope of the case, asking the two sides to address an additional, and fundamental question: whether the president's action violates the Constitution's requirement that the president "shall take care that the laws be faithfully executed."

The addition of that question is seen as "a good omen" by many conservatives, like Jay Sekulow of the American Center for Law and Justice. "I think the adding of that question ... helps those of us that are concerned that the president overreached here," Sekulow said.

He is filing a brief opposing the president's action on behalf of 88 congressmen and 25 senators, including the two Texas senators, Ted Cruz and John Cornyn. Dozens of other groups, on both sides, are expected to weigh in.

Marielena Hincapié, of the National Immigration Law Center notes, for instance, that President Obama's immigration action is similar to those "used by every administration, both Republican and Democrat, since President Eisenhower.

Duquesne Law School Dean Kenneth Gormley, author of a new history of presidential power, observes that "There have been battles over these issues dating back to George Washington." In this case, he views the states' case as "particularly weak" because in general the Constitution leaves questions of immigration and naturalization to the federal government so that the nation has a uniform system.

Gormley sees "the real battle lines" in the case as "between President Obama and Congress" and the critical question as whether the President exceeded his power under congressional enacted statutes.

For those charged with carrying out immigration laws - many of which are in fact presidential actions - the critical question may be the first one presented in the case: whether Texas has the legal standing to sue in the first place.

In order to have such standing, a state has to show that it would be injured in a concrete way if the president's action were to be carried out. Texas asserts, and the appeals court agreed, that it would be injured because it would have to spend millions of dollars to provide drivers' licenses for immigrants with temporary legal status as a result of the federal program.

The Obama administration counters that there is no requirement that Texas provide licenses at a financial loss and that the state is free to charge the full cost of the license.

It may seem like nitpicking to some, but Stephen Legomsky, a former top immigration official, says that if any state can challenge an executive action on immigration, "the result would be that practically any favorable decision by the federal government on an immigration matter would give rise to lengthy lawsuits." That, he said, would be "a recipe for a government paralysis."

The addition of the U.S. v. Texas case to the Supreme Court docket this term means that just as the two political parties are about to choose their presidential nominees, the High Court will be deciding cases involving race and affirmative action, abortion, birth control, and now, immigration.

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Supreme Court To Review If Obama Immigration Actions Were 'Faithfully Executed'

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The Supreme court has once again stepped into the fire of hot-button political issues. The court said Tuesday it would rule by summer on the legality of President Obama's executive action granting temporary legal status to as many as 4.5 million people who entered the U.S. illegally.

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Video about a type of Ranked choice voting

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Video about a type of Ranked choice voting

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https://www.equal.vote/starvoting

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In STAR Voting, the winner is determined in two simple steps. First, all the scores for all the candidates are added up. The second step is an automatic runoff between the two highest scoring candidates. In the runoff, your full vote is automatically assigned to whichever of the top two you rated higher.

The ballot shows both your level of support for and preferences between the candidates. If you give two candidates the same score, you express no preference between them should they both be finalists.

A hypothetical election result might look like this:

In the election above, Desi and Bianca advance to the automatic runoff because they are the two top scorers. So if your ballot looked like the one above, your full runoff vote would go to Bianca, because you gave her a 5 and you gave Desi a 3. The existence of the runoff step makes the scoring more honest: you have an incentive to differentiate candidate scores in order to have a voice in the second step.

Compare Options for Reform

Ranked Choice Voting (RCV) systems use the voters' preference orders of the candidates to determine the winner. By the measures above, STAR is superior to Instant Runoff Voting, the RCV system that has been the focus of recent national electoral reform efforts.

Top Two runoff systems have been adopted in several states including California and Washington. Compared to Top Two, STAR more accurately reflects the will of the voters and is less expensive for states to operate and for candidates to participate. Read more about STAR Voting versus Top Two systems.

Approval Voting and the more generalized Range Voting use the voter's rating of each candidate to determine the winner. Most rating systems don't also account for the voter's specific preferences between candidates. Because STAR uses the ranked preferences of the voters as well as their overall scores, it answers the strategic voting criticisms of Approval and Range Voting.
The Plan:
Check out the reform plan and then to pitch in the effort!

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In STAR Voting, the winner is determined in two simple steps. First, all the scores for all the candidates are added up. The second step is an automatic runoff between the two highest scoring candidates. In the runoff, your full vote is automatically assigned to whichever of the top two you rated higher.

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Western Democracy Is Threatening Suicide

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Recent waves of populism and nationalism - including those that fueled Brexit and Donald Trump - have some fearing the end of Western democracy. But are these events really a threat to the liberal world order?

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Give Undocumented Immigrants a Path to Citizenship

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There are an estimated 11 million undocumented immigrants in the United States, and the question of what to do with them has sparked years of fierce debate, but no significant action. Should we give undocumented immigrants a path to citizenship?

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Interactive Constitution with great essays linked to specific articles

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Interactive Constitution with great essays linked to specific articles

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National Constitution Center - The 1st Article of the U.S. Constitution

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The 1st Article of the U.S. Constitution

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SECTION. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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Book Excerpt

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Map created using 270 To Win, based on reddit user Taillesskangaru's posts here and updated here.

The map above shows what the 2016 US Presidential Election results would have been if votes not cast for Hillary, Trump or one of the third party candidates had gone to fictional candidate "Did Not Vote."

See the 2020 results here.

Disclaimer: The map above was accurate as of January 17th, 2017. Totals below were true at the time of writing but may no longer currently be accurate as additional votes and recounts are conducted.

Only 8 states + Washington DC, had high enough voter turnouts where one of the actual candidates won more votes than people who did not bother to vote. Iowa and Wisconsin for Trump and Colorado, Maine, Maryland, Massachusetts, Minnesota, New Hampshire and DC for Clinton.

A few other 2016 election facts for you:

As a percentage of eligible voters, Clinton received 28.43% (65,845,063) of all votes compared to Trump's 27.20% (62,980,160) and Did Not Vote's 44.37% (102,731,399).

Total voter turnout was estimated to be 55.3% of the voting age population and 59.0% of the voting eligible population.

It is the 5th election since 1820 when the winner of the popular vote lost the presidency (the others being 1824, 1876, 1888, and 2000)

Donald Trump received 2,046,656 more votes than Romney did in 2012, but Hilary Clinton received 70,732 fewer votes than Obama did in 2012.

Neither Candidate even won a majority of votes cast, Clinton got 48.0% vs Trump's 45.9%.

As a percentage of the entire US population (including those too young or other ineligible to vote) Clinton got votes from 20.30% of the population and Trump got votes from 19.41% of people.

Washington DC is the only area in the country where a majority of all eligible voters (whether they voted or not) voted for Clinton (90% of voters, voted for Clinton on a 55.7% turnout). In the other 6 states listed above, victories were simple pluralities.

Like to see more 2016 US election maps?

Find this map interesting? The please help us by sharing it:

Filed Under: Tagged With: United States election

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If "Did Not Vote" Had Been A Candidate In The 2016 US Presidential...

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Map created using 270 To Win, based on reddit user Taillesskangaru's posts here and updated here. The map above shows what the 2016 US Presidential Election results would have been if votes not cast for Hillary, Trump or one of the third party candidates had gone to fictional candidate "Did Not...

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Soldiers National Cemetery

&copy Abraham Lincoln Online

Gettysburg, Pennsylvania
November 19, 1863

On June 1, 1865, Senator Charles Sumner referred to the most famous speech ever given by President Abraham Lincoln. In his eulogy on the slain president, he called the Gettysburg Address a "monumental act." He said Lincoln was mistaken that "the world will little note, nor long remember what we say here." Rather, the Bostonian remarked, "The world noted at once what he said, and will never cease to remember it. The battle itself was less important than the speech."

There are five known copies of the speech in Lincoln's handwriting, each with a slightly different text, and named for the people who first received them: Nicolay, Hay, Everett, Bancroft and Bliss. Two copies apparently were written before delivering the speech, one of which probably was the reading copy. The remaining ones were produced months later for soldier benefit events. Despite widely-circulated stories to the contrary, the president did not dash off a copy aboard a train to Gettysburg. Lincoln carefully prepared his major speeches in advance; his steady, even script in every manuscript is consistent with a firm writing surface, not the notoriously bumpy Civil War-era trains. Additional versions of the speech appeared in newspapers of the era, feeding modern-day confusion about the authoritative text.

Bliss Copy

Ever since Lincoln wrote it in 1864, this version has been the most often reproduced, notably on the walls of the Lincoln Memorial in Washington. It is named after Colonel Alexander Bliss, stepson of historian George Bancroft. Bancroft asked President Lincoln for a copy to use as a fundraiser for soldiers (see "Bancroft Copy" below). However, because Lincoln wrote on both sides of the paper, the speech could not be reprinted, so Lincoln made another copy at Bliss's request. It is the last known copy written by Lincoln and the only one signed and dated by him. Today it is on display at the Lincoln Room of the White House.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln
November 19, 1863
Nicolay Copy
Named for John G. Nicolay, President Lincoln's personal secretary, this is considered the "first draft" of the speech, begun in Washington on White house stationery. The second page is writen on different paper stock, indicating it was finished in Gettysburg before the cemetery dedication began. Lincoln gave this draft to Nicolay, who went to Gettysburg with Lincoln and witnessed the speech. The Library of Congress owns this manuscript.

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met on a great battle field of that war. We come to dedicate a portion of it, as a final resting place for those who died here, that the nation might live. This we may, in all propriety do.

But, in a larger sense, we can not dedicate we can not consecrate we can not hallow, this ground The brave men, living and dead, who struggled here, have hallowed it, far above our poor power to add or detract. The world will little note, nor long remember what we say here; while it can never forget what they did here.

It is rather for us, the living, we here be dedicated to the great task remaining before us that, from these honored dead we take increased devotion to that cause for which they here, gave the last full measure of devotion that we here highly resolve these dead shall not have died in vain; that the nation, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.
Hay Copy
Believed to be the second draft of the speech, President Lincoln gave this copy to John Hay, a White House assistant. Hay accompanied Lincoln to Gettysburg and briefly referred to the speech in his diary: "the President, in a fine, free way, with more grace than is his wont, said his half dozen words of consecration." The Hay copy, which includes Lincoln's handwritten changes, also is owned by the Library of Congress.

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met here on a great battlefield of that war. We have come to dedicate a portion of it, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense, we can not dedicate we can not consecrate we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but can never forget what they did here.

It is for us, the living, rather to be dedicated here to the unfinished work which they have, thus far, so nobly carried on. It is rather for us to be here dedicated to the great task remaining before us that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion that we here highly resolve that these dead shall not have died in vain; that this nation shall have a new birth of freedom; and that this government of the people, by the people, for the people, shall not perish from the earth.
Everett Copy
Edward Everett, the chief speaker at the Gettysburg cemetery dedication, clearly admired Lincoln's remarks and wrote to him the next day saying, "I should be glad, if I could flatter myself that I came as near to the central idea of the occasion, in two hours, as you did in two minutes." In 1864 Everett asked Lincoln for a copy of the speech to benefit Union soldiers, making it the third manuscript copy. Eventually the state of Illinois acquired it, where it's preserved at the Abraham Lincoln Presidential Library and Museum.

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting-place for those who here gave their lives, that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here.

It is for us, the living, rather, to be dedicated here to the unfinished work which they who fought here, have, thus far, so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us that from these honored dead we take increased devotion to that cause for which they here gave the last full measure of devotion that we here highly resolve that these dead shall not have died in vain that this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish from the earth.
Bancroft Copy
As noted above, historian George Bancroft asked President Lincoln for a copy to use as a fundraiser for soldiers. When Lincoln sent his copy on February 29, 1864, he used both sides of the paper, rendering the manuscript useless for lithographic engraving. So Bancroft kept this copy and Lincoln had to produce an additional one (Bliss Copy). The Bancroft copy is now owned by Cornell University.

Four score and seven years ago our fathers brought forth, on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting-place for those who here gave their lives, that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us that from these honored dead we take increased devotion to that cause for which they here gave the last full measure of devotion - that we here highly resolve that these dead shall not have died in vain that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.

Source for all versions: Collected Works of Abraham Lincoln, edited by Roy P. Basler and others.

Related Links

A Teacher's Tour of the Battle of Gettysburg (Matthew Pinsker/Gilder Lehrman Institute)
Battlefield Maps (Library of Congress)
Civil War Institute (Gettysburg College)
Edward Everett's Gettysburg Speech (University of Maryland)
Gettysburg Address Exhibit (Library of Congress)
Gettysburg Address Eyewitness (National Public Radio)
Gettysburg Address News Article (New York Times)
Gettysburg Address Teacher Resource (C-SPAN)
Gettysburg Address Text
Gettysburg Civil War Photographs (Library of Congress)
Gettysburg Discussion Group (Bob & Dennis Lawrence)
Gettysburg Foundation
Gettysburg National Military Park (NPS)
How Some Few "Remarks" Became the Gettysburg Address (LAP/ALI)
David Wills's Letter of Invitation to Lincoln (Library of Congress)
Lincoln and the Gettysburg Awakening (JALA)
Lincoln and Gettysburg Timeline
Lincoln Fellowship of Pennsylvania
Lincoln's Invitation to Stay Overnight (Library of Congress)
Edward Everett's Letter to Lincoln (Library of Congress)
Photograph of Lincoln at Gettysburg (Library of Congress)
Reading of the Gettysburg Address (NPR)
Recollections of Lincoln at Gettysburg (Bob Cooke)
Response to a Serenade
Robert Todd Lincoln's "Gettysburg Story" (JALA)
Seminary Ridge Museum
Solving the Mysteries of the Gettysburg Address (LAP/ALI)
The Gettysburg Powerpoint Presentation (Peter Norvig)
Who Stole the Gettysburg Address? (JALA)
Wills House

Related Books

Boritt, Gabor. The Gettysburg Gospel: The Lincoln Speech That Nobody Knows. Simon & Schuster, 2006.

Graham, Kent. November: Lincoln's Elegy at Gettysburg. Indiana University Press, 2001.

Hoch, Bradley R. and Boritt, Gabor S. The Lincoln Trail in Pennsylvania. Pennsylvania State University Press, 2001.

Johnson, Martin P. Writing the Gettysburg Address. University Press of Kansas, 2013.

Kunhardt, Philip B., Jr. A New Birth of Freedom - Lincoln at Gettysburg. Boston: Little, Brown, 1983.

Mearns, David C., Dunlap, Lloyd A., Wilson, Douglas L., and Sellers, John R., contributors. Long Remembered: Lincoln and His Five Versions of the Gettysburg Address. Levenger Press, 2011.

Wills, Garry. Lincoln at Gettysburg: The Words That Remade America. Touchstone Books, 1993.

Wilson, Douglas L. Lincoln's Sword: The Presidency and the Power of Words. Alfred A. Knopf, 2006
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The Gettysburg Address by Abraham Lincoln

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Soldiers National Cemetery &copy Abraham Lincoln Online Gettysburg, Pennsylvania November 19, 1863 On June 1, 1865, Senator Charles Sumner referred to the most famous speech ever given by President Abraham Lincoln. In his eulogy on the slain president, he called the Gettysburg Address a "monumental act."

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Español We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Preamble to the Declaration of Independence The Declaration of Independence states…

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Thomas Jefferson to Richard Price - Thomas Jefferson | Exhibitions - Library of Congress

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The Library of Congress > Exhibitions > Thomas Jefferson > Thomas Jefferson to Richard Price

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1. Democracy Defined

The term "democracy", as we will use it in this entry, refers very generally to a method of collective decision making characterized by a kind of equality among the participants at an essential stage of the decision-making process. Four aspects of this definition should be noted. First, democracy concerns collective decision making, by which we mean decisions that are made for groups and are meant to be binding on all the members of the group. Second, we intend for this definition to cover many different kinds of groups and decision-making procedures that may be called democratic. So there can be democracy in families, voluntary organizations, economic firms, as well as states and transnational and global organizations. The definition is also consistent with different electoral systems, for example first-past-the-post voting and proportional representation. Third, the definition is not intended to carry any normative weight. It is compatible with this definition of democracy that it is not desirable to have democracy in some particular context. So the definition of democracy does not settle any normative questions. Fourth, the equality required by the definition of democracy may be more or less deep. It may be the mere formal equality of one-person one-vote in an election for representatives to a parliament where there is competition among candidates for the position. Or it may be more robust, including substantive equality in the processes of deliberation and coalition building leading up to the vote. "Democracy" may refer to any of these political arrangements. It may involve direct referenda of the members of a society in deciding on the laws and policies of the society or it may involve the participation of those members in selecting representatives to make the decisions.

The function of normative democratic theory is not to settle questions of definition but to determine which, if any, of the forms democracy may take are morally desirable and when and how. To evaluate different moral justifications of democracy, we must decide on the merits of the different principles and conceptions of human beings and society from which they proceed.

2. The Justification of Democracy

In this section, we examine different views concerning the justification of democracy. Proposed justifications of democracy identify values or reasons that support democracy over alternative forms of decision-making, such as oligarchy or dictatorship. It is important to distinguish views concerning the justification of democracy from views concerning the authority of democracy, which we examine in section 3. Attempts to establish democratic authority identify values or reasons in virtue of which subjects have a duty to obey democratic decisions. Justification and authority can come apart (Simmons 2001: ch. 7)-it is possible to hold that the balance of values or reasons supports democracy over alternative forms of decision-making while denying that subjects have a duty to obey democratic decisions.

We can evaluate the justification of democracy along at least two different dimensions: instrumentally, by reference to the outcomes of using it compared with other methods of political decision; or intrinsically, by reference to values that are inherent in the method.

2.1 Instrumentalism

2.1.1 Instrumental arguments in favor of democracy

Two kinds of in instrumental benefits are commonly attributed to democracy: (1) the production of relatively good laws and policies and (2) improvements in the characters of the participants.

2.1.1.1 The production of relatively good laws and policies: responsiveness theories

It is often argued that democratic decision-making best protects subjects' rights or interests because it is more responsive to their judgments or preferences than competing forms of government. John Stuart Mill, for example, argues that since democracy gives each subject a share of political power, democracy forces decision-makers to take into account the rights and interests of a wider range of subjects than are taken into account under aristocracy or monarchy (Mill 1861: ch. 3). There is some evidence that as groups are included in the democratic process, their interests are better advanced by the political system. For example, when African Americans regained the right to vote in the United States in 1965, they were able to secure many more benefits from the state than previously (Wright 2013). Economists argue that democracy promotes economic growth (Acemoglu et al. 2019). Several contemporary authors defend versions of this instrumental argument by pointing to the robust empirical correlation between well-functioning democratic institutions and the strong protection of core liberal rights, such as rights to a fair trial, bodily integrity, freedom of association, and freedom of expression (Gaus 1996: ch. 13; Christiano 2011; Gaus 2011: ch. 22).

A related instrumental argument for democracy is provided by Amartya Sen, who argues that

no substantial famine has ever occurred in any independent country with a democratic form of government and a relatively free press. (Sen 1999: 152)

The basis of this argument is that politicians in a multiparty democracy with free elections and a free press have incentives to respond to the expressions of needs of the poor.

2.1.1.2 The production of relatively good laws and policies: epistemic theories

Epistemic justifications of democracy argue that, under the right conditions, democracy is generally more reliable than alternative methods at producing political decisions that are correct according to procedure-independent standards. While there are many different explanations for the reliability of democratic decision-making, we outline three of the most prominent explanations here: (1) Condorcet's Jury Theorem, (2) the effects of cognitive diversity, and (3) information gathering and sharing.

The most prominent explanation for democracy's epistemic reliability rests on Condorcet's Jury Theorem (CJT), a mathematical theorem developed by eighteenth-century mathematician the Marquis de Condorcet that builds on the so-called "law of large numbers". CJT states that, when certain assumptions hold, the probability that a majority of voters support the correct decision increases and approaches one as the number of voters increases. The assumptions are (Condorcet 1785):

1. each voter is more likely than not to identify the correct decision (the competence assumption);

2. voters vote for what they believe is the correct decision (the sincerity assumption);

3. votes are statistically independent of one another (the independence assumption).

While Condorcet's original proof was restricted to decisions with only two choices, more recent work argues that CJT can be extended to decisions with three or more choices (List & Goodin 2001). The use of CJT to explain democracy's reliability is often thought to originate with Jean-Jacques Rousseau's claim that

[i]f, when a sufficiently informed populace deliberates, the citizens were to have no communication among themselves, the general will would always result from the large number of small differences, and the deliberation would always be good. (Rousseau 1762: Book III, ch. IV)

Contemporary theorists continue to rely on CJT, or variants of it, to justify democracy (Barry 1965; Cohen 1986; Grofman and Feld 1988; Goodin & Spiekermann 2019).

The appeal of CJT for epistemic democrats derives from the fact that, if its underlying assumptions are satisfied, decisions produced by even moderately-sized electorates are almost certain to be correct. For example, if the assumptions of CJT hold for an electorate of 10,000 voters, and if each voter is 51 percent likely to identify the correct decision of two options, then the probability that a majority will select the correct decision is 99.97 percent. The formal mathematics of CJT are not subject to dispute. However, critics of CJT-based arguments for democracy argue that the assumptions underlying CJT are rarely, if ever, satisfied in actual democracies (see Black 1963: 159-65; Ladha 1992; Estlund 1997b; 2008: ch. XII; Anderson 2006). First, many have remarked that voters' opinions are not independent of each other. Indeed, the democratic process seems to emphasize persuasion and coalition building. Second, the theorem does not seem to apply to cases in which the information that voters have access to, and on the basis of which they make their judgments, is segmented in various ways. Segmentation occurs when some sectors of the society do not have the relevant information while others do have it. Modern societies and politics seem to instantiate this kind of segmentation in terms of class, race, ethnic groupings, religion, occupational position, geographical place and so on. Finally, all voters approach issues they have to make decisions on with strong ideological biases that undermine the claim that each voter is bringing a kind of independent observation on the nature of the common good to the vote.

Advocates of CJT-based justifications of democracy generally respond to these sorts of criticisms by attempting to develop variations of CJT with weaker assumptions. These assumptions are more easily satisfied in democracies and so the revised theorems may show that even moderately-sized electorates are almost certain to produce correct decisions (Grofman & Feld 1988; Austen-Smith 1992; Austen-Smith & Banks 1996).

A second common epistemic justification for democracy-which is often traced to Aristotle ( Politics, Book II, Ch. 11; see Waldron 1995)-argues that democratic procedures are best able to exploit the underlying cognitive diversity of large groups of citizens to solve collective problems. Since democracy brings a lot of people into the process of decision making, it can take advantage of many sources of information and perspectives in assessing proposed laws and policies. More recently, Hélène Landemore (2013) has drawn on the "diversity-trumps-ability" theorem of Scott Page and Lu Hong (Hong & Page 2004; Page 2007)-which states that a random collection of agents drawn from a large set of limited-ability agents typically outperforms a collection of the very best agents from that same set-to argue that democracy can be expected to produce better decisions than rule by experts. Both Page and Hong's original theorem and Landemore's use of it to justify democracy are subject to dispute (see Quirk 2014; Brennan 2014; Thompson 2014; Bajaj 2014).

A third common epistemic justification for democracy relies on the idea that democratic decision-making tends to be more informed than other forms of decision-making about the interests of citizens and the causal mechanisms necessary to advance those interests. John Dewey argues that democracy involves "a consultation and a discussion which uncovers social needs and troubles". Even if experts know how best to solve collective problems, they need input from the masses to correct their biases tell them where the problems lie (Dewey 1927 [2012: 154-155]; see also Anderson 2006; Knight & Johnson 2011).

2.1.1.3 Character-based arguments

Many have endorsed democracy on the grounds that democracy has beneficial effects on the characters of subjects. Many agree with Mill and Rousseau that democracy tends to make people stand up for themselves more than other forms of rule do because it makes collective decisions depend on their input more than monarchy or aristocracy do. Hence, in democratic societies individuals are encouraged to be more autonomous. Relatedly, by giving citizens a share of control over political-decision-making, democracy cultivates citizens with active and productive characters rather than passive characters. In addition, it has been argued that democracy tends to get people to think carefully and rationally more than other forms of rule because it makes a difference to political outcomes whether they do or not. Finally, some argue that democracy tends to enhance the moral qualities of citizens. When they participate in making decisions, they have to listen to others, they are called upon to justify themselves to others and they are forced to think in part in terms of the interests of others. Some have argued that when people find themselves in this kind of circumstance, they can be expected genuinely to think in terms of the common good and justice. Hence, some have argued that democratic processes tend to enhance the autonomy, rationality, activity, and morality of participants. Since these beneficial effects are thought to be worthwhile in themselves, they count in favor of democracy and against other forms of rule (Mill 1861 [1991: 74]; Elster 1986 [2003: 152]; Hannon 2020).

Some argue in addition that the above effects on character tend to enhance the quality of legislation as well. A society of autonomous, rational, active, and moral decision-makers is more likely to produce good legislation than a society ruled by a self-centered person or a small group of persons who rule over slavish and unreflective subjects. Of course, the soundness of any of the above arguments depends on the truth of the causal theories of the consequences of different institutions.

2.1.2 Instrumental arguments against democracy

Not all instrumental arguments favor democracy. Plato argues that democracy is inferior to various forms of monarchy, aristocracy and even oligarchy on the grounds that democracy tends to undermine the expertise necessary to the proper governance of societies (Plato 1974, Book VI). Most people do not have the kinds of intellectual talents that enable them to think well about the difficult issues that politics involves. But in order to win office or get a piece of legislation passed, politicians must appeal to these people's sense of what is right or not right. Hence, the state will be guided by very poorly worked out ideas that experts in manipulation and mass appeal use to help themselves win office. Plato argues instead that the state should be ruled by philosopher-kings who have the wisdom and moral character required for good rule. He thus defends a version of what David Estlund calls "epistocracy", a form of oligarchy that involves rule by experts (Estlund 2003).

Mill defends a form of epistocracy that is sometimes referred to as the "plural voting" scheme (1861: ch. 4). While all rational adults get at least one vote under this scheme, some citizens get a greater number of votes based on satisfying some measure of political expertise. While Mill identifies the relevant measure of expertise in terms of formal education, the plural voting scheme is consistent with other measures. This scheme might be thought to combine the instrumental value of political expertise with the intrinsic value of broad inclusion.

One objection to any form of epistocracy-the demographic objection -holds that any criterion of expertise is likely to select demographically homogeneous individuals who are be biased in ways that undermine their ability to produce political outcomes that promote the general welfare (Estlund 2003).

Hobbes argues that democracy is inferior to monarchy because democracy fosters destabilizing dissension among subjects (Hobbes 1651: chap. XIX). On his view, individual citizens and even politicians are apt not to have a sense of responsibility for the quality of legislation because no one makes a significant difference to the outcomes of decision making. As a consequence, citizens' concerns are not focused on politics and politicians succeed only by making loud and manipulative appeals to citizens in order to gain more power, but all lack incentives to consider views that are genuinely for the common good. Hence the sense of lack of responsibility for outcomes undermines politicians' concern for the common good and inclines them to make sectarian and divisive appeals to citizens.

Many contemporary theorists expand on these Platonic and Hobbesian criticisms. A good deal of empirical data shows that citizens of large-scale democracies are ill-informed and apathetic about politics. This makes room for special interests to control the behavior of politicians and use the state for their own limited purposes all the while spreading the costs to everyone. Moreover, there is empirical evidence that democratic citizens often engage in motivated reasoning that unconsciously aims to affirm their existing political identities rather than arrive at correct judgments (Lord, Ross, & Lepper 1979; Bartels 2002; Kahan 2013; Achen & Bartels 2016). Some theorists argue that these considerations justify abandoning democracy altogether, while modest versions of these arguments have been used to justify modification of democratic institutions (Caplan 2007; Somin 2013; Brennan 2016). Relatedly, some theorists argue that rather than having beneficial effects on the characters of subjects as Mill and others argue, democracy actually has deleterious effects on the subjects' characters and relationships (Brennan 2016: ch. 3).

2.1.3 Grounds for instrumentalism

Pure instrumentalists argue that these instrumental arguments for and against the democratic process are the only bases on which to evaluate the justification of democracy or compare it with other forms of political decision-making. There are a number of different kinds of argument for pure instrumentalism. One kind of argument proceeds from a more general moral theory. For example, classical utilitarianism has no room in its monistic axiology for the intrinsic values of fairness and liberty or the intrinsic importance of an egalitarian distribution of political power. Its sole concern with maximizing utility-understood as pleasure or desire satisfaction-guarantees that it can provide only instrumental arguments for and against democracy.

But one need not be a thoroughgoing utilitarian to argue for instrumentalism in democratic theory. There are arguments in favor of instrumentalism that pertain directly to the question of democracy and collective decision making generally. One argument states that political power involves the exercise of power of some over others. And it argues that the exercise of power of one person over another can only be justified by reference to the protection of the interests or rights of the person over whom power is exercised. Thus no distribution of political power could ever be justified except by reference to the quality of outcomes of the decision making process (Arneson 1993 [2002: 96-97]; 2003; 2004; 2009). Another sort of argument for instrumentalism proceeds negatively, attempting to show that the non-instrumental values most commonly used in attempted justifications for democracy do not actually justify democracy, and that an instrumental justification for democracy is therefore the only available sort of justification (Wall 2007).

Other arguments question the coherence of the idea of intrinsically fair collective decision making processes. For instance, social choice theory questions the idea that there can be a fair decision making function that transforms a set of individual preferences into a rational collective preference. The core objection is that no general rule satisfying reasonable constraints can be devised that can transform any set of individual preferences into a rational social preference. And this is taken to show that democratic procedures cannot be intrinsically fair (Riker 1982: 116). Ronald Dworkin argues that the idea of equality, which is for him at the root of social justice, cannot be given a coherent and plausible interpretation when it comes to the distribution of political power among members of the society. The relation of politicians to citizens inevitably gives rise to inequality; the process of democratic deliberation inevitably gives those with superior argument making abilities and greater willingness to participate more influence and therefore more power, than others, so equality of political power cannot be intrinsically fair or just (Dworkin 2000). In later work, Dworkin has pulled back from this originally thoroughgoing instrumentalism (Dworkin 1996).

2.2 Non-instrumentalism

Few theorists deny that political institutions must be at least in part evaluated in terms of the outcomes of having those institutions. Some argue in addition, that some forms of decision making are morally desirable independent of the consequences of having them. A variety of different approaches have been used to show that democracy has this kind of intrinsic value.

2.2.1 Liberty

One prominent justification for democracy appeals to the value of liberty. According to one version of the view, democracy is grounded in the idea that each ought to be master of his or her life. Each person's life is deeply affected by the larger social, legal and cultural environment in which he or she lives. Only when each person has an equal voice and vote in the process of collective decision-making will each have equal control over this larger environment. Thinkers such as Carol Gould conclude that only when some kind of democracy is implemented, will individuals have a chance at self-government (Gould 1988: 45-85). Since individuals have a right of self-government, they have a right to democratic participation. The idea is that the right of self-government gives one a right, within limits, to do wrong. Just as an individual has a right to make some bad decisions for himself or herself, so a group of individuals have a right to make bad or unjust decisions for themselves regarding those activities they share.

One major difficulty with this line of argument is that it appears to require that the basic rule of decision-making be consensus or unanimity. If each person must freely choose the outcomes that bind him or her then those who oppose the decision are not self-governing. They live in an environment imposed on them by others. So only when all agree to a decision are they freely adopting the decision (Wolff 1970: ch. 2). The trouble is that there is rarely agreement on major issues in politics. Indeed, it appears that one of the main reasons for having political decision making procedures is that they can settle matters despite disagreement.

One liberty-based argument that might seem to escape this worry appeals to an irreducibly collective right to self-determination. It is often argued that political communities have a right as a community to organize themselves politically in accordance with their values, principles, or commitments. Some argue that the right to collective self-determination requires democratic institutions that give citizens collective control over their political and legal structure (Cassese 1995). However, many argue democratic institutions are sufficient but not necessary to realize the right to collective self-determination because political communities might exercise this right to implement non-democratic institutions (Altman & Wellman 2009; Stilz 2016).

2.2.2 Democracy as public justification

Another non-instrumental justification of democracy appeals to the ideal of public justification. The idea behind this approach is that laws and policies are legitimate to the extent that they are publicly justified to the citizens of the community. Public justification is justification to each citizen as a result of free and reasoned debate among equals.

Jürgen Habermas's discourse theory of deliberative democracy has been highly influential in the development of this approach. Habermas analyses the form and function of modern legal systems through the lens of his theory of communicative action. This analysis yields the Democratic Principle:

[O]nly those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted. (Habermas 1992 [1996: 110])

Habermas advances a conception of democratic legitimacy according to which law is legitimate only if it results from a free and inclusive democratic process of "opinion and will-formation". What might such a process look like in a complex and differentiated society? Habermas answers by advancing a "two-track" model that understands democratic legitimation in terms of the relationship between institutionalized deliberative bodies (e.g legislatures, agencies, courts) and informal communication in the public sphere, which is "wild", and not centrally coordinated.

One possible objection to this view is that free and inclusive democratic procedures are insufficient to satisfy the demand for deliberative consensus embodied in the Democratic Principle. This demand is unlikely to be satisfied in diverse societies, since deep disagreements about which laws ought to be enacted is likely to remain after the relevant process of opinion and will-formation. The Democratic Principle might thus be thought to embody an overly idealistic conception of democratic legitimacy (Estlund 2008: ch.10). Another possible worry is that the Discourse Principle is not a genuine moral principle, but a principle that embodies the felicity conditions of practical discourse. As such, the Discourse Principle cannot ground a conception of democratic legitimacy that yields robust moral prescriptions (Forst 2016).

Drawing on Habermas and John Rawls, among others, Joshua Cohen (1996 [2003]) develops a conception of democracy in which citizens justify laws and policies on the basis of mutually acceptable reasons. Democracy, properly understood, is the context in which individuals freely engage in a process of reasoned discussion and deliberation on an equal footing. The ideas of freedom and equality provide guidelines for structuring democratic institutions.

The aim of Cohen's conception of democracy as public justification is reasoned consensus among citizens. But a serious problem arises when we ask about what happens when disagreement remains. Two possible replies have been suggested. It has been urged that forms of consensus weaker than full consensus are sufficient for public justification and that the weaker varieties are achievable in many societies. For instance, there may be consensus on the list of reasons that are acceptable publicly but disagreement on the weight of the different reasons. Or there may be agreement on general reasons abstractly understood but disagreement about particular interpretations of those reasons. What would have to be shown here is that such weak consensus is achievable in many societies and that the disagreements that remain are not incompatible with the ideal of public justification.

The basic principle seems to be the principle of reasonableness according to which reasonable persons will only offer principles for the regulation of their society that other reasonable persons can reasonably accept. One only offers principles that others, who restrain themselves in the same way, can accept. Such a principle implies a kind of principle of restraint which requires that reasonable persons avoid proposing laws and policies on the basis of controversial moral or philosophical principles. When individuals offer proposals for the regulation of their society, they ought not to appeal to the whole truth as they see it but only to that part of the whole truth that others can reasonably accept. To put the matter in the way Rawls puts it: political society must be regulated by principles on which there is an overlapping consensus (Rawls 2005: Lecture IV). This is meant to obviate the need for a complete consensus on the principles that regulate society.

However, it is hard to see how this approach avoids the need for a complete consensus, which is highly unlikely to occur in any even moderately diverse society. The reason for this is that it is not clear why it is any less of an imposition on me when I propose legislation or policies for the society that I must restrain myself to considerations that other reasonable people accept than it is an imposition on others when I attempt to pass legislation on the basis of reasons they reasonably reject. For if I do restrain myself in this way, then the society I live in will not live up to the standards that I believe are essential to evaluating the society. I must then live in and support a society that does not accord with my conception of how it ought to be organized. It is not clear why this is any less of a loss of control over society than for those who must live in a society that is partly regulated by principles they do not accept. If one is a problem, then so is the other, and complete consensus is the only solution (Christiano 2009).

2.2.3 Equality

Many democratic theorists have argued that democracy is a way of treating persons as equals when there is good reason to impose some kind of organization on their shared lives but they disagree about how best to do it. Peter Singer argues that when people insist on different ways of arranging matters properly, each person in a sense claims a right to be dictator over their shared lives (Singer 1973: 30-41). But these claims to dictatorship cannot all hold up. Democracy embodies a kind of peaceful and fair compromise among these conflicting claims to rule. Each compromises equally on what he claims as long as the others do, resulting in each having an equal say over decision making. In effect, democratic decision making respects each person's point of view on matters of common concern by giving each an equal say about what to do in cases of disagreement (Singer 1973; Waldron 1999: chap. 5).

What if people disagree on the democratic method or on the particular form democracy is to take? Are we to decide these latter questions by means of a higher order procedure? And if there is disagreement on the higher order procedure, must we also democratically decide that question? The view seems to lead to an infinite regress.

An alternative way of justifying democracy on the basis of equality is to ground democracy in public equality. Public equality is a principle of equality which ensures that people can see that they are being treated as equals. This view arises from three ideas. First, there is the basic egalitarian idea that people's interests ought to be equally advanced, or at least that they ought to have equal opportunities to advance them. Second, human beings generally have highly fallible and biased understandings of their own and other people's interests. Third, persons have fundamental interests in being able to see that they are being treated as equals. Public equality is an egalitarian principle that can be seen to be realized among persons despite the dramatically incomplete forms of knowledge people have. It is not all of justice, but it is essential that the principle be realized in a pluralistic society.

Democracy is a uniquely publicly egalitarian way to make collective decisions when there is substantial disagreement and conflict of interest among persons about how to shape the society they share. Each can see that the only plausible way of overcoming persistent disagreement over how to shape the society they all live in, while still publicly treating all persons as equals in the face of bias and fallibility, is to give each person an equal say in the process of shaping that society. Thus, democracy is necessary to the realization of public equality in a political society. Within the framework determined by this publicly realized equality, persons are permitted to attempt to bring about their more particular ideas about justice and the common good that they think are right.

The idea of public equality also grounds limits to democratic decision making. The thought is that a society cannot democratically decide to abolish the democratic rights of some of its members. Public equality also requires that basic liberal and civil rights be respected as well, by the democratic process and so serves as a limit to democratic decision making (Christiano 2008; Valentini 2013).

A number of worries attend this kind of view. First, it is generally thought that majority rule is required for treating persons as equals in collective decision making. This is because only majority rule is neutral towards alternatives in decision making. Unanimity tends to favor the status quo as do various forms of supermajority rule. But if this is so, the above view raises the twin dangers of majority tyranny and of persistent minorities, i.e., groups of persons who find themselves always losing in majority decisions. Surely these latter phenomena must be incompatible with public equality. Second, the kind of view defended above is susceptible to the worry that political equality is not a coherent ideal in any modern state with a complex division of labor and the need for representation. This last worry will be discussed in more detail in the next sections on democratic citizenship and legislative representation. The first worry will be discussed more in the discussion on the limits to democratic authority.

A related approach grounds democracy in the ideal of relational equality. A concern with relational equality is a concern for

human relationships that are, in certain crucial respects at least, unstructured by differences of rank, power, or status. (Scheffler 2010: 225)

Niko Kolodny argues that democratic institutions are an essential component of relational equality (Kolodny 2014a,b). One line of Kolodny's argument holds that political decisions involve the use of coercive force. Inequalities in the power to use force undermine equal social status at least in part because the power to use force is "the power that usually determines the distribution of other powers" (Kolodny 2014b: 307). Individuals who have superior power to use force on others have a superior social status. An egalitarian distribution of political power is thus essential for realizing social equality. And only democratic institutions provide an egalitarian distribution of political power. We will discuss the relationship between relational equality and democracy further when we discuss the authority of democracy in Part 3 below.

3. The Authority of Democracy

Since democracy is a collective decision process, the question naturally arises about whether there is any duty of citizens to obey democratic decisions when they disagree with it.

There are three main concepts of the legitimate authority of the state. First, a state has legitimate authority to the extent that it is morally justified in coercively imposing its rule on the members. Legitimate authority on this account has no direct implications concerning the obligations or duties that citizens may hold toward that state. It simply says that if the state is morally justified in doing what it does, then it has legitimate authority. Second, a state has legitimate authority to the extent that its directives generate duties in citizens to obey. The duties of the citizens need not be owed to the state but they are real duties to obey. The third is that the state has a right to rule that is correlated with the citizens' duty to it to obey it. This is the strongest notion of authority and it seems to be the core idea behind the legitimacy of the state. The idea is that when citizens disagree about law and policy it is important to be able to answer the question, who has the right to choose?

3.1 Instrumentalist Conceptions of Democratic Authority

Instrumental arguments for democracy give some reason for why one ought to respect the democracy when one disagrees with its decisions. There may be many instrumental considerations that play a role in deciding on the question of whether one ought to obey. And these instrumental considerations are pretty much the same whether one is considering obedience to democracy or some other form of rule.

There is one instrumentalist approach which is quite unique to democracy and that seems to ground a strong conception of democratic authority. That is the epistemic approach inspired by the Condorcet Jury Theorem, which we discussed in section 2.1.1.2 above. There, we discussed a number of difficulties with the application of the Condorcet Jury Theorem to the case of voting in elections and referenda in large-scale democracies, including lack of independence, informational segmentation, and the existence of ideological biases.

One further worry about the Jury Theorem's epistemic conceptions of authority is that it would prove too much since it undermines the common practice of the loyal opposition in democracies. If the background conditions of the Jury Theorem are met, a large-scale democracy majority is practically certain to produce the right decisions. On what basis can citizens in a political minority rationally hold on to their competing views? The members of the minority have a powerful reason for shifting their allegiance to the majority position, since each has very good reason to think that the majority is right. The epistemic conception of authority based on the Jury Theorem thus threatens to be objectionably authoritarian, since it looks like it demands not only obedience of action but obedience of thought as well. Even in scientific communities the fact that a majority of scientists favor a particular view does not make the minority scientists think that they are wrong, though it does perhaps give them pause (Goodin 2003: ch. 7).

Some theories of democratic authority combine instrumental and non-instrumental considerations. David Estlund argues that democratic procedures have legitimate authority because they are better than random and epistemically the best of the political systems that are acceptable to all reasonable citizens (Estlund 2008). They must be better than random because, otherwise, why wouldn't we use a fair random procedure like a lottery or coin flip? Democratic authority must have an epistemic element. And the justification of democratic procedure must be acceptable to all reasonable citizens in order to respect their freedom and equality. Estlund's conception of democratic authority-which he calls "epistemic proceduralism"- thus combines the ideal of public justification with a concern for the tendency of democracies to produce good decisions.

3.2 Intrinsic Conceptions of Democratic Authority

3.2.1 Democracy as collective self-rule

Some theorists argue that there is a special relation between democracy and legitimate authority grounded in the value of collective self-rule. John Locke argues that when a person consents to the creation of a political society, they necessarily consent to the use of majority rule in deciding how the political society is to be organized (Locke 1690: sec. 96). Locke thinks that majority rule is the natural decision rule when there is disagreement. He argues that a society is a kind of collective body that must move in the direction of the greater force. One way to understand this argument is as follows. If we think of each member of society as an equal and if we think that there is likely to be disagreement beyond the question of whether to join society or not, then we must accept majority rule as the appropriate decision rule. This interpretation of the greater force argument assumes that the expression "greater force" is to be understood in terms of the equal worth of each person's interests and rights, so the society must go in the direction in which the greater number of persons wants it to go.

Locke thinks that a people, which is formed by individuals who consent to be members, could choose a monarchy by means of majority rule and so this argument by itself does not give us an argument for democracy. But Locke refers back to this argument when he defends the requirement of representative institutions for deciding when property may be regulated and taxes levied. He argues that a person must consent to the regulation or taxation of his property by the state. But he says that this requirement of consent is satisfied when a majority of the representatives of property holders consent to the regulation and taxation of property (Locke, 1690: sec. 140). This does seem to be moving towards a genuinely democratic conception of legitimate authority.

Rousseau argues that when individuals consent to form a political community, they agree to put themselves under the direction of the "general will" (Rousseau 1762). The general will is not a mere aggregation of individuals' private wills. It is, rather, the will of the political community as a whole. And since the general will can only emerge as the product of a properly organized democratic procedure, individuals consent to put themselves under the direction of a properly organized democratic procedure. On one interpretation of Rousseau, democratic procedures are properly organized only when they (1) define rights that apply equally to all, (2) via a procedure that considers everyone's interests equally, and (3) everyone who is coerced to obey the laws has a voice in that procedure.

There are at least two ways of understanding the idea of the general will. On what might be called the constitutive interpretation, the general will is constituted by the results of a properly organized democratic procedure. That is, the results of a properly organized democratic procedure are the general will in virtue of the fact that they emerge from a properly organized democratic procedure, and not because they reflect some procedure-independent truth about the common good. On what might be called the epistemic interpretation, the results of a properly organized democratic procedure are the way of tracking the procedure-independent truth about the common good. As we discussed in section 3.1, Rousseau is often interpreted as appealing to Condorcet's Jury Theorem to support the epistemic credentials of a properly organized democratic procedure.

3.2.2 Freedom and democratic authority

Anna Stilz develops an account of democratic authority that appeals to the value of "freedom as independence" (Stilz 2009). Freedom as independence is freedom from being subject to the will of another. In order not to be subject to the will of others, individuals need property rights and a protected sphere of autonomy to pursue one's plans. Drawing on Kant, Stilz argues that attempts by particular individuals, no matter how conscientious, to define and secure rights to property and autonomy in a state of nature will be inconsistent with freedom as independence. Such attempts unilaterally impose new obligations on others through acts of private will in the face of competing claims. But even if individuals in a state of nature do agree to a resolution of their competing claims, they are dependent on the will of others to honor this agreement. Stilz thus argues that justice must be administered by an authoritative legal system which can coercively impose one set of objective rules-rules we must respect even when we disagree-to adjudicate our conflicting claims. But if such a system is to be consistent with the freedom of subjects, it cannot be imposed by the private wills of rulers. The solution, Stilz argues, lies in Rousseau's idea of the general will. When subjects obey the general will, they are not obeying the private will of any individual; they are obeying a will that arises from all and applies to all.

One worry with this account is that those who oppose democratically-enacted laws or policies can complain that those laws or policies are imposed against their will. Perhaps they are not subject to the will of a particular individual, but they are subject to the will of a majority. This might be thought to constitute a significant threat to individuals' freedom as independence. Another worry, which Stilz's view arguably inherits from Rousseau, is that the conditions for the general will to emerge are so demanding that the view implies that no state that exists or has existed has legitimate political authority. Stilz's view might thus be thought to entail what A.J. Simmons calls "a posteriori anarchism" (Simmons 2001).

3.2.3 Equality and authority

Another approach to democratic authority asserts that failing to obey the decisions of a democratic assembly amounts to treating one's fellow citizens as inferiors (Christiano 2008: ch. 6). In the face of disagreement about substantive law and policy, democracy realizes a kind of public equality by giving each individual an equal say in determining which laws or policies will be enacted. Citizens who skirt laws made by suitably egalitarian procedures act contrary to the equal right of all citizens to have a say in making laws. Those who refuse to pay taxes or respect property laws on the grounds that they are unjust are affirming a superior right to that of others in determining how the shared aspects of social life ought to be arranged. Thus, they violate the duty to treat others publicly as equals. And there is reason to think this duty must normally have some pre-eminence. Public equality is the most important form of equality and democracy is required by public equality. The other forms of equality in play in substantive disputes about law and policy are ones about which people can have reasonable disagreements (within limits specified by the principle of public equality). Citizens thus have obligations to abide by the democratic process even if their favored conceptions of justice or equality are passed by in the decision making process.

Daniel Viehoff develops an egalitarian conception of democratic authority based on the ideal of relational equality (Viehoff 2014; see section 2.2.3 above for more on relational equality). Viehoff argues that relational equality is threatened by "subjection" in a relationship, which occurs when individuals have significantly different power over how they interact with and relate to one another. According to Viehoff, obeying the outcomes of egalitarian democratic procedures is necessary and sufficient for citizens to achieve coordination on common rules without subjection. It is sufficient because democratic procedures distribute decision-making power equally, which ensures that coordination is not determined by unequal power advantages. It is necessary because parties must set aside the considerations of greater and lesser power to realize non-subjection in their relationship.

Fabienne Peter develops a fairness-based conception of democratic authority that incorporates epistemic considerations (Peter 2008; 2009). Drawing on insights from proceduralist epistemology, Peter's "pure epistemic proceduralism" holds that suitably egalitarian democratic decisions are binding at least in part because they result from a fair procedure of knowledge-production. This account differs from Estlund's epistemic proceduralism (see section 5.1 above) because it does not condition the authority of democratic procedures on their ability to produce decisions that track the procedure-independent truth. Rather, the authority of democratic procedures is grounded in their fairness. And it differs from pure procedural accounts because the relevant notion of fairness is fairness in knowledge-production.

3.3 Limits to the Authority of Democracy

What are the limits to democratic authority? A limit to democratic authority is a principle violation of which defeats democratic authority. When the principle is violated by the democratic assembly, the assembly loses its authority in that instance or the moral weight of the authority is overridden. A number of different views have been offered on this issue. We can distinguish between internal and external limits to democratic authority. An internal limit arises from the constitutive requirements of the democratic process or from the principles that ground democracy. An external limit arises from principles that are independent of the values or requirements that ground democracy.

External limits to democratic authority are rebutting limits, which are principles that weigh against-and may sometimes outweigh the principles that ground democracy. So in a particular case, an individual may see that there are reasons to obey the assembly and some reasons against obeying the assembly and in the case at hand the reasons against obedience outweigh the reasons in favor of obedience. Internal limits to democratic authority are undercutting limits. These limits function not by weighing against the considerations in favor of authority, they undercut the considerations in favor of authority altogether; they simply short circuit the authority. When an undercutting limit is in play, it is not as if the principles which ground the limit outweigh the reasons for obeying the democratic assembly, it is rather that the reasons for obeying the democratic assembly are undermined altogether; they cease to exist or at least they are severely weakened.

3.3.1 Internal limits to democratic authority

Some have argued that the democratic process ought to be limited to decisions that are not incompatible with the proper functioning of the democratic process. So they argue that the democratic process may not legitimately take away the political rights of its citizens in good standing. It may not take away rights that are necessary to the democratic process such as freedom of association or freedom of speech. But these limits do not extend beyond the requirements for proper democratic functioning. They do not protect non political artistic speech or freedom of association in the case of non political activities (Ely 1980: chap. 4).

Another kind of internal limit is a limit that arises from the principles that underpin democracy. And the presence of this limit would seem to be necessary to making sense of the first limit because in order for the first limit to be morally important we need to know why a democracy ought to protect the democratic process.

Locke gives an account of the internal limits of democracy in his idea that there are certain things to which a citizen may not consent (Locke 1690: ch. XI). She may not consent to arbitrary rule or the violation of fundamental rights including democratic and liberal rights. Since consent is the basis of democratic authority for Locke, this account provides an explanation of the idea behind the first internal limit, that democracy may not be suspended by democratic means but it goes beyond that limit to suggest that rights that are not essentially connected with the exercise of the franchise may also not be violated because one may not consent to their violation.

More recently, Ronald Dworkin has defended an account of the limits of democratic authority (Dworkin 1996). He argues that democracy is justified by appeal to a principle of self-government. He argues that self-government cannot be realized unless all citizens are treated as full members of the political community, because, otherwise, they are not able to identify as members of the community. Among the conditions of full membership, he argues, are rights to be treated as equals and rights to have one's moral independence respected. These principles support robust requirements of non-discrimination and of basic liberal rights.

The conception of democratic authority that grounds it in public equality also provides an account of the limits of that authority (Christiano 2008: ch. 6). Since democracy is founded in public equality, it may not violate public equality in any of its decisions. The basic idea is that overt violation of public equality by a democratic assembly undermines the claim that the democratic assembly embodies public equality. Democracy's embodiment of public equality is conditional on its protecting public equality. To the extent that liberal rights are grounded in public equality and the provision of an economic minimum is also so grounded, this suggests that democratic rights and liberal rights and rights to an economic minimum create a limit to democratic authority. This account also provides a deep grounding for the kinds of limits to democratic authority defended in the first internal limit and it goes beyond these to the extent that protection of rights that are not connected with the exercise of the franchise is also necessary to public equality.

3.3.2 The problem of persistent minorities

This account of the authority of democracy also provides some help with a vexing problem of democratic theory. This problem is the difficulty of persistent minorities. There is a persistent minority in a democratic society when that minority always loses in the voting. This is always a possibility in democracies because of the use of majority rule. If the society is divided into two or more highly unified voting blocks in which the members of each group votes in the same ways as all the other members of that group, then the group in the minority will find itself always on the losing end of the votes. This problem has plagued some societies, particularly those with indigenous peoples who live within developed societies. Though this problem is often connected with majority tyranny it is distinct from the problem of majority tyranny because it may be the case that the majority attempts to treat the minority well, in accordance with its conception of good treatment. It is just that the minority never agrees with the majority on what constitutes proper treatment. Being a persistent minority can be highly oppressive even if the majority does not try to act oppressively. This can be understood with the help of the very ideas that underpin democracy. Persons have interests in being able to correct for the cognitive biases of others and to be able to make the world in such a way that it makes sense to them. These interests are set back for a persistent minority since they never get their way.

The conception of democracy as grounded in public equality can shed light on this problem. It can say that the existence of a persistent minority violates public equality (Christiano 2008: chap. 7). In effect, a society in which there is a persistent minority is one in which that minority is being treated publicly as an inferior because it is clear that its fundamental interests are being set back. Hence to the extent that violations of public equality undercut the authority of a democratic assembly, the existence of a persistent minority undermines the authority of the democracy at least with respect to the minority. This suggests that certain institutions ought to be constructed so that the minority is not persistent.

3.3.3 External limits to democratic authority

One natural kind of limit to democratic authority is the external kind of limit. Here the idea is that there are certain considerations that favor democratic decision making and there are certain values that are independent of democracy that may be at issue in democratic decisions. For example, many theories recognize core liberal rights-such as rights to property, bodily integrity, and freedom of thought and expression-as external limits to democratic authority. Locke is often interpreted as arguing that individuals have natural rights to property in themselves and the external world that democratic laws must respect in order to have legitimate authority (Locke 1690).

Some views may assert that there are only external limits to democratic authority. But it is possible to think that there are both internal and external limits. Such an issue may arise in decisions to go to war, for example. In such decisions, one may have a duty to obey the decision of the democratic assembly on the grounds that this is how one treats one's fellow citizens as equals but one may also have a duty to oppose the war on the grounds that the war is an unjust aggression against other people. To the extent that this consideration is sufficiently serious it may outweigh the considerations of equality that underpin democratic authority. Thus one may have an overall duty not to obey in this context. Issues of foreign policy in general seem to give rise to possible external limits to democracy.

4. The Demands of Democratic Participation

In this section, we examine the demands of participation in large-scale democracies. We begin by examining a core challenge to the idea that democratic citizens are capable of governing a large and complex society. We then explore different proposed solutions to the core challenge. Finally, we examine the moral duties of democratic citizens in large-scale democracies in light of the core challenge.

4.1 The Problem of Democratic Participation

A vexing problem of democratic theory has been to determine whether ordinary citizens are up to the task of governing a large and complex society. There are three distinct problems here:

1. 1. First, Plato argued that some people are more intelligent and informed about political matters than others and have a superior moral character, and that those persons ought to rule (The Republic, Book VI)

2. 2. Second, others have argued that a society must have a division of labor. If everyone were engaged in the complex and difficult task of politics, little time or energy would be left for the other essential tasks of a society. Conversely, if we expect most people to engage in other difficult and complex tasks, how can we expect them to have the time and resources sufficient to devote themselves intelligently to politics?

3. 3. Third, since individuals have so little impact on the outcomes of political decision making in large societies, they have little sense of responsibility for the outcomes. Some have argued that it is not rational to vote since the chances that an individual's vote will a decide the outcome of an election (i.e., will determine whether a candidate gets elected or not) are nearly indistinguishable from zero. For example, one widely accepted estimate puts the odds of an individual casting the deciding vote in a United States presidential election at 1 in 100 million. Many estimates put the odds much lower. Worse still, Anthony Downs has argued that almost all of those who do vote have little reason to become informed about how best to vote (Downs 1957: ch.13). On the assumption that citizens reason and behave roughly according to the Downsian model, either the society must in fact be run by a relatively small group of people with minimal input from the rest or it will be very poorly run. As we can see these criticisms are echoes of the sorts of criticisms Plato and Hobbes made.

These observations pose challenges for any robustly egalitarian or deliberative conception of democracy. Without the ability to participate intelligently in politics one cannot use one's votes to advance one's aims nor can one be said to participate in a process of reasoned deliberation among equals. So, either equality of political power implies a kind of self-defeating equal participation of citizens in politics or a reasonable division of labor seems to undermine equality of power. And either substantial participation of citizens in public deliberation entails the relative neglect of other tasks or the proper functioning of the other sectors of the society requires that most people do not participate intelligently in public deliberation.

4.2 Proposed Solutions to the Problem of Democratic Participation

4.2.1 Elite theory of democracy

Some modern theorists of democracy, called elite theorists, have argued against any robustly egalitarian or deliberative forms of democracy in light of the problem of democratic participation. They argue that high levels of citizen participation tend to produce bad legislation designed by demagogues to appeal to poorly informed and overly emotional citizens. They look upon the alleged uninformedness of citizens evidenced in many empirical studies in the 1950s and 1960s as perfectly reasonable and predictable. Indeed they regard the alleged apathy of citizens in modern states as highly desirable social phenomena.

Political leaders are to avoid divisive and emotionally charged issues and make policy and law with little regard for the fickle and diffuse demands made by ordinary citizens. Citizens participate by voting but since they know very little they are not effectively the ruling part of the society. The process of election is usually just a fairly peaceful way of maintaining or changing those who rule (Schumpeter 1942 [1950: 269]).

On Schumpeter's view, however, citizens do have a role to play in avoiding serious disasters. When politicians act in ways that nearly anyone can see is problematic, the citizens can throw the bums out.

So the elite theory of democracy does seem compatible with some of the instrumentalist arguments given above but it is strongly opposed to the intrinsic arguments from liberty, public justification and equality. To be sure, there can be an elite deliberative democracy wherein elites deliberate, perhaps even out of sight of the population at large, on how to run the society.

A view akin to the elite theory but less pessimistic about citizens' political agency and competence argues that a well-functioning representative democracy can function as a kind of "defensible epistocracy" (Landa & Pevnick 2020). This view holds that, under the right conditions, elected officials can be expected to exercise political power more responsibly than citizens in a direct democracy because each official is far more likely to cast the deciding vote in legislative assemblies (the "pivotality effect") and officials have more incentive to exercise power with due regard for the general welfare (the "accountability effect"). Moreover, under the right conditions, representative democracy allows individuals to assess the competence of candidates for office and to select candidates who are best able to help the community pursue its commitments.

4.2.2 Interest group pluralism

One approach that is in part motivated by the problem of democratic citizenship but which attempts to preserve some elements of equality against the elitist criticism is the interest group pluralist account of politics. Robert Dahl's early statement of the view is very powerful.

In a rough sense, the essence of all competitive politics is bribery of the electorate by politicians... The farmer... supports a candidate committed to high price supports, the businessman...supports an advocate of low corporation taxes... the consumer...votes for candidates opposed to a sales tax. (Dahl 1959: 69)

In this conception of the democratic process, each citizen is a member of an interest group with narrowly defined interests that are closely connected to their everyday lives. On these subjects citizens are supposed to be quite well informed and interested in having an influence. Or at least, elites from each of the interest groups that are relatively close in perspective to the ordinary members are the principal agents in the process. On this account, democracy is not rule by the majority but rather rule by coalitions of minorities. Policy and law in a democratic society are decided by means of bargaining among the different groups.

This approach is conceivably compatible with the more egalitarian approach to democracy. This is because it attempts to reconcile equality with collective decision making by limiting the tasks of citizens to ones which they are able to perform reasonably well. It is not particularly compatible with the deliberative public justification approach because it takes the democratic process to be concerned essentially with bargaining among the different interest groups where the preferences are not subject to further debate in the society as a whole.

4.2.3 Neo-liberalism

A third approach inspired by the problem of participation may be called the neo-liberal approach to politics favored by public choice theorists such as James Buchanan & Gordon Tullock (1962). Against elite theories, they contend that elites and their allies will tend to expand the powers of government and bureaucracy for their own interests and that this expansion will occur at the expense of a largely inattentive public. For this reason, they argue for severe restrictions on the powers of elites. They argue against the interest group pluralist theorists that the problem of participation occurs within interest groups more or less as much as among the citizenry at large. Only powerful economic interests are likely to succeed in organizing to influence the government and they will do so largely for their own benefit. Since economic elites will advance their own interests in politics while spreading the costs to others, policies will tend to be more costly (because imposed on everyone in society) than they are beneficial (because they benefit only the elites in the interest group.)

Neo-liberals infer that one ought to transfer many of the current functions of the state to the market and limit the state to the enforcement of basic property rights and liberties. These can be more easily understood and brought under the control of ordinary citizens.

But the neo-liberal account of democracy must answer to two large worries. First, citizens in modern societies have more ambitious conceptions of social justice and the common good than are realizable by the minimal state. The neo-liberal account thus implies a very serious curtailment of democracy of its own. More evidence is needed to support the contention that these aspirations cannot be achieved by the modern state. Second, the neo-liberal approach ignores the problem of large private concentrations of wealth and power that are capable of pushing small states around for their own benefit and imposing their wills on populations without their consent.

Somin (2013) also argues that government be significantly reduced in size so that citizens have a lesser knowledge burden to carry. But he calls for government decentralization so that citizens can vote with their feet in favor of or against competing units of government, in effect creating a kind of market in governments among which citizens can choose.

4.2.4 The self-interest assumption

A considerable amount of the literature in political science and the economic theory of the state are grounded in the assumption that individuals act primarily and perhaps even exclusively in their self-interest narrowly construed. The problem of participation and the accounts of the democratic process described above are in large part dependent on this assumption. When the preferences of voters are not assumed to be self-interested the calculations of the value of participation change. For example, if a person is a motivated utilitarian, the small chance of making a difference is coupled with a huge accumulated return to many people if there is a significant difference between alternatives. It may be worth it in this case to become reasonably well informed (Parfit 1984: 74). Even more weakly altruistic moral preferences could make a big difference to the rationality of becoming informed, for example if one had a preference to comply with perceived civic duty to vote responsibly (see section 4.3.1 for discussion of the duty to vote). Any moral preference can be formulated in consistent utility functions.

Moreover, defenders of deliberative democracy often claim that concerns for the common good and justice are not merely given prior to politics but that they can evolve and improve through the process of discussion and debate in politics (Elster 1986 [2003]; Gutmann & Thompson 2004; Cohen 1989 [2009]). They assert that much debate and discussion in politics would not be intelligible were it not for the fact that citizens are willing to engage in open minded discussion with those who have distinct morally informed points of view. Empirical evidence suggests that individuals are motivated by moral considerations in politics in addition to their interests (Mansbridge 1990).

4.2.5 The Division of Democratic Labor

Public deliberation in any large-scale democracy will occur within a complex and differentiated "deliberative system", a

wide variety of institutions, associations, and sites of contestation accomplish political work. (Mansbridge et. al. 2012)

Moreover, the deliberative system of a complex democracy will be characterized by a division of democratic labor, with different parts of the system making different contributions to the overall system. The question arises: what is the appropriate role for a citizen in this division of labor? Philosophically, we should ask two questions. What ought citizens have knowledge about in order to fulfill their role? What standards ought citizens' beliefs live up to in order to be adequately supported? One promising view is that citizens must think about what ends the society ought to aim at and leave the question of how to achieve those aims to experts (Christiano 1996: ch 5). The rationale for this division of labor is that expertise is not as fundamental to the choice of aims as it is to the development of legislation and policy. Citizens are capable in their everyday lives of understanding and cultivating deep understandings of values and of their interests. And if citizens genuinely do choose the aims and others faithfully pursue the means to achieving those aims, then citizens are in the driver's seat in society and they can play this role as equals.

To be sure, citizens need to know who to vote for and whether those they vote for are genuinely advancing their aims. This would appear to require some basic knowledge of about how best to achieve their political aims. How is this possible without extensive knowledge? In addition, there is empirical evidence that those who are better informed have more influence on representatives (Erikson 2015). So, if this task requires some kind of knowledge to do well, how can this be compatible with equality?

One promising response is that ordinary citizens do not need individually to have a lot of knowledge of social science and particular facts in order to make political decisions based on such knowledge. Recent research in cognitive science indicates the individuals use "cognitive shortcuts" to save on time in acquiring information about the world they live in (Lupia & McCubbins 1998). This use of shortcuts is common and essential throughout economic and political life. In political life, we see part of the rationale for the many intermediate institutions between government and citizens (Downs 1957: 221-229). Citizens save time by making use of institutions such as the press, unions and other interest group associations, political parties, and opinion leaders to get information about politics. They also rely on interactions in the workplace as well as conversations with friends and families. Political parties can connect ordinary citizens in various ways to expertise because each one contains a division of labor within them that mirrors that in the state. Experts in parties have incentives to make their expertise intelligible to other members (Christiano 2012). In addition, under favorable conditions, political parties stimulate the development of citizens' normative perspectives and facilitate a healthy public competition of political justifications based on those perspectives (White & Ypi 2016).

People are dependent on social networks in other ways in a democracy. People receive "free" information (which they do not deliberately seek out) about politics and law in school, through their jobs, in discussion with friends, colleagues and family and incidentally through the media. And this can form a better or worse basis on which to pursue other information. Institutions can make a difference to the stream of free information individuals receive. Education can be distributed in a more or less egalitarian way. The circumstances of work can provide more or less free information about politics and law. People who have jobs with a significant amount of power such as lawyers, business persons, government officials will be beneficiaries of very high quality free information. They need to know about law and politics to do their jobs properly. Those who hold low skilled and non-unionized jobs will receive much less free information about politics at work. To the extent that we can alter the economic division of labor by for example giving more place to unions or having greater worker participation, we might be able to reduce inequalities of information among citizens.

4.3 The Moral Duties of Democratic Citizens

What are the moral duties of democratic citizens in complex democracies? In this section, we discuss three important democratic duties: (1) the duty to vote, (2) the duty to promote justice through principled disobedience of the law, and (3) duties to accommodate disagreement through compromise and consensus.

4.3.1 The Duty to Vote

It is often thought that democratic citizens have a moral duty to vote in elections. But this is not obvious. Individual votes are a causally insignificant contribution to the democratic process. In large-scale democracies, the chance that any particular citizen's vote will decide the outcome of an election is minuscule. What moral reason do democratic citizens have to participate in politics even though they're almost certain not to make the difference to who gets elected? Why shouldn't they seek to promote the good or justice in other ways?

Parfit develops an act-utilitarian answer to this question (Parfit 1984: 73-75). Act-utilitarians hold that morally right actions maximize the total expected sum of the utilities of all persons in the society. Parfit argues that voting might nonetheless maximize expected utility if one candidate is significantly superior to the other(s). If we add the benefits to each member of the society of having the superior candidate win, we get a very large difference in value. So when we multiply that value by the probability of casting the deciding vote, which is often thought to be about 1/100,000,000 in a United States presidential election, we might still get a reasonably high expected value. When we subtract the cost to the voter and others of voting, which is often quite low, from this number, we may still have a good reason to vote.

One worry with Parfit's view is that it faces a version of what Jason Brennan calls "the particularity problem" (Brennan 2011). This is the problem of explaining why citizens ought to promote value through political participation as opposed to through non-political acts. Voting is just one way of promoting overall utility; we need to know the expected utility of the different acts they might perform instead. Even if the argument above is correct, it might be the case that many individuals maximize expected utility by not voting and doing something even more beneficial with their time.

Alex Guerrero argues that citizens have moral reasons to vote because candidates who win by a larger proportion of votes can claim a greater "normative mandate" to govern (Guerrero 2010). Still each individual vote makes only a tiny contribution to the proportion of votes a candidate receives. So, we might doubt the strength of the reason to vote that Guerrero identifies.

Some theorists argue that individuals have a moral duty to vote in order to absolve themselves of complicity in state injustices (Beerbohm 2012; Zakaras 2018). All states commit injustices-they make and enforce unjust laws, wage unjust wars, and much else. And citizens of large-scale democracies have a kind of standing responsibility, by paying taxes and obeying laws, for their state's injustices of which they must actively absolve themselves The complicity account argues that citizens avoid shared responsibility for their state's injustices if they oppose those injustices through voting and of public advocacy (Beerbohm 2012).

One worry is that it is unclear why voting and publicly advocating against injustice should be thought to absolve responsibility that is established by paying taxes and obeying laws. Another worry is that one's concern to oppose injustice should derive from a more direct concern for the wrongs suffered by victims of injustice rather than a concern with keeping one's hands clean.

One sort of account that avoids this worry grounds the moral duty to vote in the importance of doing one's fair share of the demands of political justice consistent with public equality. The demands of creating and sustaining just institutions distribute fairly among all citizens (Maskivker 2019). If one fails to do one's fair share of these demands, then one fails to show due regard for the eventual victims of injustice. Furthermore, voting provides citizens with a mechanism for doing their fair shares of the demands of making their institutions just in a way that is consistent with respecting the public equality of fellow citizens. By showing up and casting a vote, citizens can contribute to the collective achievement of justice while maintaining equal decision-making power with fellow citizens.

4.3.2 Principled Disobedience of the Law

Civil disobedience has long been recognized as a central mechanism through which democratic citizens may legitimately promote political justice in their society. According to the standard view, civil disobedience is a public, non-violent and conscientious breach of law that aims to change laws or government policies. People who engage in civil disobedience are willing to accept the legal consequences of their actions in order to show fidelity to the law (Bedau 1961; Rawls 1971: ch. 55). The standard definition of civil disobedience has been subjected to challenge. For example, some argue that the private acts in which the disobedient seeks to evade legal consequences can count as instances of civil disobedience (Raz 1979; Brownlee 2004, 2007, 2012).

Perhaps the most common way of justifying civil disobedience argues that the same considerations that ground the pro tanto duty to obey the law sometimes make it appropriate to engage in civil disobedience of the law (see, e.g., Rawls 1971: ch. 57; Sabl 2001; Markovits 2005; Smith 2011). For example, Rawls argues that while citizens of a "nearly just" society have a pro tanto duty to obey its laws in virtue of it being nearly just, civil disobedience can be justified as a way of making the relevant society more just (Rawls 1971: ch. 57). Similarly, Daniel Markovits argues that members of a society with suitably egalitarian and inclusive democratic procedures have a general duty to obey its laws because they are produced by procedures that are suitably egalitarian and inclusive, but that civil disobedience can be justified as a way of making the relevant procedures more egalitarian or inclusive (Markovits 2005).

It is easy to see why this constitutes an attractive way of justifying civil disobedience, since it justifies it by appeal to the same values that ground the pro tanto duty to obey the law. On the other hand, as Simmons notes, if there is no general duty to obey the law, there would seem to be no presumption in favor of obedience and thus no special need for a justification of civil disobedience; obedience and disobedience would stand equally in need of justification (Simmons 2007: ch 4).

Advocates of the standard approach generally assume that only civil disobedience can be justified in this way. However, some argue civil disobedience does not enjoy a special normative presumption over uncivil disobedience. The core idea that insofar as the values that ground a pro tanto duty to obey the law-for example, justice or democratic equality-are sometimes best served by civil disobedience of the law, they are sometimes best served by covert, evasive, anonymous, or even violent disobedience of the law (Delmas 2018; Lai 2019; Pasternak 2018).

4.3.3 Accommodate Disagreement Through Compromise and Consensus

Disagreement about what laws, policies, or principles ought to be implemented is a persistent feature of democratic societies. It is often argued that citizens and officials have duties to moderate their political activity in order to accommodate the competing views of fellow citizens or officials. Two duties of accommodation are widely discussed in the literature: duties of compromise and duties of public justification.

A compromise can be understood as an agreement between parties to advance laws or policies that all regard as suboptimal because they disagree about which laws or policies are optimal (May 2005). While it is widely accepted that there are sometimes compelling instrumental reasons to compromise, whether there are intrinsic moral reasons to compromise is more controversial. Some defend intrinsic reasons to compromise based on democratic values like inclusion, mutual respect, and reciprocity (Gutmann and Thompson 2014; Wendt 2016; Weinstock 2013). However, Simon May argues that such arguments fail and that all reasons to compromise are pragmatic (May 2005).

Advocates of the public justification approach to democracy (see section 2.2.2) often argue that democratic citizens and officials have individual moral duties of public justification. John Rawls argues for a "duty of civility" that requires citizens and officials to be prepared to give mutually acceptable justifications for important laws when voting and engaged in public advocacy. Given the inevitability of disagreement about comprehensive moral and philosophical truth in free democracies, the duty of civility requires citizens to appeal to a reasonable "political" conception of justice that can be the object of an "overlapping consensus" between different comprehensive doctrines. While different theorists motivate duties of public justification in different ways, many appeal to the need for exercises of coercive political authority to respect citizens' freedom and equality.

5. Democratic Representation

Representation is an essential part of the division of labor of large-scale democracies. In this section, we examine two moral questions concerning representation. First, what sort of representative system is best? Second, by what moral principles are representatives bound?

5.1 What Sort of Representative System is Best?

A number of debates have centered on the question of what kinds of representative systems are best for a democratic society. What choice we make here will depend heavily on our underlying moral justification of democracy, our conception of citizenship as well as on our empirical understanding of political institutions and how they function. The most basic types of formal political representation available are single member district representation, proportional representation and group representation. In addition, many societies have opted for multicameral legislative institutions. In some cases, combinations of the above forms have been tried.

Single member district representation returns single representatives of geographically defined areas containing roughly equal populations to the legislature and is prominent in the United States, the United Kingdom, and India, among other places. The most common form of proportional representation is party list proportional representation. In a simple form of such a scheme, a number of parties compete for election to a legislature that is not divided into geographical districts. Parties acquire seats in the legislature as a proportion of the total number of votes they receive in the voting population as a whole. Group representation occurs when the society is divided into non-geographically defined groups such as ethnic or linguistic groups or even functional groups such as workers, farmers and capitalists and returns representatives to a legislature from each of them.

Many have argued in favor of single member district legislation on the grounds that it has appeared to them to lead to more stable government than other forms of representation. The thought is that proportional representation tends to fragment the citizenry into opposing homogeneous camps that rigidly adhere to their party lines and that are continually vying for control over the government. Since there are many parties and they are unwilling to compromise with each other, governments formed from coalitions of parties tend to fall apart rather quickly. The post war experience of governments in Italy appears to confirm this hypothesis. Single member district representation, in contrast, is said to enhance the stability of governments by virtue of its favoring a two party system of government. Each election cycle then determines which party is to stay in power for some length of time.

Charles Beitz argues that single member district representation encourages moderation in party programs offered for citizens to consider (Beitz 1989: ch. 7). This results from the tendency of this kind of representation towards two party systems. In a two party system with majority rule, it is argued, each party must appeal to the median voter in the political spectrum. Hence, they must moderate their programs to appeal to the median voter. Furthermore, they encourage compromise among groups since they must try to appeal to a lot of other groups in order to become part of one of the two leading parties. These tendencies encourage moderation and compromise in citizens to the extent that political parties, and interest groups, hold these qualities up as necessary to functioning well in a democracy.

In criticism, advocates of proportional and group representation have argued that single member district representation tends to muffle the voices and ignore the interests of minority groups in the society (Mill 1861; Christiano 1996). Minority interests and views tend to be articulated in background negotiations and in ways that muffle their distinctiveness. Furthermore, representatives of minority interests and views often have a difficult time getting elected at all in single member district systems so it has been charged that minority views and interests are often systematically underrepresented. Sometimes these problems are dealt with by redrawing the boundaries of districts in a way that ensures greater minority representation. The efforts are invariably quite controversial since there is considerable disagreement about the criteria for apportionment.

In proportional representation, by contrast, representatives of different groups are seated in the legislature in proportion to citizens' choices. Minorities need not make their demands conform to the basic dichotomy of views and interests that characterize single member district systems so their views are more articulated and distinctive as well as better represented.

Advocates of group representation, like Iris Marion Young, have argued that some historically disenfranchised groups may still not do very well under proportional representation (Young 1990: ch. 6). They may not be able to organize and articulate their views as easily as other groups. Also, minority groups can still be systematically defeated in the legislature and their interests may be consistently set back even if they do have some representation. For these groups, some have argued that the only way to protect their interests is legally to ensure that they have adequate and even disproportionate representation.

One worry about group representation is that it tends to freeze some aspects of the agenda that might be better left to the choice of citizens. For instance, consider a population that is divided into linguistic groups for a long time. And suppose that only some citizens continue to think of linguistic conflict as important. In the circumstances a group representation scheme may tend to be biased in an arbitrary way that favors the views or interests of those who do think of linguistic conflict as important.

5.2 The Ethics of Representation

What moral norms apply to representatives carrying out their official duties? We can get a better handle on possible answers by introducing Hannah Pitkin's famous distinction between trustees and delegates (Pitkin 1967). Representatives who act as trustees rely on their own independent judgments in carrying out their duties. Norms of trusteeship are supported in recognition that, given a natural division of democratic labor, officials are in a much better position to make well-reasoned and well-informed political decisions than ordinary citizens.

Representatives who act as delegates defer to the judgments of their citizens. These norms might be thought to reflect the value of democratic accountability. Because the people authorize representatives to govern, it is natural to think that representatives are accountable to the people to enact their judgments. If representatives are not accountable in this way, citizens lose democratic control over their representatives' actions.

Which norms should win out when they conflict? Pitkin argues that the answer varies by context. This seems plausible. For example, if we take the view that citizens primarily have the role of determining the aims of the society, we might think that representatives ought to be delegates with regard to the aims, but trustees with regard to the ways of realizing the aims (Christiano 1996). See Suzanne Dovi's discussion of representation for a deeper and more nuanced discussion of these issues.

6. Social Choice and Democracy

Kenneth Arrow's impossibility theorem is thought by some to provide a major set of difficulties for democratic theory (Arrow 1951). William Riker, Russell Hardin, and others have thought that the impossibility theorem shows that there are deep problems with democratic ideals (Riker 1982; Hardin 1999). Neither of these thinkers are opposed to democracy itself, they both think that there are good instrumental reasons for having democracy.

The basic results of social choice theory are laid out in detail elsewhere in the encyclopedia (List 2013). Here we will simply articulate the basic result and an illustration. The question of Arrowian social choice theory is: how do we determine a social preference for a society overall on the basis of the set of the individual preferences of the members? Arrow shows that a social choice function that satisfies a number of plausible constraints cannot be defined when there are three or more alternatives to be chosen by the group. He lays out a number of conditions to be imposed on a social choice function. Unlimited domain: The social choice function must be able to give us a social preference no matter what the preferences of the individuals over alternatives are. Non dictatorship: the social choice function must not select the preference of one particular member regardless of others' preferences. Transitivity and completeness: The individual preferences orderings must be transitive and complete orderings and the social preference derived from them must be transitive and complete. Independence of irrelevant alternatives: the social preference between two alternatives must be the result only of the individual orderings between those two alternatives. Pareto condition: if all the members prefer an alternative x over y, then x must be ranked above y in the social preference. The theorem says that no social choice function over more than two alternatives can satisfy all of these conditions.

A useful illustration of this idea involves an extension of majority rule to cases of more than two alternatives. The Condorcet rule says that an alternative x wins when, for every other alternative, a majority prefers x over that alternative. For example, suppose we have three persons A, B and C and three alternatives x, y and z. A prefers x over y, y over z; B prefers y over z and z over x; C prefers x over z and z over y. In this case, x is the Condorcet winner since it beats y, and it beats z. The problem with this plausible sounding rule is the case of a majority cycle. Suppose you have three persons A, B and C, and three alternatives, x, y and z. In the case in which A prefers x over y and y over z, while B prefers y over z and z over x, and C prefers z over x and x over y, the Condorcet rule will yield a social preference of x over y, y over z and z over x. One can see here that the Condorcet rule satisfies all the conditions except transitivity of social preference. One way to avoid intransitivity is to restrict the domain of preferences from which the social preference arises. Another is to introduce cardinal information that compares the how much people prefer alternatives (violating independence). Another might be to make one person a dictator. So, this case nicely illustrates that one cannot satisfy all of the constraints simultaneously.

Riker argues that the theorem shows that the idea that the popular will can be the governing element in a society is false. If an existence condition for a popular will is a restricted set of preferences the question naturally arises as to whether such a condition is always or normally met in a moderately complex society. We might wonder whether a highly pluralistic society with a very complex division of labor is likely to satisfy the restricted preference set condition necessary to avoid cycles or other pathologies of social choice. Some have argued that we have empirical evidence to the effect that modern societies do normally satisfy such conditions (Mackie 2003). Others have argued that this seems unlikely (Riker 1982; Ingham 2019). This is not merely a defense of unlimited domain. It is a defense of the thesis that normally the collections of preferences in modern societies are not likely to have the properties that enable them to avoid cycles.

The fairness critique from social choice theory is based on the idea that when a voting process meets requirements of fairness, the fairness of the process and the preferences may not generate determinate outcomes. If cycles are pervasive, the outcomes of democratic processes may be determined by clever strategies and not by the fairness of the procedures (Riker 1982). Three remarks are in order here. First, it is compatible with the process being completely fair that the outcomes of the process are indeterminate. After all, coin flips are fair. Second, there is some question as to how prominent the cycles are. Third, one might think that if the conditions which enable opposing sides to strategize effectively are themselves roughly equal, then the concerns for fairness are fully met. If resources for persuasion and organization are distributed in an egalitarian way, perhaps the fairness account is vindicated after all. This point can be made more compelling when we consider Sean Ingham's account of political equality. He includes intensity of preference in his account of fairness. This is a departure from the Arrowian approach, but it is in many ways a realistic one. The idea is that majorities have equal control over policy areas when they are able to get what they want with the same amount of intensity of preferences. And equality holds generally when all groups of the same size have the same control (Ingham 2019). There remains an extreme case in which all majorities have equal intensity of preference and are caught in a majority cycle. But the chances of this happening are very slim, even if the chances of majority cycles more generally are not as small. Even if there are a lot of majority cycles, if the issues are resolved in such a way that those majorities that have most at stake in the conflict are the ones that get their way, then we can have fairness in a quite robust sense even while having pervasive majority cycles.

7. The Boundary Problem: Constituting the Demos

If democratic societies allow members to participate as equals in collective decision making, a natural question arises: who has the right to participate in making collective decisions? We can ask this question within a particular jurisdiction (ought all adults have the right to participation? Ought children have the right to participation? Ought all residents have such rights?). But we can also ask what the extent of the jurisdiction ought to be. How many of the people in the world ought to be included in the collective decision-making? An easy, though slightly misleading, way of asking this question is, what ought the physical boundaries of a particular institution of collective decision-making be? We see partially democratic societies within the confines of the modern nation-state. But we might ask, why should we restrict the set of persons who participate in making decisions of the modern state just to those who happen to be the physical inhabitants of those states? Surely there are many other persons affected by decisions made by democratic states aside from those persons. For example, activities in one society A can pollute another society B. Why shouldn't the members of B have a say in the decisions regarding the polluting activities in A? And there can be many other effects that activities in A can have on B.

Some have suggested that the boundaries of a state ought to be determined through a principle of national self-determination. We identify a nation as an ongoing group of persons who share certain cultural, historical and political norms and who identify with each other and with a piece of land. Then we determine the boundaries of the territory by appeal to the size of the group of people and the land they cherish (Miller 1995; Song 2012). This is an appealing idea in many ways: shared nationality breeds a willingness to share the sacrifices that arise from collective decision making; it generates a sense of at-homeness for people. But it is hard to use as a general principle for dividing land among persons when one of the central facts for many societies is that a diversity of nations, ethnic groups and cultures co-mingle on the very same land.

Is there a democratic solution to the boundary problem? A number of ideas have been suggested. The first idea is that the people ought to decide what the boundaries are. But this suggestion, while it may be a pragmatic resolution to the problem, seems to beg the question about who the members are and who are not (Whelan 1983).

A second theoretical solution that has some democratic credentials is to invoke the principle that all who are subjected to decision making, in the sense of who are coerced or have duties imposed upon them, ought to have a say in the decision making (Abizadeh 2008). This principle is plausible enough, but it doesn't get at enough cases. The pollution case above is not a case of subjection.

A third proposed theoretical solution is the all-affected principle. One formulation is "all affected persons ought to have a say in the decisions that affect them". This does suggest that when the activities in one state affect those of another state, the people of the other state ought to have a say in those activities. Some have thought that this principle tends to lead to a kind of politically cosmopolitan principle in support of world government (Goodin 2007).

But the all-affected principle is conceptually quite uncertain and morally deeply problematic, and it provides very little, if anything, in the way of a solution to the boundary problem.

First, "having a say" is not clear. Does it require having a vote in collective decision-making? Or is it also satisfied by a person's being able to modify another's action by negotiating with them, as we see when there is bargaining over an externality? This latter version would undermine the idea that the all-affected principle has direct implications for the boundary problem. When the United States permits activities that produce acid rain in Canada, Canada can negotiate with the United States to lessen the production of acid rain and/or to compensate Canada for the harm. As long as there is a fair and effective system of negotiation, this would seem to satisfy the all-affected principle without giving Canadians a vote in American politics or Americans a vote in Canadian politics.

Second, it is not clear what "being affected" means. One, does a person being affected just mean that there is a change in the person's situation or must the effect involve the setting back of one's preferences, or interests, or legitimate interests, or exercise of one's capacities or one's good? Two, are one's interests affected by a decision only when they are advanced or set back relative to some baseline (either the present state of affairs or some morally defined baseline like what you have promised me), or am I affected by decisions that could be to my advantage or disadvantage but end up making no difference? For example, if I am drowning in a pool and you are deciding whether to save me or go buy yourself a candy bar, am I affected by your buying the candy bar? If I am not affected when no change occurs, then who is affected by a decision often depends on who participates in the decision and we have no solution to the problem of inclusion. If I am affected, then the principle has some quite extraordinary implications. Now it turns out that impoverished persons in South Asia are affected by my buying a candy bar, since I could have sent the money to them (Goodin 2007).

The all-affected principle is a merely suggestive and rhetorically effective phrase. It is a conversation starter and a list of topics to be discussed, not a genuine principle. For example, if I must include everyone possibly affected by my decision for every decision I make, I will not be able to make many decisions and my decision making will no longer enable me to give a shape to my own life and my relations with others. My life becomes fragmented and lacks integrity (Williams 1973). An analog of this problem would arise for political societies, presumably. Each society would have to include a variety of different persons in each decision. It is hard to see how any society could take on any particular character if this is the case.

A more plausible principle that encompasses some of the suggestions of the all-affected principle is that a framework of institutions should be set up so that people have power to advance and protect their legitimate interests in life.

But if we understand the principle in this way, it is not clear that it helps us much with the boundary problem. First of all, there are different ways in which people can be said to possess power over their lives. One kind of power is the power to participate as an equal in a collective decision-making process. Another kind is to be able to advance one's interests in a decentralized process like a market or a system of agreement making like international law. Recalling our pollution problem above, we could give the state of which they are members power to negotiate with the polluting state terms that are mutually agreeable. Only the power to participate as an equal in collective decision-making involves the boundaries of collective decision-making.

Another solution to the boundary problem is a conservative one. The basic idea is to keep the boundaries of states roughly as they are except if there is a pressing need to change them. Trying to alter the boundaries of political societies is a recipe for serious conflict because there is no institution that has the legitimacy or power actually to resolve problems at an international level and there is likely to be a lot of disagreement on how to do it. States as we know them, are by far the most powerful political entities in the international system. They have developed more effective practices of accountability of power than any other entity in the system. They have created unified societies with highly interdependent populations. Finally, states and the individuals in them can be made accountable to some degree to other individuals and states through the process of negotiation and international law making. The origin of these boundaries may be arbitrary, but it is not, for all that, irrelevant. To be sure, there are clear cases where borders can be changed. One source of pressing need is serious injustice within a country. Another might be the existence of permanent minorities that are sectionally defined. Here, we ask only how to revise boundaries and the basis of such revision is that it is a remedy for serious injustice (Buchanan 1991).

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The term "democracy", as we will use it in this entry, refers very generally to a method of collective decision making characterized by a kind of equality among the participants at an essential stage of the decision-making process. Four aspects of this definition should be noted.

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Online book

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Robert Dahl died on February 5, 2014 at the age of ninety-eight. He might well have been the most important political scientist of the last century, and he was certainly one of its preeminent social scientists. In many ways, Dahl created the field of modern political science, understood as the systematic use of evidence to evaluate rigorously stated theoretical claims. Generations of Dahl's successors have developed both theories and empirical methods since he produced his innovative works in the 1950s and 1960s. Few would deny that they stood on Dahl's shoulders.

One illuminating window into Dahl's scholarship is to view him as having been engaged in a lifelong dialogue with James Madison. Dahl had great respect for the founding generation. Madison's contention in Federalist Number 10 that multiple factions could make democracy viable on a large scale might be the earliest statement of the logic of crosscutting cleavages on which Dahl would build his pluralist theory of democracy.

But the founders' institutional theories were another matter. In A Preface to Democratic Theory, published in 1956, Dahl developed a trenchant critique of the separation of powers in general, of judicial review in particular, and of the system of representation that the founders devised as part of what turned out to be a vain attempt to head off civil war over slavery.

Dahl studied democracies all over the world, but usually with the United States in mind as a comparative benchmark. Although he disagreed strongly with Madison on many points, he thought that the bulk of the founders' mistakes derived from the challenge of creating a large-scale democracy for the first time-without our advantages of accumulated evidence and hindsight.

Dahl was gratified to discover that Madison's post- Federalist Papers political experience led him to abandon his antipathy for political parties and, eventually, his hostility to majority rule as well. In Dahl's afterword to the fiftieth anniversary edition of A Preface to Democratic Theory published in 2006, he noted with appreciation that in 1833, three years before his death, Madison had declared that critics of majority rule "must either join the avowed disciples of aristocracy, oligarchy or monarchy, or look for a Utopia exhibiting a perfect homogeneousness of interests, opinions and feelings nowhere yet found in civilized communities."

On Democracy was published in 1998. Dahl conceived of it as a guide to the democratic systems of the contemporary world and a sketch of the main challenges that they faced; a kind of fin de siècle stocktaking. The twentieth century had been one of major triumphs and shocking failures of democracy. The franchise had finally become universal. Exclusions based on race and gender were abolished in the older democracies, and architects of new democracies took universal adult suffrage for granted. But democracy suffered major setbacks in the middle third of the century with the rise and catastrophic consequences of fascism and communism.

On balance, Dahl concluded that things looked good for democracy at the turn of the century. Whether measured in absolute numbers or as a proportion of the world's population, more people lived in democracies than ever before. And although non-democratic regimes still outnumbered democracies (a ratio that would soon reverse itself), Dahl identified an unprecedented sixty-five democracies.

To be sure, Dahl was no teleologist. He noted that despite democracy's ancient lineage, it had vanished from the face of the earth for centuries. In principle that could happen again. But it seemed to him unlikely, given democracy's near-universal status as the font of political legitimacy in the contemporary world-reflected in the fact that most authoritarian leaders claim popular authorization and most authoritarian systems are portrayed as democracies or as peoples' republics of some sort. It is not surprising, therefore, that On Democracy spends little space on the disappearance of democracy. Rather, Dahl identifies the three future challenges as whether more non-democracies will democratize, whether new democracies will become consolidated, and whether the older ones will "perfect and deepen their democracy."

Dahl wrote two books after On Democracy: How Democratic is the American Constitution?, published in 2002, and On Political Equality four years later. In the first he expanded his long-standing critique of American institutions, arguing that they should be reformed in more democratic directions. In particular, he stressed that the Supreme Court's role should be limited to protecting "the fundamental rights that are necessary to the existence of a democratic political system." The more the Court strays from this democracy-reinforcing mandate, he argued, the more it becomes an unelected legislature that enacts laws and policies "in the guise of interpreting the Constitution-or, even more questionable, divining the obscure and often unknowable intentions of the Framers."

On Political Equality offered a more somber assessment of the advanced democracies, and especially the United States, in light of the dramatic increases in inequality that had been in train for the better part of three decades by the time he wrote. In place of asking questions about "deepening" democracy by extending it to other spheres of life, notably the economy (which he had first proposed in A Preface to Economic Democracy in 1985), Dahl was now worried that inequality might contribute to democratic backsliding.

Just as Madison had come to fear that the monied interests Alexander Hamilton championed in the early 1790s would destroy America's nascent democratic order, Dahl felt pressed to ask whether inequality might compromise democracy fundamentally. These concerns were well founded. Ironically, in view of Dahl's long-standing concerns about the Supreme Court, we have seen that, rather than protect the fundamental rights needed for the operation of democratic politics, the Court has aided and abetted democracy's subversion by monied interests.
Adapted from the preface to On Democracy: Second Edition Further Reading: by Robert A. Dahl, with a new preface and two chapters by Ian Shapiro. Copyright 2015 by Ian Shapiro.
The late Robert A. Dahl was Sterling Professor Emeritus of Political Science at Yale University. Ian Shapiro is Sterling Professor of Political Science at Yale University, where he also serves as Henry R. Luce Director of the MacMillan Center for International and Area Studies.

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Robert Dahl and the Future of Democracy, A Year and a Half After His Passing

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Robert Dahl died on February 5, 2014 at the age of ninety-eight. He might well have been the most important political scientist of the last century, and he was certainly one of its preeminent social scientists.

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Voting Rights case... addresses citizenship question but about women's suffrage

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Trial Script: Trial for the Right to Vote
The Virginia Minor case is one of two nationally significant cases (the other being the Dred Scott case) heard in St. Louis' Old Courthouse which were eventually appealed to the United States Supreme Court. Virginia Minor was an officer in the National Woman Suffrage Association, which during the 1872 presidential election decided to challenge voting restrictions in the United States which excluded women. The nation-wide movement of 1872 originated with Virginia and her husband Francis Minor. Virginia Minor's attempt to register to vote was refused by the ward registrar in St. Louis, and the Minors sued him in the St. Louis Circuit court.

Virginia Louisa Minor was born March 27, 1824 in Goochland County, Virginia. She was related to the Meriwether and the Lewis families. She studied for a short time at the academy for young ladies in Charlottesville, Virginia, and was schooled at home. She was known for her charm and beauty, and was described as being "sweet and retiring-looking," with "ladylike manners" and an "old-fashioned" charm. On August 31, 1843, she married her cousin, Francis Minor, a lawyer and graduate of Princeton and the University of Virginia. They lived in Mississippi for a time, close to family members who had emigrated there, and then moved to St. Louis where an even larger family group had settled. Just prior to the Civil War they bought a farm in St. Louis, in what is now the Central West End, near Enright, Bayard, Euclid and Fountain Avenues, east of Kingshighway. During the Civil War Mrs. Minor assisted in hospitals in the St. Louis area through the Western Sanitary Commission, and provided produce from her farm to Benton Barracks, three miles north of their home, to improve the diet of the soldiers.

The Minors had only one child, a son born in 1852; he died in an accident in 1866. That same year Virginia Minor launched the woman suffrage movement in Missouri, and in 1867 took an active role in founding the Woman Suffrage Association of Missouri, which was the first organization in the world to make its exclusive aim that of enfranchising women. She was elected the first president of this organization at their premiere meeting, held on May 8, 1867 in the Director's Room of the Mercantile Library in St. Louis. This meeting predated the National Woman's Suffrage Association, founded by Susan B. Anthony and Elizabeth Cady Stanton, and the American Women's Suffrage Association founded by Lucy Stone in 1869.

At the woman suffrage convention held in St. Louis in 1869, Virginia Minor made an impassioned speech urging women to no longer submit to their inferior condition. Francis Minor drafted a set of resolutions which asserted the right of woman suffrage under the U.S. Constitution, based on the wording of the 14th Amendment. When printed in pamphlet form, this message was sent around the country. Minor stated that under the terms of the 14th Amendment, ratified July 9, 1868, women were citizens of the United States and entitled to all the benefits and immunities of citizenship. Thus, women already, by law, had the right to vote. All they had to do was go out and exercise this right.

The Minors used the first section of the 14th Amendment to make their case. This states that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."

The Minors belonged to the National Women's Suffrage Association (NWSA), which opposed ratification of the 15th Amendment, which stated that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." The NWSA opposed the amendment on the grounds that it ensured the right of African-American men to vote but did not give the vote to women. The NWSA broke with a rival faction, headed by Lucy Stone and called the American Women's Suffrage Association, over this issue. Stone's group supported the 15th Amendment on the grounds that they believed that change would come about incrementally. Virginia Minor resigned from the Missouri Association in 1871, for in that year they affiliated with Stone's AWSA. [The two organizations reunited in 1890, in what was called the National American Woman's Suffrage Association].

In 1872 it was not a new thing for a woman to vote in an election, but that was the year targeted by the NWSA for a nationwide attempt to force the issue of woman suffrage and gain headlines. For instance, several women tried to vote in the 1870 and 1871 elections in various parts of the country. Wyoming Territory granted universal suffrage in 1869, and Utah followed suit in 1870. In 1871, a Michigan woman voted successfully because voting officials did not question her rights, and she continued to vote for several years thereafter. But 1872 would be the election which provoked the test case.

On October 15, 1872, Virginia Minor tried to register to vote in the upcoming election, but was refused by St. Louis' sixth district registrar, Reese Happersett. Happersett refused to register Minor because she was female, thus provoking a civil suit brought by Virginia and her lawyer husband, Francis Minor. Minor's action was part of a nation-wide pattern of civil disobedience, in which hundreds of women across the country attempted to vote. Susan B. Anthony led a small delegation of women to the polls in Rochester, New York, and was successful in casting her vote for Ulysses S. Grant. Three weeks later, however, on Thanksgiving Day, Anthony was arrested on the charge of voting fraud. Anthony was a celebrity who was used by the judicial system as an example and a warning to all women in the United States. When Anthony's case came to trial early in 1873, the judge had written his opinion before the trial started, and directed the jury to find a guilty verdict. Anthony was ordered to pay a fine of $100, which she refused to do.

Virginia Minor's case was different in that she was not prosecuted criminally for trying to vote, but brought suit (through her husband; married women could not sue in Missouri courts until after the passage of the Married Women's Act of 1889) in a civil action against the registrar because he would not allow her to register to vote. Minor contended that women were U.S. citizens under the 14th amendment to the Constitution, which "nowhere gives [states] the power to prevent" a citizen from voting.

The Minor's petition was presented to the court as a written statement on January 2, 1873. Reese Happersett's lawyer, Smith P. Galt, objected to the Minor's version of the events and filed a demurrer and appealed to have the case heard during the General Term of the Circuit Court. This hearing took place on February 3, 1873 in Circuit Court #5, which is today the park library, Old Courthouse room 212. By agreement, both sides submitted their arguments in writing. There was no trial or jury in the Virginia Minor case. The Minors were represented by John B. Henderson, John M. Krum and Francis Minor. Henderson was the author of the 13th Amendment and an agitator for the 15th Amendment to the U.S. Constitution. The Minors quickly lost their case in the lower court, but appealed to the Missouri Supreme Court.

Francis Minor was the clerk of the Missouri Supreme Court, but was removed or voluntarily stepped down on May 1, 1873. On May 7, 1873, the Missouri Supreme Court heard Minor's case in their chambers on the second floor, west side of the south wing of the Old Courthouse (where the park's administrative offices are today). The state supreme court said that the purpose of the 14th Amendment (which guaranteed the rights of citizenship and equal protection under the law to people born or naturalized in the United States), was meant to extend voting rights to the newly freed slaves, giving African Americans "the right to vote and thus protect themselves against oppression...." The court continued by saying that "There could have been no intention [in the amendment] to abridge the power of the States to limit the right of suffrage to the male inhabitants."

The case was appealed to the U.S. Supreme Court, where Francis Minor made the presentation. He claimed that denial of suffrage in the states was a matter of practice rather than law. For instance, women had voted in New Jersey between 1787 and 1807 when a new state constitution made no mention of woman suffrage. Minor stated that "the plaintiff has sought by this action for the establishment of a great principle of fundamental right, applicable not only to herself but to the class to which she belongs, for the principles here laid down, (as in the Dred Scott case,) extend far beyond the limits of the particular suit and embrace the rights of millions of others, who are thus represented through her. . . . It is impossible that this can be a republican government, in which one-half the citizens thereof are forever disenfranchised."

In October 1874 the U.S. Supreme Court ruled, in a unanimous decision handed down by Chief Justice Morrison R. Waite, that "the Constitution of the United States does not confer the right of suffrage upon anyone," because suffrage was not coexistent with citizenship. The courts ducked the issue of defining a woman's place in society, and refrained from discussing the fact that although women were full citizens under the law, they did not enjoy the same rights and privileges of citizenship as men did. The courts merely upheld the right of individual states to decide which citizens could vote within their borders.

With the court's decision, hopes for a judicial solution to the woman suffrage question were dashed. Suffragists turned their efforts toward state-by-state campaigns to change state constitutions to allow women to vote. These efforts were particularly successful in the West. The territories of Wyoming and Utah already allowed women to vote, and Wyoming came into the union as a state in 1890 with no voting restrictions placed upon women. In 1893, Colorado allowed women the vote; in 1896, Idaho, and Utah came into the union in that year with no voting restrictions against women. The State of Washington allowed women to vote in 1910, followed by California in 1911 and Oregon, Arizona and Kansas in 1912. These nine states were the only states to allow woman suffrage before the ratification of the 19th Amendment in 1920.

Virginia Minor appeared before the U.S. Senate committee on woman suffrage in 1889 to once more state her case. She served as honorary vice president of the Interstate Woman Suffrage Convention, held in Kansas City in 1892. She died in 1894, and was buried in Bellefontaine Cemetery in St. Louis. Since she regarded the clergy as hostile to her goal of equal rights for women, her funeral was conducted without a clergyman. Virginia Minor left $1,000 in her will to Susan B. Anthony for "the thousands she has expended for women," and $500 to each of two nieces, provided they did not marry; if one married, her share would go to the unmarried niece.

Like the Dred Scott case, the Virginia Minor case dealt with definitions of who is a citizen, and what privileges and immunities citizenship entails. The women's movement of the 1870s was actually a national movement for citizenship rights. It was only after the hopes of the movement were dashed with the Minor decision that it became a single-issue, women's suffrage movement. Unfortunately, the animosities which resulted pitted one social group against another, with white women, African-American women, and African-American men all in separate camps and rarely cooperating toward a goal of mutual interest. As a direct result of the denial of the right to vote to women, the courts found ways in which to limit voting rights for African-American men as well, cynically skirting the legislation of the 14th and 15th amendments with "Jim Crow" laws. These laws eventually extended beyond just voting rights to a "separate but equal" system of segregation sanctified by the Supreme Court's ruling in Plessy v. Ferguson. The U.S. Supreme Court was determined to uphold states rights in reaction to the expansion of the Federal Government's power during the Civil War. Individual human rights, rarely considered by the court during this period, were secondary to the preservation of the rights of individual states to regulate voting and other matters within their borders. It was only much later, in the 1950s, that the court began to exercise a fundamental philosophy of human rights, hearkening back to Thomas Jefferson's idealistic "all men are created equal" phrase in the Declaration of Independence. The nation should not only preach ideals and human rights, the Earl Warren-headed court professed, but as the foremost democracy on earth it should also uniformly practice fair and equal treatment for all its citizens, in whatever state they might reside.

While the grand architecture of St. Louis' Old Courthouse provides a backdrop which speaks of the seriousness of the law, as well as the precedents of ancient Greece and Rome upon which our laws were founded, in the Virginia Minor case, as well as in the appeals of the Dred Scott case, the judicial system failed to protect the rights of ordinary citizens. Thus, the building's architecture forms an ironic counterpoint to the events which sometimes unfolded within its courtrooms. Recently, naturalization ceremonies have been held in the rotunda, during which visitors have witnessed the inspiring sight of hundreds of immigrants, from countries all over the world, being given the opportunity to enjoy the full privileges and immunities of United States citizenship, won due to the sacrifice and perseverance of people like Dred Scott and Virginia Minor. The example they set in small, seemingly unimportant cases in St. Louis, led to momentous events which changed our country forever.

Bibliography of Sources

Primary Sources:
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October 16, 1872, p. 1
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January 3, 1873, p. 8.
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Virginia Minor and Women's Right to Vote - Gateway Arch National Park (U.S. National Park Service)

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Trial Script: Trial for the Right to Vote The Virginia Minor case is one of two nationally significant cases (the other being the Dred Scott case) heard in St. Louis' Old Courthouse which were eventually appealed to the United States Supreme Court.

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Historical Timeline of states changing laws concerning non citizen voting

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Historical Timeline of states changing laws concerning non citizen voting

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Right of foreigners to vote in the United States - Wikipedia

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However, over 40 states or territories, including colonies before the Declaration of Independence, have at some time given at least some aliens voting rights in some or all elections. For example, in 1875, the Supreme Court in Minor v. Happersett noted that "citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage.

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Nice historical overview of colonial voting

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Nice historical overview of colonial voting

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by Ed Crews

Among the first things the Jamestown voyagers did when they set up English America's first permanent settlement was conduct an election. Nearly as soon as they landed-April 26, 1607, by their calendar-the commanders of the 105 colonists unsealed a box containing a secret list of seven men picked in England to be the colony's council and from among whom the councilors were to pick a president. Captain John Smith, reporting from Jamestown, wrote that about eighteen days later, "arriving at the place where wee are now seated, the Counsell was sworne, the President elected, which for that yeare was Maister Edw. Maria Wingfield."

Because Smith was at first denied his seat on suspicion of concealing a mutiny, six men-less than 6 percent of the population-participated in the choice of President Wingfield. From such moments in early American history, when the franchise was limited to a special few, grew the vote's extension to broader ranks of individuals with a stake in their government. Derived from English practice, and refined by American experience, from them evolved our belief in the ballot and our ideas about who is entitled to cast one.

Those beliefs and ideas we have reexported to such places as Afghanistan and Iraq. What may become of those endeavors, time will tell. As we wait to see, we might recall that Americans have been experimenting with representative government for 400 years and are still tinkering with the mechanics. As Hofstra University law professor Grant M. Hayden put it in the Oxford Companion to American Law: "The history of voting in the United States has not been characterized by a smooth and inexorable progress toward universal political participation. It has instead been much messier, littered with periods of both expansion and retraction of the franchise with respect to many groups of potential voters."

The first representative assembly in English America convened in Jamestown's church July 30, 1619, with two burgesses from each of Virginia's twenty-one plantations and corporations. From the 1600s to the 1700s, the republican approach to polity spread along the seaboard and developed. By the mid-1700s, Hayden wrote, representative government had become a tradition in the thirteen colonies that became the United States. Voting was commonplace, though not uniform. Each colony pursued its methods, policies, restrictions, and exceptions. But, by modern standards, the right to vote in colonial America was narrow, and there were fewer opportunities for its exercise.

Before the Revolution, colonists generally did not vote for their governors-the chief executives of what they thought of as their countries. The English king appointed most governors, though there were exceptions. Connecticut and Rhode Island voters elected governors. Many colonists did not choose their local officials. Some governors, like Virginia's, appointed justices of the peace, sheriffs, coroners, and clerks. Some towns in such colonies as New Jersey and Pennsylvania, however, had local elections.

Colonists could vote for legislators to the lower house of their assemblies. In 1730, the number of those legislators ranged from seventeen in New Hampshire to ninety-one in Massachusetts. Legislatures tended to pass few laws. Their greatest power was their power to tax. Governors needed colonial politicians to provide funds for their initiatives, government administration, and their salaries.

Typically, white, male property owners twenty-one or older could vote. Some colonists not only accepted these restrictions but also opposed broadening the franchise. Duke University professor Alexander Keyssar wrote in The Right to Vote: The Contested History of Democracy in the United States:

At its birth, the United States was not a democratic nation-far from it. The very word "democracy" had pejorative overtones, summoning up images of disorder, government by the unfit, even mob rule. In practice, moreover, relatively few of the nation's inhabitants were able to participate in elections: among the excluded were most African Americans, Native Americans, women, men who had not attained their majority, and white males who did not own land.

John Adams, signer of the Declaration of Independence and later president, wrote in 1776 that no good could come from enfranchising more Americans:

Depend upon it, Sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end to it. New claims will arise; women will demand the vote; lads from 12 to 21 will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.

Colonial Voting restrictions reflected eighteenth-century English notions about gender, race, prudence, and financial success, as well as vested interest. Arguments for a white, male-only electorate focused on what the men of the era conceived of as the delicate nature of women and their inability to deal with the coarse realities of politics, as well as convictions about race and religion. African Americans and Native Americans were excluded, and, at different times and places, the Protestant majority denied the vote to Catholics and Jews. In some places, propertied women, free blacks, and Native Americans could vote, but those exceptions were just that. They were not signs of a popular belief in universal suffrage.

Property requirements were widespread. Some colonies required a voter to own a certain amount of land or land of a specified value. Others required personal property of a certain value, or payment of a certain amount of taxes. Examples from 1763 show the variety of these requirements. Delaware expected voters to own fifty acres of land or property worth £40. Rhode Island set the limit at land valued at £40 or worth an annual rent of £2. Connecticut required land worth an annual rent of £2 or livestock worth £40.

Such requirements tended to delay a male colonist's entry into the voter ranks until he was settled down and established. They reflected the belief that freeholders, as property owners were called, had a legitimate interest in a community's success and well-being, paid taxes and deserved a voice in public affairs, had demonstrated they were energetic and intelligent enough to be trusted with a role in governance, and had enough resources to be independent thinkers not beholden to the wealthiest class. English jurist William Blackstone wrote in the 1700s:

The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.

Colonies also restricted opportunities to serve in their legislatures. Immediately before the Revolution, five insisted on significant property requirements for officeholders. But candidates tended to be wealthy anyway.

By twenty-first-century standards, colonial assemblies did not conduct much business. They passed few bills and dealt with a narrow range of issues. They tended to linger, however. Legislative sessions lasted weeks, sometimes months. Tradesmen, merchants, and owners of small and medium farms could not afford to neglect work for extended periods. The wealthy could.

Holding office yielded few immediate benefits and some real costs. Men ran for office from a sense of duty and the prestige associated with a legislative seat.

Colonial elections little resembled today's. Election intervals often were irregular. Governors called for polls whenever they seemed necessary-though Massachusetts, Connecticut, Rhode Island, and Pennsylvania, for example, conducted them annually. Sheriffs posted notices of elections in prominent places throughout their bailiwicks. On the appointed day, voters traveled to a courthouse to cast their ballots.

Campaigning by candidates was different from today's. There were no mass media or advertising. Candidates talked with voters in person, walking a line between undue familiarity and aloofness. Prospective officeholders were expected to be at the polls on election day and made a point to greet all voters. Failure to appear or to be civil to all could be disastrous. In some areas, candidates offered voters food and drink, evenhandedly giving "treats" to opponents as well as supporters.

Some highborn Virginians thought meeting the electorate and making campaign promises were demeaning. In 1776, Robert Wormeley Carter lost an election. His father said his son was defeated even though he had "kissed the - of the people and very seriously accommodated himself to others."

Elections often provided an excuse for people to visit neighbors and to conduct business. Behavior was not so restrained as today. A visitor who arrived by stagecoach on election day 1778 at the courthouse in Virginia's Hanover County wrote:

The moment I alighted, a wretched pug-nosed fellow assailed me, to swap watches. I had hardly shaken him off, when I was attacked by a wild Irishman, who insisted on my "swapping horses" with him; and, in a twinkling ran up the pedigree of his horse to the grand-dam. Treating his importunity with little respect, I was near being involved in a boxing match, the Irishman swearing that I did not "rate him like a jintleman."

Diversions aside, the main election-day business was to vote. A few colonies, including Pennsylvania, Delaware, and North Carolina, employed some form of ballot. Others, like Virginia, relied on public voice votes, an English tradition. Voice voting made ballot counts harder to rig and, cast in the presence of friends, neighbors, local officials, and candidates, left no doubt about a voter's intention. In Virginia, voice voting was a spectator event, every voter occupying center stage for a few moments. In his book Gentlemen Freeholders: Political Practices in Washington's Virginia, Charles S. Sydnor wrote:

As each freeholder came before the sheriff, his name was called out in a loud voice, and the sheriff inquired how he would vote. The freeholder replied by giving the name of his preference. The appropriate clerk then wrote down the voter's name, the sheriff announced it as enrolled, and often the candidate for whom he had voted arose, bowed, and publicly thanked him.

Apparently, voter turnout usually was low. Voting, especially in rural areas, took effort. Voters might have to travel a long distance to a courthouse and sometimes paid for food and lodging. The effort and expense, coupled with lost time from shops, inns, and farms, meant some men stayed at home election day.

The Revolutionary War stimulated a desire for reform. Advocates of change said that the conflict was about liberty and representation. They believed in a voting system that embodied those aims for more people. Debates were most intense between 1776 and the adoption of the federal Constitution. The range of disputes was too vast and too complex to cover in depth in this space. The chief concerns, however, focused on extending voting rights to veterans, the implications of a broader electorate, and the validity of property requirements. Property requirements seemed to attract the most attention. They came under attack almost as soon as the Revolution began.

Benjamin Franklin lampooned them when he wrote:

Today a man owns a jackass worth 50 dollars and he is entitled to vote; but before the next election the jackass dies. The man in the mean time has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive, and he is therefore better qualified to make a proper selection of rulers-but the jackass is dead and the man cannot vote. Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the jackass?

Property restrictions gradually disappeared in the nineteenth century. Tax-paying requirements replaced property ownership, though they too waned after the 1820s. By the 1850s, most economic barriers to voting had disappeared.

Some Americans hoped the Constitution would clarify, unify, and perhaps expand voting rights nationally. It did not. Hayden wrote: "Under the constitution, then, the breadth of the right to vote for both state and national elections was fixed by state law. And at the time of ratification, this meant that many people-including most women, African Americans, Native Americans and propertyless white men-could not vote."

By not addressing the suffrage issue more broadly, the Constitution's authors fostered a long-running battle over voting rights. This struggle lasted well into the twentieth century, forming a focal point for the civil rights and women's rights movements.

Twenty-first century perspectives on the restrictiveness of early American voting ideas miss a point. By eighteenth-century standards, Americans enjoyed considerable voting rights, according to Andrew Jackson O'Shaughnessy, a University of Virginia history professor specializing in the Revolutionary period.

The 1700s were the time of absolute monarchs in continental Europe. Centuries of skillful political maneuvering by kings had concentrated power in their hands at the expense of their subjects. "All European countries had something like a parliament at some time, but, these began to disappear in the late Middle Ages through the early modern period," O'Shaughnessy said in an interview. "These groups lost control of the power to tax. Kings found ways to tax without calling an elective body."

Britain was an exception. Parliament retained the power to tax, ensuring elections and representative government. British voting practices, however, tended to be unfair, uneven, corrupt, and far more restrictive than America's. Some towns and cities, for example, could not vote, and growing urban areas went underrepresented, though rural areas with declining population retained parliamentary seats. This system, created in the medieval period, remained unchanged in the 1700s. It begged for reform, which came in 1832.

So by comparison, America with its voting imperfections offered a broad-minded and healthy attitude toward the franchise. O'Shaughnessy also argues that representative government and its voting practices served America well in the post-Revolutionary period.

"One reason that the United States was stable after the war was that it did not need to revamp its system of government, and the men in charge had experience in governing," he said. "This made the country far more stable than places that did not have this tradition and later went through dozens of constitutions and revolutions. In short, when it came to government and voting, Americans had a model to build on."

Ed Crews, a regular journal contributor, provided a story about Peter Francisco, the Hercules of the Revolution, for the autumn 2006 issue.

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by Ed Crews Among the first things the Jamestown voyagers did when they set up English America's first permanent settlement was conduct an election. Nearly as soon as they landed-April 26, 1607, by their calendar-the commanders of the 105 colonists unsealed a box containing a secret list of seven men picked in England to be the colony's council and from among whom the councilors were to pick a president.

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: improving voter turnout by making it mandatory to go to the polls.

The statement at issue:

Jury duty is mandatory; why not voting? The idea seems vaguely un-American. Maybe so, but it's neither unusual nor undemocratic. And it would ease the intense partisan polarization that weakens our capacity for self-government and public trust in our governing institutions. Thirty-one countries have some form of mandatory voting...Mandatory voting nationwide would go counter to our traditions (and perhaps our Constitution)...Instead, a half-dozen states...should experiment with the practice.

- Comment by William A. Galston, senior fellow at the Brookings Institution in Washington, in "Telling Americans to Vote, or Else," The New York Times, Sunday, November 6.

We checked the Constitution, and...

Wikimedia Commons Flickr photo by Tom Arthur

No doubt, a nationwide move to force Americans to vote, using whatever mechanism was available to enforce the requirement, would violate the Constitution as it exists today. As Mr. Galston suggests, it would intrude upon the power of the states, guaranteed by the Constitution, to decide who gets to vote and generally how elections are to be conducted.

It might be done by amending the Constitution. The states' authority has been overridden a good many times that way: The Fifteenth Amendment gave all citizens the right to vote without regard to race; the Seventeenth gave the people the right to elect U.S. Senators; the Nineteenth gave women the right to vote; the Twenty-Third did so for the people of Washington, D.C. [but only for President and Vice President in federal elections]; the Twenty-Fourth abolished the poll tax, and the Twenty-Sixth gave the right to vote to everyone 18 years old or older, in all elections.

But Mr. Galston may well be wrong on a number of his points. First, jury duty is not actually mandatory. Many states assemble jury pools only from the voter registration rolls, and registering to vote is a matter of individual choice. And jurors frequently are allowed to opt out, for personal reasons, and otherwise.

And it is far from clear that states could even experiment with making voting mandatory. Part of the confusion stirred by that suggestion is due to a misunderstanding of the notion that voting is a "civic duty." It is said to be an "obligation" of one's citizenship, but so, one might say, is saluting the flag, and one has a constitutional right not to do that.

Using the coercive power of government to push one to the polls, treats a trip to the polls as neither a right nor a privilege.

That concept of "duty" is categorically different from, say, the duty to serve in the military, back in the days when there was a draft and one's number came up. Even the draft, though, had to withstand, in the Supreme Court, a claim that it was an unconstitutional form of "involuntary servitude" under the Thirteenth Amendment. Compelling a person to cast a vote might also be challenged under that Amendment, and might have more success. The military can't function without enough troops; elections certainly do function, often, with fewer than a third of those who registered actually taking the trouble to vote.

Other arguments might be mounted against experimenting with mandatory voting. If voting is a "privilege," one could make a constitutional claim that, as such, it also is a "privilege" to stay home on election day. There are all kinds of such avoidable civic "privileges."

It is not much of a stretch, if any, to suggest that such civic opportunities (or the avoidance of them) are guaranteed by the obligation of states, under the Fourteenth Amendment, not to "abridge the privileges or immunities of citizens." Moreover, an argument could be made that it violates the "equal protection" guarantee of the Fourteenth Amendment to deny a citizen of an experimenting state the option of not voting for President or for a member of Congress, while a citizen in a non-experimenting state can opt out of the election altogether.

But what is most flawed about Mr. Galston's suggestion is the spirit of it. People who have wanted their freedom have, for centuries, yearned for the right to vote, and stood ready to exercise it as a matter of free will. Using the coercive power of government to push one to the polls, as is sometimes done under totalitarian regimes, treats a trip to the polls as neither a right nor a privilege.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court's work.

Filed Under: Citizenship, Constitution Check, Elections & Voting
Tagged with: william a. galston

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Constitution Check: Could voting be made mandatory?

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: improving voter turnout by making it mandatory to go to the polls.

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MIAMI (AP) - Every year, hundreds of pregnant Russian women travel to the United States to give birth so that their child can acquire all the privileges of American citizenship.

They pay anywhere from $20,000 to sometimes more than $50,000 to brokers who arrange their travel documents, accommodations and hospital stays, often in Florida.

While the cost is high, their children will be rewarded with opportunities and travel advantages not available to their Russian countrymen. The parents themselves may benefit someday as well.

And the decidedly un-Russian climate in South Florida and the posh treatment they receive in the maternity wards - unlike dismal clinics back home - can ease the financial sting and make the practice seem more like an extended vacation.

The Russians are part of a wave of "birth tourists" that includes sizable numbers of women from China and Nigeria.

President Donald Trump has spoken out against the provision in the U.S. Constitution that allows "birthright citizenship" and has vowed to end it, although legal experts are divided on whether he can actually do that.

Although there have been scattered cases of authorities arresting operators of birth tourism agencies for visa fraud or tax evasion, coming to the U.S. to give birth is fundamentally legal. Russians interviewed by The Associated Press said they were honest about their intentions when applying for visas and even showed signed contracts with doctors and hospitals.

There are no figures on how many foreign women travel to the U.S. specifically to give birth. The Center for Immigration Studies, a group that advocates for stricter immigration laws, estimated that in 2012, about 36,000 foreign-born women gave birth in the U.S., then left the country.

The Russian contingent is clearly large. Anton Yachmenev of the Miami Care company that arranges such trips, told the AP that about 150 Russian families a year use his service, and that there are about 30 such companies just in the area.

South Florida is popular among Russians not only for its tropical weather but also because of the large Russian-speaking population. Sunny Isles Beach, a city just north of Miami, is even nicknamed "Little Moscow."

"With $30,000, we would not be able to buy an apartment for our child or do anything, really. But we could give her freedom. That's actually really cool," said Olga Zemlyanaya, who gave birth to a daughter in December and was staying in South Florida until her child got a U.S. passport.

An American passport confers many advantages. Once the child turns 21, he or she can apply for "green card" immigration status for the parents.

A U.S. passport also gives the holder more travel opportunities than a Russian one; Americans can make short-term trips to more than 180 countries without a visa, while Russians can go visa-free only to about 80.

Traveling to the U.S. on a Russian passport often requires a laborious interview process for a visa. Just getting an appointment for the interview can take months.

Some Russians fear that travel opportunities could diminish as tensions grow between Moscow and the West, or that Russia might even revert to stricter Soviet-era rules for leaving the country.

"Seeing the conflict growing makes people want to take precautions because the country might well close its borders. And if that happens, one would at least have a passport of a different country and be able to leave," said Ilya Zhegulev, a journalist for the Latvia-based Russian website Meduza that is sharply critical of the Kremlin.

Last year, Zhegulev sold two cars to finance a trip to California for him and his wife so she could give birth to their son.

Trump denounced birthright citizenship before the U.S. midterm election, amid ramped up rhetoric on his hard-line immigration policies. The president generally focuses his ire on the U.S.-Mexico border. But last fall he mentioned he was considering executive action to revoke citizenship for babies born to non-U.S. citizens on American soil. No executive action has been taken.

The American Civil Liberties Union, other legal groups and even former House Speaker Paul Ryan, typically a supporter of Trump's proposals, said the practice couldn't be ended with an order.

But others, like the Center for Immigration Studies, which advocates for less immigration, said the practice is harmful.

"We should definitely do everything we can to end it, because it makes a mockery of citizenship," said Mark Krikorian, executive director of the Center for Immigration Studies.

Vladimir Zhirinovsky, an outspoken Russian lawmaker, said the country can't forbid women from giving birth abroad, and many of them also travel to Germany and Israel.

"Trump is doing everything right, because this law is used as a ploy. People who have nothing to do with the U.S. use it to become citizens," Zhirinovsky said.

Floridians have shown no problem with the influx of expectant mothers from Russia.

Yachmenev, the agency manager, says he believes it's good for the state because it brings in sizable revenue.

Svetlana Mokerova and her husband went all out, renting an apartment with a sweeping view. She relished the tropical vibe, filling her Instagram account with selfies backed by palm trees and ocean vistas.

"We did not have a very clear understanding about all the benefits" of a U.S. passport, she said.

"We just knew that it was something awesome," added Mokerova, who gave birth to a daughter after she was interviewed.

Zemlyanaya said that even her two nights in the hospital were a treat, like "a stay in a good hotel."

In contrast to the few amenities of a Russian clinic, she said she was impressed when an American nurse gave her choices from a menu for her meals.

"And then when she said they had chocolate cake for dessert, I realized I was in paradise," Zemlyanaya added.

She even enjoyed how nurses referred to patients as "mommies," as opposed to "rozhenitsa," or "birth-giver" - the "unpleasant words they use in Russian birth clinics."

Zemlyanaya said she was able to work remotely during her stay via the internet, as were the husbands of other women, keeping their income flowing. Yachmenev said his agency doesn't allow any of the costs to be paid by insurance.

Most of the families his agency serves have monthly incomes of about 300,000 rubles ($4,500) - middling by U.S. standards but nearly 10 times the average Russian salary.

Yachmenev said he expects that birth tourism among Russians will only grow.

Business declined in 2015 when the ruble lost about half its value, but "now we are coming back to the good numbers of 2013-14," he said.

___

Associated Press writers Curt Anderson in Miami and Varya Kudryavtseva in Moscow contributed to this report.

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Mother Russia: South Florida sees a boom in 'birth tourism'

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MIAMI (AP) - Every year, hundreds of pregnant Russian women travel to the United States to give birth so that their child can acquire all the privileges of American citizenship. They pay anywhere from $20,000 to sometimes more than $50,000 to brokers who arrange their travel documents, accommodations and hospital stays, often in Florida.

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Why 'birth tourism' from China persists, despite US crackdown

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Why 'birth tourism' from China persists, despite US crackdown

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Elizabeth Peratrovich and the 1954 Civil Rights Act

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Elizabeth Peratrovich and the 1954 Civil Rights Act

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Peratrovich and her husband rallied Natives to ensure the passage of the 1945 Anti-Discrimination Act, the first anti-discrimination law in the United States.

Credit... Alaska State Archives

Overlooked is a series of obituaries about remarkable people whose deaths, beginning in 1851, went unreported in The Times.
It was hardly the first affront. They had grown up in a segregated Alaska: separate schools, hospitals, theaters, restaurants and cemeteries. But for Elizabeth Peratrovich and her husband, Roy, Tlingit natives, the sign they spotted one day in late 1941inDouglas, just across the channel from downtown Juneau, was the final straw.

"No Natives Allowed" read the notice on a hotel door.

"The proprietor of Douglas Inn does not seem to realize that our Native boys are just as willing as the white boys to lay down their lives to protect the freedom that he enjoys," they wrote in a letter to Ernest Gruening, the territory's governor, signaling the start of their campaign to fight discrimination in Alaska.

Calling such open bias "an outrage," the couplecontinued, "We will still be here to guard our beloved country while hordes of uninterested whites will be fleeing South."

Gruening agreed with the Peratroviches, and they joined forces. In 1943, they attempted to usher an antidiscrimination bill through Alaska's two-branch Territorial Legislature. It failed, with a tie vote of 8-8 in the House.

In the two years that followed, the Peratroviches redoubled their efforts, urging Native Alaskans to campaign for seats in the Legislature and taking their cause on the road to gain support. They even left their children in the care of an orphanage for a summer so that they could travel across the state more freely.

By the time the new bill reached the Senate floor, on Feb. 5, 1945, Congress had increased the size of the territory's Legislature, two Natives had been elected to it, and Alaska's House had already approved the bill. Though the odds of passage were high, the bill set off hours of passionate debate and drew so many onlookers that the crowd spilled out of the gallery doors.

Senator Allen Shattuck argued that the measure would "aggravate rather than allay" racial tensions.

"Who are these people, barely out of savagery, who want to associate with us whites with 5,000 years of recorded civilization behind us?" he was quoted as saying in Gruening's 1973 autobiography, "Many Battles."

When the floor was opened to public comments, Peratrovich set down her knitting needles and rose from her seat in the back.

Taking the podium, she said: "I would not have expected that I, who am barely out of savagery, would have to remind the gentlemen with 5,000 years of recorded civilization behind them of our Bill of Rights."

She gave examples of the injustices that she and her family had faced because of their background and called on the lawmakers to act. "You as legislators," she said, "can assert to the world that you recognize the evil of the present situation and speak your intent to help us overcome discrimination."

Her testimony, The Daily Alaska Empire wrote, shamed the opposition into a "defensive whisper."

The gallery broke out in a "wild burst of applause," Gruening wrote. The 1945 Anti-Discrimination Act was passed, 11-5.

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Peratrovich and others on Feb. 16, 1945, with Ernest Gruening, Alaska's governor, as he signed legislation that entitled all Alaskans to "full and equal enjoyment" of public establishments. Feb. 16 is now celebrated in Alaska as Elizabeth Peratrovich Day. Credit... Alaska State Library, Alaska Territorial Governors Collection

Gruening signed the bill into law on Feb. 16 - a date now celebrated by the state each year. The legislation entitled all Alaskans to "full and equal enjoyment" of public establishments, setting a misdemeanor penalty for violators. It also banned discriminatory signage based on race.

It was the first antidiscrimination act in the United States. It would be nearly 20 years before the federal Civil Rights Act would be passed, in 1964, and 14 years before Alaska would become a state.

In 2020, the United States Mint will commemorate Peratrovich on a $1 coin. A gallery of the Alaska House of Representatives has been named in her honor, and a bronze bust sculpted by her son Roy Jr. adorns the lobby of the State Capitol.

And yet, aside from her lauded speech, "most people know very little about her," said Annie Boochever, whose biography, "Fighter in Velvet Gloves," written with Roy Peratrovich Jr., was published this year.

"My mother was determined to stand her ground, but she would always do it with grace and dignity," Roy Jr. wrote in the introduction.

She was born on July 4, 1911, in Petersburg, in what was then the District of Alaska, the daughter of a Native woman and her mother's Irish brother-in-law. The two left her in the care of the Salvation Army, and she was adopted by Andrew Wanamaker, a Presbyterian minister, and his wife, Jean, a basket weaver. Wanamaker was a charter member of the Alaska Native Brotherhood, a nonprofit organization formed to address racism.

Elizabeth grew up speaking Tlingit and English and living at a subsistence level with her parents in Sitka, a coastal city in the archipelago of southeast Alaska. When she was 10, the family moved more than 100 miles further southeast to Klawock, a Native village on Prince of Wales Island. There she met her future husband, the son of afisherman from the Balkans, and a Tlingit woman. Though they had attended separate boarding schools, they both graduated from the public high school in Ketchikan, about 70 miles east of Klawock.The school had been integrated after a Tlingit leader successfully sued the school board.

They married in 1931 and returned to Klawock, where Roy Peratrovich worked as a policeman, a chief clerk and a postmaster. He then served as the village mayor for four terms. He was also a member and grand president of the Alaska Native Brotherhood.

Elizabeth raised their children, Roy Jr., Frank Allen and Loretta Marie. She loved to dance andenjoyed watching wrestling on television; she knew all of Gorgeous George's moves and often yelled at the screen as she watched.

"Dad just looked at me and said, 'That's your mother,' " Roy Jr. said in an interview. "We laughed."

In 1941, the Peratroviches moved hundreds of miles north to bustling Juneau, the capital of what was by then the Alaska Territory, to play a larger role in regional politics. By the time Elizabeth was elected grand president of the Alaska Native Sisterhood, a counterpart to the Brotherhood, in 1944, Roy was leading the Brotherhood.

Together they would lay a civil rights framework for future generations, said Paulette Moreno, the Sisterhood's current grand president.

She likened their efforts to "house posts," the often beautifully carved structures upon which a traditional Tlingit house stands. Yet, she said, "The shelter is not solid or complete because we witness discrimination and harassment in our communities today. But Elizabeth and Roy have given us role models."

In 1954, Roy Peratrovich accepted a position with the federal Bureau of Indian Affairs and moved the family to Oklahoma. But when Elizabeth learned in 1956 that she had breast cancer, they returned to Juneau. Once her illness worsened, she entered a Christian Science care center in Seattle, where Roy Jr. was attending college.

She died on Dec. 1, 1958, at 47.

She was buried in the shade of a Sitka spruce in Juneau's Evergreen Cemetery, beside a plot reserved for her husband, who died in 1989.

Every year, a groundskeeper opens the bollards that block street access to the grave for one day, on Feb. 16 - Elizabeth Peratrovich Day.

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Overlooked No More: Elizabeth Peratrovich, Rights Advocate for Alaska Natives (Published 2019)

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Peratrovich and her husband rallied Natives to ensure the passage of the 1945 Anti-Discrimination Act, the first anti-discrimination law in the United States. Overlooked is a series of obituaries about remarkable people whose deaths, beginning in 1851, went unreported in The Times. It was hardly the first affront.

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As citizens, we knew we had ceded some of our individual rights to society in order to live together as a community. But we did not believe this social c...

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John Lewis Goodbye Opinion Editorial, a must read

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John Lewis Goodbye Opinion Editorial, a must read

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John Lewis and the Selma Voting Rights March

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John Lewis and the Selma Voting Rights March

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Learn for free about math, art, computer programming, economics, physics, chemistry, biology, medicine, finance, history, and more. Khan Academy is a nonprofit with the mission of providing a free, world-class education for anyone, anywhere.

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The Plessy Decision

Although the Declaration of Independence stated that "All men are created equal," due to the institution of slavery, this statement was not to be grounded in law in the United States until after the Civil War (and, arguably, not completely fulfilled for many years thereafter). In 1865, the Thirteenth Amendment was ratified and finally put an end to slavery. Moreover, the Fourteenth Amendment (1868) strengthened the legal rights of newly freed slaves by stating, among other things, that no state shall deprive anyone of either "due process of law" or of the "equal protection of the law." Finally, the Fifteenth Amendment (1870) further strengthened the legal rights of newly freed slaves by prohibiting states from denying anyone the right to vote due to race.

Despite these Amendments, African Americans were often treated differently than whites in many parts of the country, especially in the South. In fact, many state legislatures enacted laws that led to the legally mandated segregation of the races. In other words, the laws of many states decreed that blacks and whites could not use the same public facilities, ride the same buses, attend the same schools, etc. These laws came to be known as Jim Crow laws. Although many people felt that these laws were unjust, it was not until the 1890s that they were directly challenged in court. In 1892, an African-American man named Homer Plessy refused to give up his seat to a white man on a train in New Orleans, as he was required to do by Louisiana state law. For this action he was arrested. Plessy, contending that the Louisiana law separating blacks from whites on trains violated the "equal protection clause" of the Fourteenth Amendment to the U.S. Constitution, decided to fight his arrest in court. By 1896, his case had made it all the way to the United States Supreme Court. By a vote of 8-1, the Supreme Court ruled against Plessy. In the case of Plessy v. Ferguson, Justice Henry Billings Brown, writing the majority opinion, stated that:

"The object of the [Fourteenth] amendment was undoubtedly to enforce the equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to endorse social, as distinguished from political, equality. . . If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

The lone dissenter, Justice John Marshal Harlan, interpreting the Fourteenth Amendment another way, stated, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Justice Harlan's dissent would become a rallying cry for those in later generations that wished to declare segregation unconstitutional.

Sadly, as a result of the Plessy decision, in the early twentieth century the Supreme Court continued to uphold the legality of Jim Crow laws and other forms of racial discrimination. In the case of Cumming v. Richmond (Ga.) County Board of Education (1899), for instance, the Court refused to issue an injunction preventing a school board from spending tax money on a white high school when the same school board voted to close down a black high school for financial reasons. Moreover, in Gong Lum v. Rice (1927), the Court upheld a school's decision to bar a person of Chinese descent from a "white" school.

The Road to Brown

(Note: Some of the case information is from Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy. Oxford University Press; New York, 2001.)

Early Cases

Despite the Supreme Court's ruling in Plessy and similar cases, many people continued to press for the abolition of Jim Crow and other racially discriminatory laws. One particular organization that fought for racial equality was the National Association for the Advancement of Colored People (NAACP) founded in 1909. For about the first 20 years of its existence, it tried to persuade Congress and other legislative bodies to enact laws that would protect African Americans from lynchings and other racist actions. Beginning in the 1930s, though, the NAACP's Legal Defense and Education Fund began to turn to the courts to try to make progress in overcoming legally sanctioned discrimination. From 1935 to 1938, the legal arm of the NAACP was headed by Charles Hamilton Houston. Houston, together with Thurgood Marshall, devised a strategy to attack Jim Crow laws by striking at them where they were perhaps weakest-in the field of education. Although Marshall played a crucial role in all of the cases listed below, Houston was the head of the NAACP Legal Defense and Education Fund while Murray v. Maryland and Missouri ex rel Gaines v. Canada were decided. After Houston returned to private practice in 1938, Marshall became head of the Fund and used it to argue the cases of Sweat v. Painter and McLaurin v. Oklahoma Board of Regents of Higher Education.

Pearson v. Murray (Md. 1936)

Disappointed that the University of Maryland School of Law was rejecting black applicants solely because of their race, beginning in 1933 Thurgood Marshall (who was himself rejected from this law school because of its racial acceptance policies) decided to challenge this practice in the Maryland court system. Before a Baltimore City Court in 1935, Marshall argued that Donald Gaines Murray was just as qualified as white applicants to attend the University of Maryland's School of Law and that it was solely due to his race that he was rejected. Furthermore, he argued that since the "black" law schools which Murray would otherwise have to attend were nowhere near the same academic caliber as the University's law school, the University was violating the principle of "separate but equal." Moreover, Marshall argued that the disparities between the "white" and "black" law schools were so great that the only remedy would be to allow students like Murray to attend the University's law school. The Baltimore City Court agreed and the University then appealed to the Maryland Court of Appeals. In 1936, the Court of Appeals also ruled in favor of Murray and ordered the law school to admit him. Two years later, Murray graduated.

Missouri ex rel Gaines v. Canada (1938)

Beginning in 1936, the NAACP Legal Defense and Education Fund decided to take on the case of Lloyd Gaines, a graduate student of Lincoln University (an all-black college) who applied to the University of Missouri Law School but was denied because of his race. The State of Missouri gave Gaines the option of either attending an all-black law school that it would build (Missouri did not have any all-black law schools at this time) or having Missouri help to pay for him to attend a law school in a neighboring state. Gaines rejected both of these options, and, employing the services of Thurgood Marshall and the NAACP Legal Defense and Education Fund, he decided to sue the state in order to attend the University of Missouri's law school. By 1938, his case reached the U.S. Supreme Court, and, in December of that year, the Court sided with him. The six-member majority stated that since a "black" law school did not currently exist in the State of Missouri, the "equal protection clause" required the state to provide, within its boundaries, a legal education for Gaines. In other words, since the state provided legal education for white students, it could not send black students, like Gaines, to school in another state.

Sweat v. Painter (1950)

Encouraged by their victory in Gaines' case, the NAACP continued to attack legally sanctioned racial discrimination in higher education. In 1946, an African American man named Heman Sweat applied to the University of Texas' "white" law school. Hoping that it would not have to admit Sweat to the "white" law school if a "black" school already existed, elsewhere on the University's campus, the state hastily set up an underfunded "black" law school. At this point, Sweat employed the services of Thurgood Marshall and the NAACP Legal Defense and Education Fund and sued to be admitted to the University's "white" law school. He argued that the education that he was receiving in the "black" law school was not of the same academic caliber as the education that he would be receiving if he attended the "white" law school. When the case reached the U.S. Supreme Court in 1950, the Court unanimously agreed with him, citing as its reason the blatant inequalities between the University's law school (the school for whites) and the hastily erected school for blacks. In other words, the "black" law school was "separate," but not "equal." Like the Murray case, the Court found the only appropriate remedy for this situation was to admit Sweat to the University's law school.

McLaurin v. Oklahoma Board of Regents of Higher Education (1950)

In 1949, the University of Oklahoma admitted George McLaurin, an African American, to its doctoral program. However, it required him to sit apart from the rest of his class, eat at a separate time and table from white students, etc. McLaurin, stating that these actions were both unusual and resulting in adverse effects on his academic pursuits, sued to put an end to these practices. McLaurin employed Thurgood Marshall and the NAACP Legal Defense and Education Fund to argue his case, a case which eventually went to the U.S. Supreme Court. In an opinion delivered on the same day as the decision in Sweat, the Court stated that the University's actions concerning McLaurin were adversely affecting his ability to learn and ordered that they cease immediately.

Brown v. Board of Education (1954, 1955)

The case that came to be known as Brown v. Board of Education was actually the name given to five separate cases that were heard by the U.S. Supreme Court concerning the issue of segregation in public schools. These cases were Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. Board of Education of Prince Edward County (VA.), Bolling v. Sharpe, and Gebhart v. Ethel. While the facts of each case are different, the main issue in each was the constitutionality of state-sponsored segregation in public schools. Once again, Thurgood Marshall and the NAACP Legal Defense and Education Fund handled these cases.

Although it acknowledged some of the plaintiffs'/plaintiffs claims, a three-judge panel at the U.S. District Court that heard the cases ruled in favor of the school boards. The plaintiffs then appealed to the U.S. Supreme Court.

When the cases came before the Supreme Court in 1952, the Court consolidated all five cases under the name of Brown v. Board of Education. Marshall personally argued the case before the Court. Although he raised a variety of legal issues on appeal, the most common one was that separate school systems for blacks and whites were inherently unequal, and thus violate the "equal protection clause" of the Fourteenth Amendment to the U.S. Constitution. Furthermore, relying on sociological tests, such as the one performed by social scientist Kenneth Clark, and other data, he also argued that segregated school systems had a tendency to make black children feel inferior to white children, and thus such a system should not be legally permissible.

Meeting to decide the case, the Justices of the Supreme Court realized that they were deeply divided over the issues raised. While most wanted to reverse Plessy and declare segregation in public schools to be unconstitutional, they had various reasons for doing so. Unable to come to a solution by June 1953 (the end of the Court's 1952-1953 term), the Court decided to rehear the case in December 1953. During the intervening months, however, Chief Justice Fred Vinson died and was replaced by Gov. Earl Warren of California. After the case was reheard in 1953, Chief Justice Warren was able to do something that his predecessor had not-i.e. bring all of the Justices to agree to support a unanimous decision declaring segregation in public schools unconstitutional. On May 14, 1954, he delivered the opinion of the Court, stating that "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. . ."

Expecting opposition to its ruling, especially in the southern states, the Supreme Court did not immediately try to give direction for the implementation of its ruling. Rather, it asked the attorney generals of all states with laws permitting segregation in their public schools to submit plans for how to proceed with desegregation. After still more hearings before the Court concerning the matter of desegregation, on May 31, 1955, the Justices handed down a plan for how it was to proceed; desegregation was to proceed with "all deliberate speed." Although it would be many years before all segregated school systems were to be desegregated, Brown and Brown II (as the Courts plan for how to desegregate schools came to be called) were responsible for getting the process underway.

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History - Brown v. Board of Education Re-enactment

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The Plessy Decision Although the Declaration of Independence stated that "All men are created equal," due to the institution of slavery, this statement was not to be grounded in law in the United States until after the Civil War (and, arguably, not completely fulfilled for many years thereafter).

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Alaska MMIW-- missing murdered indigenous women

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Alaska MMIW-- missing murdered indigenous women

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Indigenous women are disappearing and being murdered at alarming rates throughout the United States and Canada. Alaska continues to have one of the highest rates which is devastating for our communities and our families.

This Murdered and Missing Indigenous Women (MMIW) Resource page is meant to provide current information on this national crisis, answer questions and provide resources as to what you and your community can do to help or how to become involved in the national movement to stop the abduction and murder of our Indigenous sisters, mothers and daughters.

Please return periodically to this resource page as the AKNWRC will continue to add links, resources and action items.

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MMIW Resources | Alaska Native Women's Resource Center

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Indigenous women are disappearing and being murdered at alarming rates throughout the United States and Canada. Alaska continues to have one of the highest rates which is devastating for our communities and our families.

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Facts

Fred Phelps and his followers at the Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military. To demonstrate their beliefs, Phelps and his followers often picket at military funerals.

Albert Snyder's son, Lance Corporal Matthew Snyder, was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder's funeral displaying signs that stated, for instance, "God Hates the USA/Thank God for 9/11," "Thank God for Dead Soldiers," and "Don't Pray for the USA." The church notified local authorities in advance that they intended to picket the funeral, staged the picket on public land adjacent to a public street, and complied with all police instructions. Church members also sang hymns and recited Bible verses.

Although Albert Snyder could see the tops of the picket signs on the day of the funeral, he could not read what was written on them and it was not until he saw a news story about the funeral and the picketing that he became aware of the church's message. Snyder sued Phelps and the church claiming, among other things, that their actions caused him severe emotional distress. In defense, Phelps argued that his speech (the picketing and the signs) was protected under the Free Speech Clause of the First Amendment to the Constitution.

Procedural History

A jury in the United States District Court for the District of Maryland agreed with Snyder and awarded him a total of $10.9 million (which the judge lowered to $5 million). The Fourth Circuit Court of Appeals reversed the judgment, holding that Phelps' speech was protected by the First Amendment.

Issues

Whether Westboro's signs and comments while picketing Matthew Snyder's funeral related to matters of public concern and were, thus, entitled to greater protection under the Free Speech Clause of the First Amendment?

Supreme Court Holding

Yes. The Supreme Court's holding turned largely on its determination that the church was speaking on "matters of public concern" as opposed to "matters of purely private significance." The Court explained that "[s]peech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community' or when it 'is a subject of general interest and of value and concern to the public.'" Speech on public issues is entitled to special protection under the First Amendment because it serves the "the principle that debate on public issues should be uninhibited, robust, and wide-open." To determine whether the speech dealt with matters of public concern, the Court examined the "content, form, and context" of the speech. The court noted that none of these factors determines the outcome of the case and that a court must evaluate all the circumstances of the speech, "including what was said, where it was said, and how it was said."

Even though some of the picket signs arguably targeted only the Snyder family, most of them addressed issues regarding the moral conduct of the U.S., the fate of the U.S., and homosexuality in the military. As such, the "overall thrust and dominant theme" of the speech related to broader public issues. Furthermore, the church was picketing on public land adjacent to a public street. Finally, there was no pre-existing relationship between Westboro's speech and Snyder that might suggest that the speech on public matters was intended to mask an attack on Snyder over a private matter. Therefore, the Court held that the Phelps and his followers were "speaking" on matters of public concern on public property and thus, were entitled to protection under the First Amendment.

Argued: October 6, 2010

Decided

March 2, 2011

Vote

8-1

Majority opinion

written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan.

Concurring opinion

written by Justice Breyer.

Dissenting opinion

written by Justice Alito.

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Facts and Case Summary - Snyder v. Phelps

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Facts Fred Phelps and his followers at the Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military. To demonstrate their beliefs, Phelps and his followers often picket at military funerals.

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This film explores the First Amendment right of the "people peaceably to assemble" through the lens of the U.S. Supreme Court case National Socialist Party of America v. Village of Skokie. The legal fight between neo-Nazis and Holocaust survivors over a planned march in a predominantly Jewish community led to a ruling that said the neo-Nazis could not be banned from marching peacefully because of the content of their message.

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Freedom of Assembly: National Socialist Party v. Skokie - Annenberg Classroom

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This film explores the First Amendment right of the "people peaceably to assemble" through the lens of the U.S. Supreme Court case National Socialist Party of America v. Village of Skokie.

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" I have a dream . . . ." Most of us recognize the rhetoric behind the Civil Rights Movement. But behind these famous quotes were men and women of action. Honor the rich heritage of these African-American leaders by transforming their words and deeds into personal life lessons for both you and your child.
Thurgood Marshall: "What is the quality of your intent?"
The story: In 1930, Thurgood Marshall was denied entrance to the University of Maryland because of his race. Undeterred, Marshall graduated instead from Howard University's law school, became the Chief Counsel for the National Association for the Advancement of Colored People (NAACP), and in 1954 argued the landmark Brown vs. Board of Education of Topeka case to the highest judicial body in the nation, later becoming the first African-American to sit on that Court.

The lesson: To help your children put Thurgood Marshall's remarkable persistence into action, help them with their goal-setting. Have them determine something worth pursuing, first of all-and whether your daughter is trying to make the soccer team or your son is trying to get his Eagle Scout award, goal-setting is an important part of turning success into a routine. Break down long-term goals into smaller, more manageable steps, and most importantly, don't be afraid of discussing potential setbacks or roadblocks and how to turn them into assets: after all, Marshall's inability to gain admission to the University of Maryland sparked a lifetime of triumphantly championing Constitutional equality for all.
Little Rock Nine (Ernest Green): "We realized in 1957 that this was not an easy journey. It was one in which we thought we were simply exercising our right to the best education that was available in Little Rock, Arkansas."
The story: The year was 1957 and three years after the groundbreaking Brown vs. Board of Education case, the Little Rock schools were beginning the process of desegregation. Contrary to a federal court mandate, Arkansas Governor Orval Faubus ordered the Arkansas National Guard to prevent Ernest Green, Elizabeth Eckford, Terrence Roberts, Jefferson Thomas, Minnijean Brown, Carlotta Walls LaNier, Gloria Ray Karlmark, Melba Beals and Themla Mothershed from entering the all-white Little Rock Central High. This prompted President Eisenhower to force integration; the 101 st Airborne Division of the U.S. National Guard then escorted the Little Rock Nine to school on September 25, 1957, where they would brave physical, emotional and psychological abuse from many of their white classmates and community members for the next year as they stood together for equality.

The lesson: The Little Rock Nine exemplified courage in the face of overwhelming odds. Fortunately, everyday courage doesn't have to mean physical or emotional endangerment under such duress. Encourage your child to do something outside the realm of his or her comfort zone daily. Even simple, low-risk activities like sitting by someone new on the playground or volunteering an answer in class can be very empowering for children. Little, daily victories can help children to build up their self-esteem for those character-testing decisions down the road that might require real moral courage.
Martin Luther King, Jr.: "Now, I say to you today my friends, even though we face the difficulties of today and tomorrow, I still have a dream."
The story: The most prominent civil rights activist of the 20 th century, MLK is remembered for his passionate rhetoric and uncompromising belief in a future in which, as he said, his "four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." To believe this in the wake of Jim Crow laws and a nation violently polarized over the issue of racial equality must have been difficult enough, but King acted upon that dream by speaking out-and sadly, he paid the ultimate price for it when he was assassinated in 1968.

The lesson: Especially in times like these, optimism like MLK's can be difficult. Children are often acutely aware of the pressures of today's world, both in their own lives and in the lives of their adult role models. Small but significant changes in their day can help them with a more positive outlook on life. Start with their bodies: kids are naturally more cheerful when they are well rested and exercise on a regular basis. Other tricks for increasing positive vibes are listening to upbeat music, keeping a list of encouraging motivational quotes handy (consider using sticky notes and posting them in conspicuous places), and avoiding the company of negative people. Help them to take a personal happiness inventory of the good things in their lives-the old adage "count your blessings" still has merit.
Septima Poinsette Clark: "The greatest evil in our country today is not racism, but ignorance."
The story: Clark, regarded now as one of the mothers of the Civil Rights Movement, was fired from her teaching job in 1956 after some thirty years in education because she refused to quit the NAACP. She became a full-time activist for civil rights and her "citizenship schools" changed the face of the movement. In the 1960s, Clark's educational campaign in the Deep South not only assisted with black voter registration but trained teachers and educated Southern blacks in life skills and literacy. To Clark, education was a form of empowerment. Her citizenship school program grew, and African-Americans once disenfranchised from civic life by racial barriers found their collective voice.

The lesson: Septima Poinsette Clark, who held a bachelor's, a master's and an honorary Ph.D., saw education as a bridge to a more just and equitable world. Help your kid take advantage of educational opportunities available to them. Elective courses and community education via the public library or local college are one way to do this. But even small things, like simply encouraging your child to read on a daily basis-and modeling this practice yourself-can set the bar for lifelong learning in your home. To give the gift of education to others, younger kids might hold a book drive; older children can volunteer to read to younger kids or participate as tutors in multigenerational adult literacy programs.

Celebrating the accomplishments of African-Americans merely by reading about them does a great disservice to the legacy of those blacks who acted upon the power of their convictions, even when it cost them dearly. Help your children put words into action and turn this Black History Month into more than just another history lesson.

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Four Life Lessons from the Civil Rights Movement

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" I have a dream . . . ." Most of us recognize the rhetoric behind the Civil Rights Movement. But behind these famous quotes were men and women of action. Honor the rich heritage of these African-American leaders by transforming their words and deeds into personal life lessons for both you and your child.

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NAACP v. Alabama ex rel. Patterson was a case argued during the October 1957 term of the Supreme Court of the United States. Argument in the case was held on January 15-16, 1958. The case came on a writ of certiorari to the Supreme Court of Alabama. On June 30, 1958, the court unanimously reversed and remanded the judgment of the state supreme court, which had declined to take up the NAACP's appeal of a lower court ruling that ordered the group to turn over information to state authorities required by state law, including the names and addresses of the group's members.

The case: Alabama law required out-of-state organizations to register prior to conducting business within the state. The NAACP, incorporated in New York in 1911, failed to meet the registration requirement, and the order to disclose the names and addresses of all its members living in Alabama.

The outcome: On June 30, 1958, the court unanimously reversed and remanded the judgment of the state supreme court, which had declined to take up the NAACP's appeal of a lower court ruling that ordered the group to turn over information to state authorities required by state law, including the names and addresses of the group's members.

In 1956, Alabama Attorney General John Patterson sued the NAACP because of the group's failure to comply with a state law that required out-of-state organizations to register with the state prior to conducting business. Though the NAACP was incorporated in 1911 under New York law as a nonprofit membership corporation, Alabama provided sufficient evidence to show that the NAACP was conducting business in Alabama, which the NAACP did not challenge. Based on the NAACP's noncompliance, an Alabama state judge ordered the group to turn over all documentation required by the state. The NAACP, however, refused to release the names and addresses of all its members in Alabama, offering instead the names and addresses of its directors and officers. The state court enjoined the NAACP from further conducting business in Alabama, even if the organization were later willing to provide the required documentation. Two separate petitions for hearing before the Supreme Court of Alabama were denied. Argument before the U.S. Supreme Court was held on January 15-16, 1958. The court issued its opinion in the case on June 30, 1958, with Justice John M. Harlan writing for a unanimous court.

Background

Alabama Attorney General's suit (1956)

In 1956, Alabama Attorney General John Patterson sued the NAACP because of the group's failure to comply with a state law that required out-of-state organizations to register with the state prior to conducting business. The NAACP was incorporated in 1911 under New York law as a nonprofit membership corporation. Alabama "maintained that the NAACP had opened a regional office, organized chapters and recruited members throughout Alabama; solicited contributions in Alabama; and provided both financial support and legal aid to black students attempting to gain admission to the white-only University of Alabama." While the NAACP only provided legal support to African-Americans seeking to enter the University of Alabama, the organization was, in the view of Alabama, noncompliant with the state's registration laws.

The suit brought by Alabama, which referenced what it assumed to be the NAACP's involvement in promoting various civil rights episodes like the Montgomery Bus Boycott of 1955 and Autherine Lucy's admission to the University of Alabama, argued that the group was "causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief." Patterson "believed that the resulting negative publicity that accompanied these events in the national media had damaged the state's reputation."

NAACP initial response

Represented by Robert Carter, a lawyer with the NAACP Legal Defense Fund, the NAACP argued in response that the group had never sought to come into compliance with the state's rules because it believed it was "exempt given the non-commercial nature of its activities." The NAACP argued that the registration requirements mandated under Alabama law violated the free speech and free association protections provided under the First Amendment and which are incorporated to state governments under the Due Process Clause of the Amendment XIV, United States Constitution.

Contempt judgement against NAACP

Prior to a hearing, however, Alabama ordered the NAACP to turn over numerous organizational documents, including the names and addresses of its members in Alabama. The NAACP, in response to the lawsuit, agreed it was in noncompliance and would seek to gain the proper qualifications to conduct business in the state. But because the group declined to make public its record of members, a state court judge found the group in contempt and fined it $10,000. The contempt fine was structured to be reduced if the group complied with the full order, including turning over its member records, but would be raised to $100,000 after five days if still in noncompliance.

Arguing that Alabama could not force the disclosure of the group's member records, the NAACP moved to dismiss the contempt judgement. The Alabama courts, however, argued that a petitioner could not seek to dissolve a contempt order until it purged itself of that contempt. Though the NAACP was willing to produce some of the requested records, it would not provide the names and addresses of its members, offering instead the names of its directors and officers. The state of Alabama then requested the authority to deny the NAACP the ability to comply with the registration laws, even if the group were willing and able to do so, which a state court ruling agreed to. When the NAACP offered the state its missing chartering documents, required by law, the state declined to accept them.

Initial United States Supreme Court involvement

When the United States Supreme Court reviewed the case, it reversed the contempt judgement. The Alabama Supreme Court, however, then reinstated it. The NAACP argued for the case to be tried on its merits, but that was denied by Alabama courts, and again appealed to the U.S. Supreme Court. The Supreme Court again remanded the case back to Alabama, ordering the federal district court to try the case on the merits if the Alabama courts again declined to do so.

Alabama agrees to hear case on the merits

The Alabama state circuit court did hear the case on its merits, ruling that the NAACP had violated the law and ordering it to cease doing business in the state. The Alabama appeals court upheld that ruling.

United States Supreme Court agrees to hear case the merits

After five years and four appeals to the U.S. Supreme Court, the case was heard by the U.S. Supreme Court and decided on its merits, rather than remanded back to Alabama courts.

In the U.S. Supreme Court opinion, Justice John Harlan wrote the following:

"

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner's refusal to comply with the production order in this respect must fall.

"

The court also argued that "compelling the disclosure of the NAACP's membership might also encourage some individuals to leave the organization and discourage others from joining."

NAACP resumes operations in Alabama (1964)

Ultimately, in 1964, after many years of appeals and inability to operate within the state, the NAACP again resumed operations Alabama.

Question presented

For January 15 audio, click here.

For January 16 audio, click here.

Transcript

Highlights from oral argument

Robert L. Carter argued the case for petitioner, the NAACP.

Justice Charles Whittaker questioned Carter about whether the Alabama trial court had the authority to compel the NAACP to disclose its membership rolls:

Edmon L. Rinehart, an assistant attorney general for the state of Alabama, argued the case for the respondent, Alabama Attorney General John Patterson.

1. Can the state permanently enjoin an organization from compliance with a statute?

Chief Justice Warren concluded the first day of oral argument inquiring as to whether Alabama could prevent the NAACP from compliance with the statutory registration requirements. This argument carried into the second day of arguments:

2. Statutory v. constitutional issues

Justice Felix Frankfurter had a lengthy exchange with Mr. Rinehart about whether Alabama was inconsistent in its application of the law and process in this case, particularly towards addressing statutory vs. constitutional issues:

3. Could the state refuse if the NAACP offered to register?

Justice Hugo Black, a native Alabaman, asked Mr. Rinehart whether Alabama had any authority to refuse the NAACP should the organization desire to register in compliance with Alabama law:

In a unanimous decision, the Supreme Court reversed and remanded the judgment of the Supreme Court of Alabama. Justice John M. Harlan delivered the opinion of the court.

In his opinion for the court, Justice Harlan first addressed Alabama's assertion that the U.S. Supreme Court lacked jurisdiction in the case. The Supreme Court of Alabama held that NAACP was required to seek review of its constitutional claims by the state supreme court via a writ of mandamus, and not via a writ of certiorari from that court. Accordingly, under a more limited review of the contempt charge, the state supreme court did not find fault with the contempt judgment issued by the lower Alabama court. According to Justice Harlan, that holding was inconsistent with the prior practice of the state supreme court. Citing Alabama case history, he noted, "We are unable to reconcile the procedural holding of the Alabama Supreme Court in the present case with its past unambiguous holdings as to the scope of review available upon a writ of certiorari addressed to a contempt judgment." Justice Harlan, however, noted that the U.S. Supreme Court had jurisdiction to entertain the federal claims made by the NAACP.

After affirming that the rank-and-file members had rights to withhold their membership in the NAACP, and that this same right was assertable by the NAACP itself, Justice Harlan addressed the First Amendment claims made by the Association.

"

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved ... Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs ...

"

After affirming the rights of free association afforded to members of the NAACP, Justice Harlan evaluated whether Alabama's asserted interests in obtaining the membership lists superseded the First Amendment claims of the Association. After determining that the "exclusive purpose was to determine whether" the NAACP "was conducting intrastate business" in violation of Alabama law, as well as if the activities of the NAACP brought the Association within the registration statute and its attendant regulations, Justice Harlan stated,

"

...we are unable to perceive that the disclosure of the names of petitioner's rank-and-file members has a substantial bearing ... As matters stand in the state court, petitioner (1) has admitted its presence and conduct of activities in Alabama since 1918; (2) has offered to comply in all respects with the state qualification statute, although preserving its contention that the statute does not apply to it; and (3) has apparently complied satisfactorily with the production order, except for the membership lists, by furnishing the Attorney General with varied business records, its charter and statement of purposes, the names of all of its directors and officers, and with the total number of its Alabama members and the amount of their dues. These last items would not on this record appear subject to constitutional challenge and have been furnished, but whatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome petitioner's constitutional objections to the production order.

"

Justice Harlan concluded by noting that the Alabama Supreme Court was, in fact, the appropriate location to rule on appeal on the legitimacy of the injunction. Having reversed the judgment of the state supreme court, the U.S. Supreme Court remanded the case to the state supreme court for additional proceedings.

There were no concurring opinions filed.

There were no dissenting opinions filed.

The opinion

The court's opinion in this case, in the words of University of Pennsylvania Professor of Law Anita Allen,

"

...has left an indelible mark. It is the centerpiece of the constitutional jurisprudence of information disclosure ... Thanks to NAACP v. Alabama, government may not force even a controversial group to identify its members, absent establishing a compelling state interest in disclosure. The right of private free association belongs to all who respect the rights of others ... The fact that technology has made it easier to collect, store and share data revealing individuals' group memberships should be of no consequence. The principles of expressive private association, confidentiality and anonymity embodied in the NAACP case should have an abiding place in the jurisprudence of every enlightened democracy.

"

In the years following the case, U.S. Supreme Court decisions have continued to rely on the ruling, including in the following cases:

Talley v. California (1960): "the Court invalidated a Los Angeles ordinance banning distribution of leaflets that did not bear the names and addresses of the people responsible for their distribution."

McIntyre v. Ohio Elections Commission (1995): "the Court struck down an Ohio law prohibiting distribution of anonymous campaign materials."

Buckley v. American Constitutional Law Foundation, Inc. (1999): "the court found that a Colorado statute requiring that door-to-door solicitors wear identification badges violated the First Amendment."

Legal scholars have noted that NAACP v. Alabama isn't always successful in upholding related membership privacy concerns. Courts have upheld perceived infringements on speech and assembly when laws are deemed "narrowly tailored and necessary to further a compelling state interest."

In 2016, however, the Americans for Prosperity Foundation (AFPF) brought a suit against California Attorney General Kamala Harris, challenging a rule that demanded "organizations registering with her office to solicit contributions from Californians first provide her the names and addresses of donors listed on a federal tax return schedule filed confidentially with the IRS." The AFPF claimed the requirement to disclose donor names and addresses violated the First Amendment as well as the principles of the NAACP v. Alabama ruling.

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NAACP v. Alabama ex rel. Patterson was a case argued during the October 1957 term of the Supreme Court of the United States. Argument in the case was held on January 15-16, 1958. The case came on a writ of certiorari to the Supreme Court of Alabama.

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93% of Black Lives Matter Protests Have Been Peaceful, New Report Finds

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The vast majority of Black Lives Matter protests-more than 93%-have been peaceful, according to a report published Thursday by a nonprofit.

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A trailer smoldered behind a Target store near the Minneapolis Third Police Precinct on Friday morning, days after the death of George Floyd in police custody spurred violent protests in the city.

Only hours before, the precinct building itself was set on fire.

Small groups of protesters had begun to gather Friday in the area, shouting slogans including "I can't breathe," which Floyd told the Minneapolis police officer who had a knee on his neck in a bystander's video of the incident.

It's unclear whether the graphic video has alone sparked the outrage across the Twin Cities and the country, or if it's a culmination of anger from a string of high-profile incidents in which three black people were killed.

A timeline of what has transpired in recent weeks and days:

Residents flock to the neighborhood where Floyd was pinned down by police to protest his death.

Protesters clashed with police on Wednesday night in Minneapolis, and protests began to grow around the country. They chanted for justice in Memphis. They stopped freeway traffic in Los Angeles.

The number of protesters grew and tensions escalated on the third night of demonstrations.

Protests spring up across the country including Louisville - where Taylor was shot and killed in her home.

Former Minneapolis police officer Derek Chauvin is arrested, days after video circulated of him holding his knee to George Floyd's neck for at least eight minutes before Floyd died.

SOURCES maps4news.com/©HERE; USA TODAY photos by Trevor Hughes; AP photo; Google Street View; USA TODAY research

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George Floyd protests: How did we get here?

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A trailer smoldered behind a Target store near the Minneapolis Third Police Precinct on Friday morning, days after the death of George Floyd in police custody spurred violent protests in the city. Only hours before, the precinct building itself was set on fire.

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Inside the Capitol Riot: An Exclusive Video Investigation (Published 2021)

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The Times analyzed thousands of videos from the Jan. 6 attack on the U.S. Capitol Building to understand how it happened — and why. Here are some of the key findings.

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A rally in support of President Donald Trump turned deadly when thousands of of attendees stormed the U.S. Capitol building on Wednesday.

The unprecedented chaos in the nation's capital began midday Wednesday at a "Save America" rally at the Ellipse, a park near the White House, where Trump incited his supporters to march to Capitol Hill, where Congress was meeting to certify Joe Biden as the 46th president of the United States.

Federal law enforcement vehicles raced to the Capitol in an effort to beat the mob there. Soon, after breaching through barricades and security checkpoints, the protesters were inside the building -- forcing lawmakers to go into lockdown.

Members of the angry mob went door to door waving Confederate flags, looting the offices of senators and congressmen and repeating the false rhetoric that the president has spread since November -- that Trump was the real winner of the election.

Lawmakers were forced to retrieve gas masks from under their seats as tear gas was released into the rotunda.

A woman was shot amid a standoff between police and protesters in a stairwell outside the House chamber. The woman, Ashli Babbitt, was one of four people who died as a result of the mayhem.

As the minutes turned to hours of violence, politicians called on Trump to instruct his supporters to leave the Capitol. In a Twitter video that was later removed, Trump told them to go home, but repeated that the election was "stolen" from him and said he "loved" the protesters.

People still remained in the Capitol minutes before the 6 p.m. curfew ordered by Washington, D.C., Mayor Muriel Bowser began.

Senators returned to the session at 8 p.m. to confirm electoral votes, but the building was not deemed cleared until about 1:30 a.m., nearly 12 hours after the frenzy began.
For an expanded look into what happened at the Capitol riots watch the ABC News special, "24 Hours: Assault on the Capitol," exclusively on Hulu beginning in the evening on Jan. 11.

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A visual timeline on how the attack on Capitol Hill unfolded

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A rally in support of President Donald Trump turned deadly when thousands of of attendees stormed the U.S. Capitol building on Wednesday. The unprecedented chaos in the nation's capital began midday Wednesday at a "Save America" rally at the Ellipse, a park near the White House, where Trump incited his supporters to march to Capitol Hill, where Congress was meeting to certify Joe Biden as the 46th president of the United States.

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Facts and case summary for Cox v. New Hampshire, 312 U.S. 569 (1941).Reasonable time, place, and manner restrictions on speech are constitutionally permissible.

Facts

A New Hampshire town required that a license be obtained before parades could be held within the town. A group of Jehovah's Witnesses held a sidewalk parade without first obtaining the license and they were fined for violating the law. The Jehovah's Witnesses challenged the New Hampshire law, saying that its provisions violated their First Amendment rights. Specifically, they challenged the fee attached to the permit as a means of suppressing their free speech rights.

Issue

Whether time, place, and manner restrictions on holding a parade violate the First Amendment freedoms of speech and assembly.

Ruling

No.

Reasoning (9-0)

A unanimous Supreme Court, via Justice Charles Evans Hughes, held that, although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on speech for the public safety. The Court held that the New Hampshire law was not meant to prohibit speech, but simply to regulate it when it took the form of a parade or other form of large gathering. The Court said that the government had a legitimate interest in keeping order at such events, and it could impose a fee for the license that was proportional to the amount of police presence that would be required to ensure the peaceable nature of the event.

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Facts and Case Summary: Cox v. New Hampshire

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Facts A New Hampshire town required that a license be obtained before parades could be held within the town. A group of Jehovah's Witnesses held a sidewalk parade without first obtaining the license and they were fined for violating the law. The Jehovah's Witnesses challenged the New Hampshire law, saying that its provisions violated their First Amendment rights.

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A case in which the Court ruled that Oregon’s criminal syndicalism statute violated the due process clause of the Fourteenth Amendment.

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Indigenous Environmental Network
Led by Indigenous water protectors, activists, and tribal leaders from across the country, hundreds of people took part in a protest at the White House on Monday, Indigenous Peoples Day, to demand that President Biden stop the fossil fuel projects that are threatening Native communities from Appalachia to Alaska.

Over 500 people marched from Freedom Plaza to the White House. As Indigenous leaders from frontline fossil fuel fights rallied the crowd on Pennsylvania Avenue, Park Police and Secret Service began to move in and cordon off the area. At one point, the Secret Service handcuffed an Indigenous woman on the ground as she cried out, "I don't want to die!" Ultimately, more than 135 people were ultimately arrested for sitting in at the White House fence. The last people to be taken away by the police were those who led the march and rally: Indigenous women and grandmothers.

"Joe Biden, you have been making false promises. You stopped Keystone XL - what about DAPL, Line 5, MVP?" said Joye Braun of Indigenous Environmental Network, who was arrested at today's action. "This is indigenous land. Indigenous Peoples will be here for 1000s of years. Biden, can you hear us now?"

The demonstrations marked the first day of "People vs. Fossil Fuels," a week of demonstrations and civil disobedience organized by Build Back Fossil Free, a coalition of hundreds of Indigenous and climate, social, economic and racial justice organizations. More protests are planned at the White House each day this week except for Friday, when protestors will march from the White House to Congress to risk arrest on the steps of the Capitol.

"We are going to put our bodies on the line there. If we have to be arrested in order to call attention to what the crisis is and that we need a climate emergency declared, we'll do that," said Casey Camp Horinek, a tribal elder and environmental ambassador for Ponca Nation, who was also arrested at the White House fence this morning. "There's been 500 years of people coming into a territory where all things were interdependent and functioning to a time of crisis, where even Biden's great-grandchildren won't survive if something doesn't change."

(Photo: Shadia Fayne Wood | Survival Media Agency)

From the Line 3 pipeline in Minnesota to oil and gas drilling in Alaska, Indigenous peoples are on the frontlines of the fight against fossil fuels. Major pipeline projects and other forms of oil and gas extraction not only threaten the land and water in Native communities, but are often in direct violation of treaty rights or violate laws around Free, Prior and Informed Consent. Fossil fuel construction has also been linked to sex trafficking and an increase in Missing and Murdered Indigenous Women.

"People are dying right now from the pollutants, the toxins, the climate catastrophes that are happening, and we have to stop the harm," said Siqiñiq Maupin, the director of Sovereign Inupiat for a Living Arctic, which is working to protect Indigenous lands and stop oil drilling in Alaska. "Biden's election was riding on climate change, his entire election on people of color, Indigenous people. But when it really comes to when it matters, our lives are still being sacrificed for oil and gas."

Under attack from these fossil fuel projects, Indigenous peoples are fighting back: and winning. A recent report by the Indigenous Environmental Network and Oil Change International showed how over the last decade Indigenous resistance has stopped or delayed greenhouse gas pollution equivalent to at least one-quarter of annual U.S. and Canadian emissions. By blocking at least 26 major fossil fuel projects, these Indigenous leaders and water protectors have stopped projects equivalent to 400 new coal-fired power plants, or roughly 345 million new passenger vehicles.

When President Biden was running for office he promised to "make tribal sovereignty and upholding our federal trust and treaty responsibilities to tribal nations the cornerstones of federal Indian policy." Once elected, he said, "The federal government has long broken promises to Native American tribes who have been on this land since time immemorial," and promised to move in a new direction.

Biden has broken those promises. He failed to stop the Line 3 tar sands pipeline that was in direct violation of treaty rights. He failed to stop drilling on "public" lands, all of which are originally Native lands and many of which border tribal areas. He defended drilling in the Arctic, which threatens Native communities across the region.

"Biden claimed to be a climate leader during his campaign, and he made promises to steer our nation into a just and renewable transition," said Tasina Sapa Win, a Lakota anti-pipeline activist and a member of the Makwa Initiative, a camp opposing the Line 3 pipeline. "I want to go to D.C. and be like, 'Hey, if you're claiming to be a leader for our climate crisis, to come up with solutions to our issues here, then you need to start living up to your word.' ... It's not a secret that Indigenous people have been against extractive industries since colonizers stepped foot here."

"A few years back, I made a promise to my daughter that I would stop Line 3, and I did everything I could. But [President Biden] failed us," said Taysha Martineau, the founder of the Line 3 pipeline resistance camp Camp Migizi. "But we are still here, and in 100 years my grandchildren will be able to say that their mom tried and that we didn't give up. We're still fighting and we're not going to stop."

Meanwhile, the impacts of the climate and pollution crisis have only grown worse. Hurricanes have devastated communities from New Orleans to New York City. Wildfires have burned millions of acres across the West. Historic droughts and heatwaves have gripped most of the country. And every day, millions of Americans, especially Black, Brown, and Indigenous People, breathe air and drink water poisoned by fossil fuel pollution.

As the Build Back Fossil Free coalition has shown, the President has the executive authority he needs to declare a climate emergency, stop all new fossil fuel projects, and fight for climate justice. The People vs. Fossil Fuels mobilization is calling on the President to:

Stop approving fossil fuel projects and speed the end of the fossil fuel era.

Declare a climate emergency and launch a just and renewable energy revolution.

A more detailed list of demands can be found at: https://peoplevsfossilfuels.org/demands/

Groups involved in Build Back Fossil Free and the mobilization include Indigenous Environmental Network, Arm in Arm, Bold Alliance, Center for Biological Diversity, Chesapeake Climate Action Network, Climate Justice Alliance, Food and Water Watch, Fridays for Future USA, Friends of the Earth USA, Future Coalition, Global Exchange, Global Grassroots Justice Alliance, GreenFaith, Gulf Coast Center for Law & Policy, Honor the Earth NDN Collective, Oil Change International, Our Revolution, Power Shift Network, Presente, Pueblo Action Alliance, Rainforest Action Network, Seventh Generation, Sunrise Movement, Unitarian Universalist Mass Action, WildEarth Guardians, Zero Hour, and more.

Social Media Highlights from Day 1:
About Indigenous Environmental Network
Established in 1990, the Indigenous Environmental Network is an international environmental justice nonprofit that works with tribal grassroots organizations to build the capacity of Indigenous communities. Indigenous Environmental Network's activities include empowering Indigenous communities and tribal governments to develop mechanisms to protect our sacred sites, land, water, air, natural resources, the health of both our people and all living things, and to build economically sustainable communities.

(Image: Indigenous Environmental Network)

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Indigenous people lead White House protest with more than 130 arrests to demand President Biden declare a climate emergency and stop approving fossil fuel projects

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Indigenous Environmental Network Led by Indigenous water protectors, activists, and tribal leaders from across the country, hundreds of people took part in a protest at the White House on Monday, Indigenous Peoples Day, to demand that President Biden stop the fossil fuel projects that are threatening Native communities from Appalachia to Alaska.

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The violent clashes happened on Aug. 12, 2017.

Images of neo-Nazis marching in the streets and violent clashes between alt-right protesters and counterprotesters in Charlottesville last year are still fresh in many residents' minds.

On Aug. 12, 2017, a "Unite the Right" rally in Charlottesville turned deadly when a 20-year-old Ohio man allegedly accelerated his car into a crowd of counter-protesters, killing 32-year-old Heather Heyer and leaving 19 others injured, five critically.

Now, some of the same right-wing groups involved in those events in Charlottesville are planning another protest to coincide with the anniversary this weekend. Virginia Gov. Ralph Northam and the city of Charlottesville declared states of emergency ahead of this weekend's anniversary. The governor said in a press conference Wednesday he will allow agencies to call in the National Guard to assist in security efforts.

But larger protests are planned for Washington D.C. Here's what you need to know.

What happened last year?

Charlottesville, best known for being home to the state university created by Thomas Jefferson, may seem like an unusual choice for a heated battle involving neo-Nazis, but there was a reason that "Unite the Right" organizers chose the town for their rally.

Charlottesville had been in a months-long battle over what to do with a statue of Gen. Robert E. Lee, who led the Confederate army during the Civil War.

Many cities across the country have been grappling with what to do with their Confederate statues, as some feel that they are reminders of a dark time of racism in U.S. history and should be taken down.

Earlier in 2017, the Charlottesville City Council had voted to remove the Lee statue and rename the park where it is located.

A group of white nationalists protested the decision in May, prompting criticism from the mayor. But that protest paled in comparison to what unfolded in August.

The "Unite the Right" rally was scheduled for Sat. Aug. 12 and participants started to gather in Charlottesville the night before.

A group of white nationalists holding lit tiki torches marched through the campus of the University of Virginia, some chanting the Nazi-associated phrase "blood and soil."

The formal rally was scheduled to start at noon Saturday but the first skirmishes of the day between protesters and counter-protesters were reported that morning.

Tensions soared and Virginia Gov. Terry McAuliffe declared a state of emergency before noon that day. The violence reached its peak at 1:42 p.m. when James Alex Fields rammed his car into a crowd of counterprotesters.

Heyer was killed and 19 others were injured.

Two Virginia State Police troopers were killed when their helicopter crashed outside of Charlottesville. The troopers, Lt. H. Jay Cullen and Trooper-Pilot Berke M.M. Bates, were lending air support in response to the violence in Charlottesville.

Trump's controversial response

President Donald Trump was spending time at his golf club in Bedminister, New Jersey, and released a statement condemning the violence but not calling out the white nationalist and neo-Nazi groups in attendance.

"We condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence on many sides - on many sides," Trump said in a short statement delivered in New Jersey. "It's been going on for a long time in our country. Not Donald Trump. Not Barack Obama. It's been going on for a long, long time."

Trump tweeted twice more that afternoon, offering condolences to the families of Heyer and the troopers, but did not make any specific mention of the controversial groups.

On Aug. 13, a White House spokesperson who would not be publicly identified released a statement about Trump's comments Saturday.

"The president said very strongly in his statement yesterday that he condemns all forms of violence, bigotry, and hatred, and of course that includes white supremacists, KKK, neo-Nazi and all extremist groups. He called for national unity and bringing all Americans together," the White House spokesperson said.

It wasn't until two days later, on Monday afternoon, that Trump made another televised statement, this time, being more explicit.

"Racism is evil. And those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists and other hate groups that are repugnant to everything we hold dear as Americans," he said.

"To anyone who acted criminally in this weekend's racist violence, you will be held fully accountable. Justice will be delivered," he added.

But Trump added more fuel to the fire on Tuesday, Aug. 15 during a televised press conference in which he lashed out at criticism of his initial statement.

Asked about his immediate response Saturday, Trump quickly went on to blame both sides for the conflict, adding that there were "very fine people" among both the white supremacists and the counter-protesters.

"I think there is blame on both sides. You look at both sides. I think there is blame on both sides," Trump said during his remarks on Aug. 15.

"You had some very bad people in that group. You also had some very fine people on both sides," he added.

What is expected to happen this weekend?

Groups from both sides of the conflict have planned public demonstrations on the anniversary of the Charlottesville clashes, but this time they're moving it to a bigger stage.

Permits for protests have been granted in different parts of Washington D.C., with the organizers of the original "Unite the Right" rally planning to march from a nearby Metro station to a demonstration in Lafayette Square Park, directly opposite the White House.

Multiple counter-demonstrations have also received permits, including groups like Black Lives Matter and an individual who plans to burn a Confederate flag in Lafayette Park.

More details about the demonstrations are expected to be released in the coming days.

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What to know about the violent Charlottesville protests and anniversary rallies

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The violent clashes happened on Aug. 12, 2017.

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Confederate and Columbus statues toppled by US protesters

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Statues connected to slavery and colonialism are targeted as George Floyd protests continue.

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supreme court strikes down housing covenants

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supreme court strikes down housing covenants

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Lum v. Rice-- enshrines white supremacy and segregation by race

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Lum v. Rice-- enshrines white supremacy and segregation by race

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Lum v. Rice, 275 U.S. 78 (1927), is a United States Supreme Court case in which the Court held that the exclusion on account of race of a child of Chinese ancestry from a public school did not violate the Fourteenth Amendment to the United States Constitution. The decision effectively approved the exclusion of any minority children from schools reserved for whites.

The case was brought by the Lum family of Rosedale, Mississippi, Chinese immigrants with two American-born children who had attended local public schools for white children without incident until, in the wake of an increase in anti-Chinese sentiment nationwide after passage of the Immigration Act of 1924, they were told by administrators that their children could only attend the district's school for black children. Since it was poorly funded and equipped, the Lums did not want their daughters to attend there. They filed suit in local court to force the district to allow their daughters to continue attending the white school.

Earl Brewer, a former governor of the state, represented the Lums, arguing that forcing the girls to attend the inferior school violated their Fourteenth Amendment, and that since they were not Black they should be allowed to attend the schools for whites. He was able to win the writ of mandamus they sought, but then the school district appealed to the Mississippi Supreme Court, which heard the case and unanimously reversed the lower court, holding that Mississippi's constitution and laws clearly distinguished Asians ("Mongolians", it called them) from whites, so the Lums could not attend white schools.

The U.S. Supreme Court granted Brewer's certiorari petition to review the case. The case was never argued; instead just decided on its briefs, and the Lums' was so poor it led Justice Louis Brandeis to ask around if some other lawyer could be found on short notice to argue the case. Chief Justice William Howard Taft's short unanimous opinion ended with a pronouncement that all racial segregation in schools was constitutional; while it was overturned by Brown v. Board of Education a quarter-century later, it gave greater legal foundation to educational segregation in the short term and set back efforts to end it.

In the late 19th century, following the Civil War, the United States began to deal with the place in society of two racial minorities: Blacks, especially those newly freed from slavery, and Chinese, who had begun emigrating to the West Coast in large numbers first to try their luck in the California Gold Rush and later to work on railroad construction and mining. Both came to be seen as a threat to an existing social hierarchy dominated by whites: Blacks for their newly free status, and the Chinese as cheap labor. States that had formerly allowed slavery dealt with the former through Jim Crow laws mandating racial segregation in public accommodations such as transport and public schools, Black Codes that made specific acts crimes when committed by Blacks, and vaguely worded anti- vagrancy laws that allowed many Black men to be taken into custody for purposes of convict leasing.

Legal discrimination against Chinese immigrants began in California during the 1870s. The Naturalization Act of 1870, which allowed unrestricted entry and a path to citizenship for any immigrants of African descent, denied it to anyone of Chinese descent. In 1882 Congress passed the first Chinese Exclusion Act, limiting further Chinese immigration to narrowly defined categories of people, including a bar on family members of Chinese citizens already in the U.S., the only time the law has mandated immigrants be denied admission explicitly on the grounds of racial identity or national origin.

In the 1885 case Tape v. Hurley, California's Supreme Court held that a Chinese student's exclusion from a San Francisco public school was unconstitutional; the state responded by allowing the establishment of segregated schools.

Two years earlier, in the Civil Rights Cases, the Court had held that the Thirteenth and Fourteenth Amendments to the Constitution, both passed in the years after the war, only barred racial discrimination by the government, not private parties. In 1896's Plessy v. Ferguson, which went further and upheld the constitutionality of laws that mandated segregation in private facilities open to the public such as rail transport, Justice John Marshall Harlan, the sole dissenter as he had been in the Civil Rights Cases, noted the dissonance between the legal treatment of Blacks and Chinese:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

Harlan's belief that the Chinese were culturally incapable of assimilating into American society and thus properly barred from naturalizing was personal; in United States v. Wong Kim Ark two years later, where the Court held that American-born Chinese were citizens, he joined Chief Justice Melville Fuller in dissenting in part on those grounds.

Jeu Gong Lum, a native of southern China, illegally immigrated to the U.S. from Canada in 1904 and settled in the lower Mississippi Delta, where immigration laws were less enforced as employers sought to replace Black workers who had left for the North. There he married Katherine Wong, a Chinese American woman who had been adopted as an orphan in China and raised mostly in the U.S. by a Chinese father who grew wealthy operating a general store. Lum, too, opened a general store in the small Bolivar County town of Benoit that primarily served the area's Black population, barred from many business establishments by strict racial segregation laws. Operating a store made Lum a merchant and thus exempt from the Exclusion Act. Black patrons preferred shopping at Chinese-owned stores since the Chinese were less insistent on being addressed with honorifics.

The couple had two daughters, Berda and Martha, and later a son, Hamilton. Both Gong Jeu and Katherine especially sought to make sure their children lived a better life than they had. While Berda resisted her parents' efforts to educate her, desiring to leave the Delta region when she grew up, Martha consistently earned good grades in the local school.

In 1923, the Lums bought a house in Rosedale and moved there. The girls attended Rosedale Consolidated High School of the Rosedale Consolidated School District for two semesters. The following September, that ended when the school district, in response to the passage of the Immigration Act of 1924, which effectively ended all immigration from Asia, told the Lum girls they could no longer attend its schools for whites because they were not considered white.

There was no school in the district maintained for Chinese students, and the Lum daughters were required to attend school. That left the district's school for colored children as the only public school available. It was underfunded and poorly equipped; the Lums did not want their daughters educated there. They retained local lawyer Earl L. Brewer, a former governor who had just overwhelmingly lost an election to the U.S. Senate, to represent them in legal action against the district. The Lums and their daughters were the plaintiffs; all the members of the school district's board of trustees, and other state education officials, were named as defendants, with the head of the board of trustees, Greek Rice, as the lead. Among the state officials was the state superintendent of education, Willard Faroe Bond, whom Brewer believed to have betrayed him politically while he was governor; Brewer thus drew some satisfaction from the knowledge that Bond would be personally served with the legal papers.

A lower court granted the plaintiff's request of a writ of mandamus to force the members of the Board of Trustees to admit the Lums. Their case was not that racial discrimination as such was illegal but that his daughter, had incorrectly been classified as by the authorities.

The trustees appealed to the Supreme Court of Mississippi, which decided to hear the case , with all six justices participating. Assistant attorney general Elmer Clinton Sharp argued the case for the school district, reiterating the history of segregation in the state and saying that Asians and Native Americans were not considered white. Brewer argued in response that while the state constitution had indeed not put whites and Asians on equal footing, it had also distinguished Asians and Blacks, and therefore the Fourteenth Amendment required that the Lum children be schooled with whites.

The court reversed the lower court's decision and allowed the Board of Trustees to exclude Martha Lum from the school for white children. Justice George Ethridge, a former teacher to whom his colleagues generally deferred in matters related to education, wrote for a unanimous court that considered the case as a question of whether the Lum children were within the statutory definition of white. While some other states' courts and statutes had extended the definition of "white" to include members of other races who were not Black, Mississippi's constitution and statutes were clearer in defining white people as those not "colored". "[W]e think," he wrote, "that the constitutional convention used the word 'colored' in the broad sense rather than the restricted sense; its purpose being to provide schools for the white or Caucasian race, to which schools no other race could be admitted, carrying out the broad dominant purpose of preserving the purity and integrity of the white race and its social policy."

Ethridge found the most relevant precedent to be Moreau v. Grandich, a 1917 case where, in an opinion he had also authored, a unanimous court upheld the dismissal of several children of a white couple from the Bay St. Louis schools after it was learned that they had a Black great-grandmother. While that case had not gone beyond the instant issue in deciding that those whose racial heritage was colored above a certain threshold were themselves legally colored, Ethridge wrote, "a careful reading of the opinion ... shows that the court did not intend to restrict the term 'colored' to persons having negro blood in their veins or who were descendants of negroes or of the negro race."

The state had also, since 1892, prohibited marriages between whites and Asians, for whom it used the term "Mongolians", the latter being defined as anyone with more than one-eighth Asian ancestry. Asians and coloreds, also barred from marrying whites, were free to marry each other, Ethridge noted. He added that a pair of U.S. Supreme Court decisions had both held that Asians were not white or Caucasian in the historical sense of how that word had been understood in the United States.

Lum's right to an education was not affected by the decision, Ethridge concluded. She could attend the colored school, but did not have to, as she could also be educated privately, as long as she was educated. Lum and Brewer petitioned the U.S. Supreme Court for certiorari.

After the Supreme Court agreed to hear the case in 1927, Brewer was preoccupied with representing the relatives of a Black man in Bolivar County who had been murdered immediately following his acquittal on murder charges in the death of a local white farmer's son, as they sought to have the killers brought to justice. Brewer handed the Lum case to a younger associate, James Flowers, who had prior to his employment with Brewer worked primarily as corporate counsel for several railroads in Mississippi. Flowers was aware that he was ignorant in the areas of law related to the case, especially the Fourteenth Amendment.

Flowers' brief for the Supreme Court justices was inconsistent, alternating between defending segregation but attacking it inasmuch as he argued the Constitution protected Lum from being forced to attend a colored school, yet ending with a suggestion that segregated schools were inherently unequal. Justice Louis Brandeis, who believed the Fourteenth Amendment allowed too much federal interference with state authority yet was open to arguments that discrimination against members of minority groups violated their due process rights under the Fifth Amendment, to the point that he had written several majority opinions to that effect (most recently Ng Fung Ho v. White, another case involving Chinese petitioners) was deeply disturbed by the brief; he asked a friend, Felix Frankfurter (himself later appointed to the Court), if it might be possible to find more competent counsel for the Lums.

The Lums themselves, realizing that the case had implications for all Chinese Americans, had similar concerns, and had arranged for a longtime friend of theirs, not a lawyer, to travel to Washington and be present at oral argument. That would be unnecessary. Within a week of filing the brief, the Court informed Flowers by telegram that it had scheduled the case for argument within the next week.

The short time available to travel to Washington, and the possibility that the case would be forfeited to the state if no one argued for the Lums, was the least of Flowers' concerns. He had never argued a case before any court, considering himself a poor public speaker. First he sought a continuance but learned that was unlikely, so then he and Brewer asked if the case could be decided purely on the basis of the briefs. The Court allowed that, and there would be no oral argument of Lum v. Rice before it.

Late in November 1927 the Court announced its decision. In a unanimous opinion written by Chief Justice and former U.S. President William Howard Taft, it affirmed the Mississippi Supreme Court's ruling and thus the position of the Board of Trustees. Taft held that the petitioner had not shown that there were no segregated schools accessible for the education of Martha Lum in Mississippi:

We must assume, then, that there are school districts for colored children in Bolivar county, but that no colored school is within the limits of the Rosedale consolidated high school district. This is not inconsistent with there being at a place outside of that district and in a different district, a colored school which the plaintiff Martha Lum may conveniently attend.

Taft further stated that given the accessibility of segregated schools, the question then was whether a person of Chinese ancestry, born in and a citizen of the United States, was denied equal protection of the law by being given the opportunity to attend a school that received "only children of the brown, yellow or black races." In reference to Cumming v. Richmond County Board of Education, Taft concluded that the "right and power of the state to regulate the method of providing for the education of its youth at public expense is clear." Additionally, Taft pointed to a number of federal and state court decisions, most prominently Plessy v. Ferguson, all of which had upheld segregation in the public sphere and particularly in the realm of public education. Accordingly, Taft concluded:

Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.

The Lums had pre-emptively moved across the river to Arkansas, which did not restrict Chinese attendance at its schools as strictly, in case the decision went down against them. When it did, they settled in Elaine, where they opened another grocery and Katherine was able to find a high school that would accept her daughters. It was not as prosperous a market as the one in Rosedale, and in later years the family left the Delta region entirely.

Other Chinese in Mississippi likewise began leaving the Delta, some even returning to China; save for those who found a few school districts still willing to accept their children in their white schools. Other Chinese families established private schools; in the late 1930s the state of Mississippi formally established some schools for Chinese students. They were never well-attended, and the last one closed in 1947.

Earl Brewer continued to pursue civil rights cases in the courts. In 1936 he successfully argued Brown v. Mississippi before the Supreme Court, which held that confessions obtained through beatings and torture were inadmissible as evidence, reversing the convictions of several of his clients. Brewer died in 1942, before he could live to see schools desegregated, but that had happened by the time Jeu Gong died in 1965 and Katherine in 1988.

Newspapers around the country carried the Associated Press account of the decision. Some responded with editorials. The Los Angeles Times put its response, praising the Court and advocating for further segregation, on the front page:

The Supreme Court's opinion points the way toward making [segregation] still more effective. So far segregation depends largely upon private agreement, and private agreements sometimes break down when they are submitted to severe strain. It will be better all around when they can be given legal backing.

The Chicago Defender, a prominent Black newspaper, also ran a front-page editorial, condemning the decision as ignoring the " separate but equal" provisions supposedly governing segregation in light of the conditions found in many schools for Black children only:

It is the opinion of Chief Justice William Howard Taft that these opportunities are equal ... The little shacks you attend, in which a large coal stove in the center of the room furnishes both heat and smoke-the ramshackle, tumble-down contraption, situated far down among the cotton stalks-is equal of the beautiful stone and brick structure attended by whites. You see, the three months you are allowed to attend this institution, between the sowing, chopping and picking of cotton, are equal to the nine months white children go to school. Your teachers, barely out of the primary school themselves, possessing no special training for teachers, are the equals of white teachers all especially trained and prepared for the work they undertake.

Lum continued to be cited in briefs supporting racial segregation, and court decisions upholding it, until it was effectively overruled 27 years later by the Court's decision in Brown v. Board of Education, which outlawed segregation in public schools. An important part of the decision still stands-the power of the state to make racial distinctions in its school system, and to determine the race of its students. It has not been overturned because it was not an issue in Brown.

It is remembered today for increasing the scope of permissible segregation. Historian and educator James Loewen called Lum "the most racist Supreme Court decision in the twentieth century". Legal scholar Jamal Greene has called it an "ugly and unfortunate" decision. "The Court's ruling had established a precedent more powerful than the Lum family could have imagined", observed Adrienne Berard, in Water Tossing Boulders, a history of the case. "By fighting, they had only made the enemy stronger."

Payne, Charles (1984). "Multicultural Education and Racism in American Schools". Theory into Practice. Taylor & Francis. 23 (2): 124-131. doi:10.1080/00405848409543102. JSTOR 1476441.

White, G. Edward. "The lost episode of Gong Lum v. Rice." Green Bag 18.2 (2015): 191-205. online

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Lum v. Rice , 275 U.S. 78 (1927), is a United States Supreme Court case in which the Court held that the exclusion on account of race of a child of Chinese ancestry from a public school did not violate the Fourteenth Amendment to the United States Constitution.

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great short (25 minutes) documentary about segregation in housing and redlining

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great short (25 minutes) documentary about segregation in housing and redlining

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Mark lopez

director, designer & animator

Mark Lopez is an award-winning director of motion design who has refined his craft at world-class motion studios on both coasts of the U.S. alongside some of the most creative minds in the country. Mark specializes in illustrated 2D mixed media storytelling with an eye for composition. Silkworm is Mark's studio practice, based in Austin, Texas, and collaborating all over the world.

RICHARD ROTHSTEIN

WRITER & NARRATOR

Richard Rothstein is a distinguished fellow of the Economic Policy Institute, a senior fellow, emeritus, at the Thurgood Marshall Institute of the NAACP Legal Defense Fund and a senior fellow of the Haas Institute at the University of California (Berkeley). Richard's book, The Color of Law: A Forgotten History of How our Government Segregated America , was designated one of ten finalists on the National Book Awards' long list for the best nonfiction book of 2017.

YOUTOOCANWOO

MUSIC, SOUND DESIGN & MIX

YouTooCanWoo is a an artist-owned music and audio production company based in Brooklyn, New York. YouTooCanWoo's holistic approach to audio blurs the lines between the conventional roles of music and sound design, blending genres, influences, and historical context to create truly immersive experiences. They have been responsible for the production and mixing of MGMT's debut EP Time to Pretend, creating the sound identity of Spotify, MTV, and NBCUniversal; the sound design for official SXSW Film Festival selection Mateo. as well as the original music, sound design and mix in ads for major brands like Apple, Google, Hershey's, and Pepsi.

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Short Film based on the book, The Color of Law by Richard Rothstein. The forgotten history of how our federal, state and local governments unconstitutionally segregated every major metropolitan area in America through law and policy.

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https://www.cfr.org/election2020/candidate-tracker/foreign-policy-issues

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President-Elect Joe Biden will face a suite of challenges on the global stage, from nuclear tensions with North Korea to coordinating a response to the ongoing pandemic.

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Securing a Democratic World

A general view of the NATO official tribune is pictured, July 2018. (Getty/Ludovic Marin)

Introduction and summary

Reviving America's strategic position in the world in the wake of President Donald Trump will require a foreign policy that both firmly embraces democratic values and systematically pushes back against authoritarian competitors such as Russia and China. The Trump presidency has already severely undercut the United States' global standing, causing immense harm to the nation's strategic position, credibility, and moral authority. Allies are losing faith in American leadership while illiberal regimes are growing in number, stature, and audacity. Trump's rise reflects a pre-existing deterioration in the vitality of democratic systems, a global phenomenon which his presidency has now turned into a crisis. The damage cannot be reversed simply by electing a different president or reverting to previous foreign policy approaches. Instead, the United States must adopt bold new policies to regain the advantage in great power competition and help vulnerable democracies, including its own, resist authoritarian influence and strengthen a growing global democratic community. This report explains why a democratic values-based foreign policy is the right choice for the United States on both a strategic and moral level. It also offers specific policy recommendations as a roadmap for how the next administration could pursue a democratic values-based foreign policy.

Today, democracy is under strain in America and threatened across the globe. The spread of democratic governance, which for decades seemed all but inevitable, has stalled and now faces serious setbacks. Across the democratic world, ordinary people have lost trust in their institutions of government and delivered stunning rebukes to their political establishments. These setbacks have also emboldened authoritarian regimes. Russia, China, and other illiberal states have sought to exploit the openness of democratic societies for their geopolitical advantage and have put forward an alternative autocratic model for politics and economic development that undermines liberal democratic values.

America's enduring security, prosperity, and strength depend on the survival and success of democracy-both at home and abroad-as well as on the resilience of institutions, rules, and norms that protect the liberal democratic values on which the United States' global standing is built. Yet at the very moment when liberal democracy faces its greatest ideological challenge since the Cold War, President Trump has chosen to reject America's historic role as leader of the world's democracies. He has treated democratic allies as ideological foes and murderous dictators as respected friends and equals while stoking nativist and isolationist impulses among the American people. President Trump has also systematically denigrated democratic values and norms at home through unprecedented attacks on the press, the independent judiciary, and law enforcement, as well as political purges of civil servants.¹ While U.S. democratic institutions have shown resilience in the face of his challenges, it is already clear that some of the damage Trump does will outlast his presidency. The critical question today is whether the United States after Trump will summon the resolve to lead, protect, and expand the world's democracies or stand by and suffer the consequences as autocracy and illiberalism crack the foundations of the American-led global system.

Advancing a values-based foreign policy after Trump will inevitably invite a vigorous debate over how-or even whether-values should factor into U.S. foreign policy. Critics will likely point to America's prior foreign policy errors and shortcomings, for example, the use of democracy promotion aims to justify misguided foreign policies such as the invasion of Iraq; the broader U.S. failure to promote democracy in the Middle East in the wake of the Arab Spring; and Cold War-era support for dictators who sided against the Soviet Union. Critics may also point to the urgency of domestic challenges relative to foreign policy ones or fear of U.S. overextension abroad to argue that a values-based foreign policy is unwise or simply not possible. This report takes these critiques seriously. However, in reflecting on the stakes for U.S. leadership, present and future, it arrives at the conclusion that an American foreign policy shorn of American values would ultimately deliver less security and prosperity at home, while making U.S. leadership in the world less sustainable and impactful.

This report asserts that an approach that embraces America's core democratic values will allow the United States to compete more effectively with authoritarian powers such as China and Russia and will deliver better results for the country in the long haul. To address setbacks abroad, the United States will need to pursue a new foreign policy that systematically puts liberal democratic values at the center of its engagement with the world. This will require more than just lip service. It will entail a meaningful, sustained shift in how the United States conducts its foreign relations, launched with quick and decisive action and sustained with persistence and strategic vision.

A democratic values-based foreign policy strategy is rooted in faith in democratic self-government, not just as being better than all the alternatives but also as a value in and of itself. Such a foreign policy will also advance U.S. national interests. America's presence as a prosperous, multi-ethnic, free democratic society poses a challenge to autocrats through the model it sets. Instead of taking this power for granted, it is time for America to cultivate it.

At the heart of such an effort should be a realignment of American foreign policy to meet the challenge posed by resurgent illiberalism. This can be done by forging stronger cooperation among democratic states, including in the defense of democracies under assault and the expansion of the global democratic space. In both the short- and long-term, the United States will need to take the following steps:

Restore democratic values and norms at home.

Work with democratic allies to design and implement a counter-authoritarian playbook to push back against the encroachment on and abuse of the open systems of democratic states.

Build stronger international networks of democracies to create a global democratic bulwark.

Privilege U.S. relationships with democracies, and reflect this in U.S. policy decisions and spending.

Strengthen international support mechanisms for populations nonviolently mobilizing for democracy around the world, while more systematically pressuring countries to uphold human rights and adhere to international law.

Reorienting U.S. foreign policy toward a values-based approach will require policymakers to take the long view, recognize the intrinsic strength of democratic governance, and acknowledge that the best way to advance democracy worldwide is through the example set by successful democracies. Critically, it will also require U.S. leaders to heed the lessons of history by recognizing that the most effective way to promote and sustain democracy is supporting and encouraging democratic institutions and movements, rather than employing coercive measures. The United States has numerous tools to vigorously defend its values and advance democracy without seeking to impose it using force.

Some may fear that a values-based foreign policy would come at the expense of traditional U.S. interests. But that critique misdiagnoses and underestimates the geopolitical challenge to U.S. interests that a rising illiberal tide presents. American interests will be far more difficult to secure if liberal democracy is supplanted as the pre-eminent and most sought-after political system. There will inevitably be times when U.S. interests will necessitate partnering with nondemocratic regimes. Still, a principled but pragmatic approach can do both: cooperate selectively with such regimes on matters of vital national interest while also recognizing that the greatest strategic gains to U.S. security and prosperity will rest on the success of other democracies and that America's staying power and strategic resilience will depend on investing in them.

The challenge: A democracy crisis at home and abroad

The ascendance of democracy globally and the emergence of an increasingly robust set of international rules and institutions fostered a prevailing assumption that a more democratic world was here to stay: Democratic states would prosper and more autocratic states would transition to democracy. But this optimism about democracy has waned due to a number of varying and reinforcing trends.

First, democracies have experienced setbacks. Many countries once held up as examples of democratic progress-such as Poland, Turkey, and Venezuela-have experienced a deterioration in rule of law and electoral competitiveness.⁵ In other countries, such as Thailand and Egypt, democratically elected governments were overthrown by force. Meanwhile, across the Middle East, the democratic promise of the Arab Spring faltered in the face of violent repression. During this same period, illiberal and insular populist movements became resurgent in many established democracies, weakening international cooperation among democratic states and imperiling many of the achievements of the postwar era. These movements occurred most notably in the European Union, where a Center for American Progress and American Enterprise Institute study found that "in the past decade, such parties have moved from the margins of Europe's political landscape to its core."⁶

A key feature of this illiberal resurgence has been elected leaders' use of strongman tactics to undermine democratic institutions and norms. In Turkey, President Recep Tayyip Erdoğan has gained increasing control over the political, economic, and military aspects of the Turkish state.⁷ In Hungary, Prime Minister Viktor Orbán has used xenophobic rhetoric and crony capitalism to erode political checks and balances and consolidate power.⁸ Poland's current leaders and others have followed Orbán's playbook, attacking the independence of the country's media and judiciary and campaigning on an exclusionary vison of Polish society.⁹ President Rodrigo Duterte of the Philippines, meanwhile, has flaunted his disdain for the rule of law and human rights as he pursues a campaign of mass violence against drug users and dealers, which has included state sponsorship of extrajudicial killings.¹⁰ In all of these cases, attacks on democratic institutions and norms have been carried out by democratically elected leaders themselves.¹¹

Even in the United States, President Donald Trump is showing signs of authoritarian envy, regularly criticizing the media, the judiciary, and law enforcement, while openly admiring some of the world's most brutal dictators. As Trump said of Kim Jong Un, who rules over a totalitarian dictatorship where people are thrown into labor camps for criticizing the government: "He's the head of the country, and I mean he's the strong head. ... Don't let anyone think anything different. He speaks and his people sit up at attention. I want my people to do the same."¹²

These trends do not mean in any way that democracy is a lost cause or that the global tilt toward illiberalism is irreversible. Demand for democratic change and greater civil and political rights remains a potent force that transcends culture and geography, as recent events in countries as diverse as Burkina Faso, Armenia, and Malaysia illustrate.¹³ But these positive developments do not negate the democratic backsliding that has occurred elsewhere. Across the world, democracy faces an uncertain future.

The United States has not been immune to this democratic malaise. Americans today distrust their government in greater numbers than at any point in modern U.S. history, including the height of the Vietnam War and during the Watergate scandal.¹⁷ Two of the most significant drivers of distrust have been the rise of unfettered special interest spending to distort U.S. politics and the political paralysis that has arisen from the growth of counter-majoritarian practices such as gerrymandering and abuse of the legislative filibuster.¹⁸ These problems have fed a widespread perception that the U.S. political system no longer represents the interests of ordinary Americans nor does it address grave challenges such as inequality, racial injustice, and opioid addiction. Such failures, compounded by foreign policy failures in Iraq and Afghanistan, have contributed to a profound loss of faith in American institutions that Donald Trump effectively channeled in his bid for the presidency.

If Russia has been the boldest challenger, the most serious long-term external threat to democratic governance comes from China. Beijing has been-and will almost certainly remain-an essential partner of the United States in solving major global challenges, from climate change to nonproliferation. But as China amasses power, too often it has put its newfound capabilities and immense resources behind a model of political and economic development and interstate cooperation that neither requires nor encourages liberal democratic values.²² In fact, China's full-throated assertion of narrow national interests in areas such as internet governance, free speech, trade, and human rights often actively undermines democratic values.²³ China has also sought to use economic coercion to undermine U.S. security alliances and partnerships in the Asia-Pacific region and erode cohesion among EU member states.²⁴ Meanwhile, Beijing has used its economic and growing military might to immunize itself from the consequences of flouting long-standing international principles such as freedom of navigation.²⁵ Tragically, these developments coincide with President Trump's abandonment of America's commitments to global leadership, including the Iran nuclear deal, the Paris climate agreement, and the Trans-Pacific Partnership.

Fourth, the institutions, rules, and norms that underpin the liberal international order have not lived up to expectations, providing space for illiberal and undemocratic states to seize the advantage. The global and regional organizations established since World War II were built to protect and encourage liberal values, including universal human rights and rules-based international conduct. But these institutions largely reflect the world of 1945 and have not been adequately updated to recognize the massive shifts in global economic and political power. Today, many of these institutions are losing the capacity to perform their basic missions because of inherent structural flaws, outdated mechanisms, and deliberate efforts by world powers to undermine or circumvent them. The U.N. Security Council is rarely able to meaningfully respond to gross abuses of human rights or even outright aggression.²⁶ The United States and other democracies face growing challenges in upholding international rules or solving big problems such as chemical weapons use in Syria, ethnic cleansing in Myanmar, China's violations of international law in the South China Sea, and Russia's use of gray-zone tactics in Ukraine. The World Trade Organization has likewise struggled to address abuses of its trade rules by states such as China.²⁷ Without more effective and coordinated efforts to push back against these abuses and transgressions, authoritarian governments will continue to probe the boundaries of international rules and norms in ways contrary to both U.S. values and interests.

Fifth, economic globalization has exposed autocratic systems to democratic values, but it has also exposed democratic systems to autocratic influence. As the globalization of the world economy accelerated in the 1990s, experts assumed that integration would result in a more liberal future.²⁸ Authoritarian states, once closed, would be opened up and exposed to the practices and values of liberal democratic states. Gradually, these autocratic states would begin to take on more liberal characteristics, accelerating the trend toward greater democratization. But globalization has proved to be a two-way street. Liberal states have also been exposed to the influence of authoritarian states. Foreign investment from autocratic regimes has served as a vehicle to influence their recipients, most notably in the form of Russian cultivation of political actors across Eastern Europe.²⁹ The corrupt and uncompetitive inducements of autocrats have at times proved a more attractive path than more transparent business and investment practices favored by democracies.³⁰ The immense wealth concentration in autocratic states-and liberal ones as well-has spawned a complex transnational network of illicit finance that has distorted both developed and developing economies.³¹

The answer: A democratic values-based foreign policy

Donald Trump is hardly the only skeptic of a democratic values-based foreign policy. A range of policymakers and scholars of foreign policy, including some progressives, have argued that the United States should de-prioritize the promotion of democratic values in its foreign policy. Some make the argument that the United States needs to take a more hardheaded and transactional approach to advance its security and economic interests. However, this report argues that not only are these false choices but that the United States should see democratic values as a U.S. comparative advantage-and not a weakness-in global competition. America's liberal democratic values have been key to building, enhancing, and sustaining America's geopolitical power. With the global backsliding of democracy and the rise of alternative authoritarian models, it is ever more urgent to rediscover the power of core American values to secure U.S. interests in the long term.

A democratic values-based foreign policy is worth pursuing for three key reasons.

First, it will advance long-term U.S. economic and security interests abroad and create a safer and more prosperous world. Compared with authoritarian regimes, democracies are less likely to go to war against each other, less likely to ally against the United States, less likely to sponsor terrorism, less likely to experience famine or produce refugees, and more likely to adopt market economies and form economic partnerships with other democracies.³⁵ Since liberal democracies tend to share values rooted in rule of law, fair competition, and transparency, they are natural partners in promoting the stable, prosperous, open, and peaceful international environment that the United States ought to cultivate through its foreign policy.

It is true that the process of democratization can be long and uneven and can sometimes produce destabilizing and aggressive state behavior. However, mature and established democracies are more stable, peaceful, and prosperous, and more full-fledged democracies mean more economic and security benefits for the United States.³⁶ Furthermore, the global system of democratic alliances, institutions, and norms the United States helped create and lead after World War II has improved material conditions and brought peace and prosperity to hundreds of millions of people across the world. Bolstering that democratic system and the democratic values that underpin it will ensure that future generations can also enjoy the fruits of democracy and a liberal world.

Second, this kind of foreign policy will help secure an American advantage in great power competition by advancing a compelling alternative and strengthening the global democratic bulwark. Although the challenge posed by illiberal regimes today has evolved since the Cold War, there are still lessons to be drawn from that era. One of the most significant factors in the collapse of the Soviet Union was the powerful example and contrast set by flourishing democratic societies in the United States and Europe. Today, one of America's greatest strategic assets is its global network of democratic allies and partners. The power of that democratic network, even underutilized as it is today, stands in stark contrast to what today's illiberal and authoritarian regimes can offer: namely, political order purchased at the cost of extreme corruption, xenophobia, oligarchy, and arbitrary use of state power. To succeed, any approach to countering the authoritarian playbook must present a compelling alternative. This means that the United States, alongside its democratic allies and partners, must demonstrate that liberal democracy represents the best path to deliver inclusive prosperity, rule of law, and a just and equal society to a country's citizens.

Third, it is the right thing to do. For more than a century, U.S. support for global democracy promotion has rested in part on the sincere conviction that all people deserve to have a say in how they are governed and enjoy the freedoms afforded people in liberal democracies. Although the United States has at many junctures acted in ways that undermined the expansion of democracy and democratic freedoms, that failure does not make democracy promotion any less worthy a goal for U.S. foreign policy. Put simply, there is intrinsic moral value in using the immense influence and capabilities of the United States to empower ordinary people across the globe.

The way forward: A democracy-rebalance agenda for the next administration

To achieve these aims, the United States should implement a "democracy rebalance" designed to defend the existing liberal international order, motivate and empower global democracies to work together, and stem the rising tide of illiberalism. This effort would need to be more than a rhetorical shift. It would require Washington to undertake a strategic prioritization of effort to make protecting and advancing democracy a central pillar of the U.S. national security strategy. This strategic shift should be guided by the following principles:

First, the incentives must be significant. The United States and its democratic allies must generate enough of a pull factor through economic, political, and security benefits to incentivize transitional democracies to continue along the democratic path and to help consolidate democratic gains in both new and established democracies.

Second, there is strength in numbers. When providing incentives-and pushing back against illiberalism-the United States and its democratic partners need to lock arms to maximize effectiveness in an increasingly competitive global environment.

Third, this must be a strategic priority that reorients and draws on all the tools of American statecraft. The focus of U.S. foreign policy often is pulled in various directions, but this democracy rebalance would require vigorous strategic prioritization.

Fourth, democracy should not be spread through use of force. Military force should always be the last resort and only employed to address severe or acute security crises-not to advance a preferred political system. Resilient democratic governance is only possible through patient and sustained commitment to building effective democratic institutions. Military force will never be a substitute for this tried and tested approach.

Fifth, the United States should seek to avoid acting unilaterally. Rather, it should practice humility and seek to work with and learn from countries that have pushed back successfully against the authoritarian playbook.

Sixth, the most powerful force for global democracy will always be the aspirations of ordinary people. While it is natural for policymakers to focus on incentives and pressure points for foreign governments, the most durable and profound democratic change has historically come from grassroots, bottom-up movements. To that end, the United States and its partners should be prepared to support and defend the rights of people around the world to mobilize nonviolently in support of greater civil and political freedoms.

How should the United States define democracy?
This report considers the term democracy to encompass the consent of the governed and basic freedoms such as freedom of speech and assembly, a free press, equality before the law, free and fair elections, checks and balances, and protection of basic human rights as enshrined in the Universal Declaration of Human Rights, among other international agreements and conventions. But assessing which countries qualify as democratic for the purposes of U.S. foreign policy will inevitably require judgment calls. Fortunately, there are already several sets of criteria available for determining the strength of a country's democracy, such as the Polity IV Project index and the V-Dem Institute's Liberal Democracy Index.³⁷ Some of these criteria are already incorporated into how the Millennium Challenge Corporation (MCC), a U.S. foreign aid agency, determines which countries are eligible to receive its assistance. Other U.S. assistance programs may wish to do the same.

Policy recommendations

Revitalizing global democracy is an immense and complex task that will take many years. But in the short term, the threat presented by opportunist authoritarian regimes urgently requires a rapid response. That is why America's democracy rebalance needs both an immediate defensive line of effort to protect democratic values at home and around the world from creeping authoritarianism and a sustained long-term effort to expand the global democratic community and address the drivers of democratic retrenchment.

Strengthen democracy at home

American foreign policy starts at home with the strength of our own democratic model. None of the initiatives proposed in this report is likely to succeed if the United States does not embrace its own democratic values and norms and lead by example. The next administration will need to simultaneously re-establish international credibility and strengthen the democratic compact with its own citizens. For the United States to compete effectively in the global battle of ideas, it must continue to perfect its own democracy and leverage its own comparative strengths: rule of law, strong institutions, the ability to self-correct as a nation, and the innovation and perseverance of the American people. While domestic policy is not the focus of this report, the authors felt it was essential to draw the connection between the health of American democracy and the strategic impact that the United States can drive globally in the context of rising competition.

Restore democratic values and norms

The next administration will need to emphasize its adherence to democratic norms, including reaffirming and embracing the role of a free press, respecting the independence of the judiciary and law enforcement, valuing its civil servants, rejecting racial and religious antagonism, and separating the interests of the public from the private interests of those in power. A series of strong and clear measures in this direction in the early days of the next administration will be a necessary predicate to restoring American credibility abroad.

Build trust in science and facts

With the assault on science and facts by the Trump administration and its allies-removing publicly available information on climate change from government agency websites, for instance, and certain conservative media outlets pushing baseless claims-it will be imperative for the U.S. government to ensure that policy decisions are driven by data and science and that information about policies are communicated objectively and clearly.³⁸

Address drivers of declining public trust

The next administration will need to demonstrate that it can deliver for all Americans and restore the basic compact between the governed and the governing. That means mounting an effective response to entrenched economic inequality, structural racism, gun violence, poor health outcomes, the dominance of special interests, and persistent poverty and the challenges that accompany it, including rising drug addiction. Without confronting these scourges head-on, America cannot effectively advocate for and support liberal democracy abroad.³⁹

Ensure a free and fair democratic process

For the United States to advance democracy abroad, it is essential that its democratic processes serve as a model, not as a cautionary tale. Currently, U.S. democratic processes are plagued by gerrymandering, a campaign finance system that strongly favors wealthy private interests, and weak transparency rules that distort democratic outcomes. The next administration, in conjunction with Congress, must seek to make meaningful headway against these counter-majoritarian practices.

Counter authoritarianism and vigorously defend the democratic community of nations

The United States and its democratic allies are on the front end of a long-term fight to defend their democratic processes as well as their free and open societies from foreign interference and political influence at the hand of authoritarian states. Democracies are not operating on a level playing field: Russia and China have a structural advantage of being closed societies where democratic ideas struggle to compete due to censorship, but neither Russia nor China shy away from engaging in efforts to exploit the open systems of the United States and other democratic countries.⁴⁰ For these reasons, it is essential that the United States design a more coherent, aggressive, and coordinated response to authoritarian encroachment.
To stem the authoritarian tide and defend democratic processes and institutions, democratic governments will also need the tools and knowledge to push back against the favorite tactics of illiberal regimes seeking to weaken and divide democratic societies. The United States should plan accordingly and lead a collaborative multilateral effort to counter the authoritarian playbook. This plan should involve several lines of effort, including:

Insulating democratic processes from outside interference and closing vulnerabilities that authoritarian adversaries exploit, for example: outdated and vulnerable electoral infrastructure, porous campaign finance regimes, cybersecurity vulnerabilities in electoral bodies and political campaigns, and weak regulatory frameworks for addressing false or misleading information online⁴¹

Encouraging digital media platforms, social networks, and data firms-the vast majority of which have lacked effective policies for identifying and deterring malign influence operations-to serve as a force for openness, not a tool to be abused by autocrats

Addressing gaps in the international financial system and domestic laws that enable corruption, money laundering, and illegal campaign finance

Identifying and sanctioning criminal actors that subvert democratic outcomes by advancing the interests of foreign powers in politics, media, and strategically important economic sectors

Modernizing U.S. public diplomacy and increasing support to free and independent international broadcast media to better address and rebut the anti-democratic narratives offered by authoritarian regimes

These efforts will only succeed if executed in tandem with other democracies. Some of these lines of effort are likely to advance quickly, while others will take substantial time and investment.

Build global democratic solidarity

Facing an illiberal challenge to the foundations of democratic society, the United States should endeavor to build a liberal bulwark. The first step in this project would be to catalyze deeper cooperation among democratic states. This will require a multipronged diplomatic effort that strengthens a variety of different multilateral and ad hoc networks of democratic states.

Network security alliances

From Europe to Asia and beyond, the United States has formal alliances with a wide range of democracies that constitute some of the world's most advanced and powerful defense capabilities. The United States should knit together these countries into a broader security architecture to enable better collaboration on regional and global security issues. An increase in security dialogues, technology sharing, and even exercises and interoperability amongst U.S. treaty allies could help bolster the power that democratic countries can project when confronted with global security challenges, from peacekeeping to deterrence to maritime security.

Transform the Community of Democracies into an action-oriented Summit of Democracies

The next administration should seek to transform the existing Community of Democracies (CD) into an annual Summit of Democracies that drives action on key challenges. Currently, the CD is an informal organization that gathers democracies to discuss challenges to democratic governance and to provide technical support to one another on building democratic institutions. Transforming the CD into a more effective institution would require two steps: First, reorient the organization to focus not only on shared threats to democratic societies-corruption, information warfare, and foreign interference in elections-but also shared strategic challenges, such as maritime security and interstate aggression; and second, convene the CD at the head-of-state level annually to endow it with the necessary political and bureaucratic buy-in and follow-through that it currently lacks. Like the idea of a "League of Democracies"⁴² championed in the past by Sen. John McCain (R-AZ), this organization would be action-oriented-not as a replacement for existing international institutions but to provide an additional, exclusive venue through which leaders of new and transitioning democracies could build relationships with each other and their peers in established democracies. As President Barack Obama's nuclear security summits demonstrated, the constructive use of the bully pulpit of an American president can be a potent tool in marshaling complex international action.

Promote informal collaboration among democracies to solve key global challenges

The future of international cooperation on major global challenges is likely to be driven primarily by flexible, ad hoc arrangements of like-minded states. Many of these challenges would benefit from the specific cooperation of democracies, as well as regional organizations that make democracy a defining criteria of membership, such as the Organization of American States, the African Union, NATO, and the European Union. The United States should embrace this format of democratic cooperation and form new groupings, especially to act on challenges where democratic principles make a qualitative difference, such as corruption, development, humanitarian crises, and cybersecurity. Such arrangements can play a crucial role in demonstrating that democracies can act effectively and decisively to effect positive change and address pressing problems.

Upgrade the tools of U.S. statecraft to privilege U.S. policy toward democracies

The historic challenge of U.S. democracy promotion efforts is twofold: First, policies that advance democracy can be easily subordinated to near-term security and economic imperatives, and second, democracy promotion efforts are usually under-resourced and not well integrated into broader national security objectives. In a competitive world where the battle of ideas is becoming more intense and the value of the democratic model more contested, the next administration will need to recalibrate and upgrade the tools of U.S. democratic statecraft with the objective of privileging U.S. relationships with democracies and reversing the global democratic slide.

Elevate democracy as a national security priority

Previous U.S. administrations have treated democracy promotion as a noble aspiration but not a key security interest and have accordingly subordinated it to a range of other foreign policy objectives such as counterterrorism, nonproliferation, and economic relations. Going forward, the United States must treat support for democracies as a strategic priority and seek to integrate it with other national security goals. This would translate into a shift from how the United States has traditionally conducted its foreign policy and deployed its powerful tools of statecraft to a new approach that confers special benefits on democracies. While the United States spends significant assistance on democracies-mostly through the MCC and specific economic and democracy assistance programs run by the U.S. Agency for International Development and the State Department-these efforts are diffuse and do not include coordinated whole-of-government efforts to combine economic assistance with security assistance, trade incentives, and other tools.

Launch a Democratic Strategic Advantage initiative

The next U.S. administration should present a multiyear, multibillion-dollar proposal to Congress to create and fund a Democratic Strategic Advantage initiative-akin to past large-scale U.S. government efforts to fight AIDS worldwide-to help established democracies and emerging democratic states sustain progress and to give them a strategic advantage over authoritarian competitors. This initiative would authorize the U.S. government to amplify and better synchronize U.S. economic and security assistance and commercial investment packages. For example, in addition to increased economic assistance, the United States should coordinate its current tools for security cooperation-from arms sales to military training to technology transfer-to give democracies a strategic edge over authoritarian adversaries.

Increase funding for bipartisan democracy organizations

To amplify impact, the United States should ensure that all tools of democracy promotion abroad are running at full speed and able to operate with maximum effectiveness. Congress should accordingly expand funding for the National Endowment for Democracy, the National Democratic Institute, and the International Republican Institute, all of which invest in and work to strengthen democracy worldwide .

Support and defend democratic voices

Most of the successful democratic transitions of the past two decades-such as those in Serbia (2000), Georgia (2003), Nepal (2006), Tunisia (2011), and Ukraine (2014)-had their origins in grassroots movements advocating for peaceful democratic change. Nonviolent resistance can be a powerful tool in pushing back against democratic backsliding, as recent anti-government protests in Armenia and Slovakia illustrate.⁴³ Yet the United States and its democratic partners do not yet have a strategy for engaging, supporting, and defending the rising number of nonviolent pro-democracy movements around the world, in part because of their diffuse, grassroots nature and in part out of concern that external assistance could undermine the legitimacy of such movements. These are valid concerns, but they should not stand in the way of a deliberate and thoughtful approach to peaceful protest. At a minimum, the United States should seek to work with international partners to strengthen international norms regarding the rights of citizens to mobilize peacefully for greater political and civil rights and engage in nonviolent protest against their respective governments.

A key component of this strategy must include significantly ramping up support for civil society in U.S. government programs and policies. In addition to the measure mentioned above, the United States must also make clear that support for nonviolent democracy movements is not about regime change or picking political winners; it is about supporting the universal rights of people to engage in peaceful political expression. Lastly, the United States should seek to deter and punish states that violently crack down on their own people. The United States should make clear that violent repression will trigger strong U.S. economic sanctions and diplomatic isolation.

Challenges
If the United States is to effectively pursue a democratic-values based foreign policy, it must anticipate and proactively address several obstacles to its implementation.

Challenge no. 1
Many will view a U.S. initiative aimed at strengthening democratic values with skepticism. The selling of the Iraq War as an act of democracy promotion and America's lamentable Cold War history of supporting the overthrow of democratically elected governments fuel suspicion of U.S. foreign policy to this day. For some, the contradictions in America supporting democratic change while working with authoritarian regimes such as that of Saudi Arabia will constitute insurmountable hypocrisy. U.S. shortcomings cannot be papered over but must be considered alongside a larger record of nurturing and protecting democracy in Western and Eastern Europe, the Asia-Pacific region, and elsewhere. The contradictions in U.S. policy are an inevitable byproduct of a pragmatic approach; although they can be mitigated, they cannot be avoided entirely. While the United States must learn from past mistakes and reckon with present contradictions, neither should prohibit a pragmatic pivot toward the protection of democratic values.

Challenge no. 2
The United States cannot-and should not-avoid all cooperation with nondemocratic regimes. National security threats such as climate change, transnational crime, nonproliferation, and terrorism cannot be solved by democracies alone. They require a truly global response. The United States must maintain security, economic, and political cooperation with nondemocratic states, especially China, whose economy and growing influence loom large over the century ahead. America will need nondemocracies to respect and help sustain the global system of rules and norms under which democracies have taken root in every region and to which democratic states appeal for protection against larger authoritarian neighbors. Even as the United States elevates the role of democratic values in its foreign policy, for instance, it should continue to work with countries such as Vietnam to defend freedom of navigation in the South China Sea and Jordan on Middle East peace and security. Concerns over human rights in many cases should not prohibit the United States from engaging in vital cooperation, but nor should that cooperation prevent America from pressing its partners to uphold human rights.

Challenge no. 3
How can America champion democratic values abroad when its own democracy is in trouble at home? Trump is indeed a threat to democracy and has engaged in many of the behaviors-from petty corruption to bullying of law enforcement-that previous U.S. presidents have condemned in other nations. But history teaches us that ideological challenges at home and abroad are in many cases interlinked, and the United States must show it can grapple simultaneously with the need for democratic progress in both the domestic and foreign policy contexts. Today, if American democracy retreats from the global battle of ideas, what fills the void will leave people everywhere less free.
Challenge no. 4
What if America can no longer effectively champion democracy overseas? Democracy is a choice that countries must make for themselves. The United States cannot impose democracy on others, nor should it use military action or subversion to dictate other countries' politics. But the United States can make clear that it actively supports people's universal aspiration to govern themselves and that aspiring democracies will enjoy U.S. political support and can expect the United States to enlist other democratic nations to close ranks and do the same. Of course, as the recent backsliding of Hungary and Poland make clear, even robust inducements are rarely determinative. In such cases, the United States must be willing to coordinate closely with other democracies to impose consequences, including imposing penalties on regressive governments. However, the measure of success of a democratic values-based foreign policy should not be perfection but greater progress than under the alternatives-built on the recognition that what matters most is what people on the ground do to shape their own political realities. U.S. support exists not to dictate an outcome but to tilt the balance where possible to favor local aspirations for democratic rights and freedoms.

Conclusion

For more than 70 years, the United States' ability to do good in the world and secure its international interests has been inseparable from its commitment to democracy at home and abroad. Today, just as democracies around the world face new challenges from without and within, President Trump is chipping away day by day at America's standing as a force for good in the world.

The present age is not the first time that the United States has seen global democracy in retreat or presided over the decline of its own influence. History has proven more than once that the United States is capable of renewing its own democratic compacts while fighting for its values abroad. While America has not always lived up to its ideals, the truth remains that many people around the world still look to American democracy for inspiration and support. This unique role can and must outlast President Trump. America's future security and prosperity will in turn depend in large part on whether the United States can continue to defend and lead the world's democratic community. To prevail over the current illiberal challenge and preserve its place as the world's leading nation, America needs to revive and harness the power of democratic values.

About the authors

Kelly Magsamen is the vice president for National Security and International Policy at the Center for American Progress.

Max Bergmann and Michael Fuchs are senior fellows at the Center.

Trevor Sutton is a fellow at the Center.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.

Kelly Magsamen

Vice President, National Security and International Policy

Michael Fuchs

Senior Fellow

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Securing a Democratic World Introduction and summary Reviving America's strategic position in the world in the wake of President Donald Trump will require a foreign policy that both firmly embraces democratic values and systematically pushes back against authoritarian competitors such as Russia and China.

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What the History of the Word "Insurrection" Says About Jan. 6

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The debate over whether to describe Jan. 6 as an "insurrection" is part of a fraught history over who controls the narrative in the U.S.

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Nat Turner’s slave rebellion - Wikipedia

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rebellion | insurrection |

As nouns the difference between rebellion and insurrection

is that rebellion is (uncountable) armed resistance to an established government or ruler while insurrection is an organized opposition to an authority; a mutiny; a rebellion.

Noun

()

(uncountable) Armed resistance to an established government or ruler.

The government is doing its best to stop rebellion in the country.

(countable) Defiance]] of authority or control; the act of [[rebel, rebelling.

Having a tattoo was Mathilda's personal rebellion against her parents.

(countable) An organized, forceful subversion of the law of the land in an attempt to replace it with another form of government.

The army general led a successful rebellion and became president of the country.

Antonyms

*( defiance of authority or control) obedience, submission

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Rebellion vs Insurrection - What's the difference?

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rebellion | insurrection | is that rebellion is (uncountable) armed resistance to an established government or ruler while insurrection is an organized opposition to an authority; a mutiny; a rebellion. () (uncountable) Armed resistance to an established government or ruler. The government is doing its best to stop rebellion in the country.

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In order to prevent tyranny and provide balance, each branch of government must have distinct and competing powers and responsibilities.

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Federalist 51- how to organize government sep. powers

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Federalist 51- how to organize government sep. powers

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In order to prevent tyranny and provide balance, each branch of government must have distinct and competing powers and responsibilities.

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Federalist 51- how to organize government sep. powers

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Federalist 51- how to organize government sep. powers

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In order to prevent tyranny and provide balance, each branch of government must have distinct and competing powers and responsibilities.

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Federalist 51 with historical introduction

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Federalist 51 with historical introduction

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In order to prevent tyranny and provide balance, each branch of government must have distinct and competing powers and responsibilities.

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WWII US govt turns away thousands of Jewish refugees

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WWII US govt turns away thousands of Jewish refugees

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The U.S. Government Turned Away Thousands of Jewish Refugees, Fearing That They Were Nazi Spies

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In a long tradition of “persecuting the refugee,” the State Department and FDR claimed that Jewish immigrants could threaten national security

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Don't Give Us Your Tired, Your Poor, Your Huddled Masses

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America, built up by the hard work of its immigrants, now finds itself home to an estimated 11 million illegal immigrants. The federal government, even under the reform-friendly tenure of President Ge

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"Today's decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system," he said before heading to the West Coast for a two-day trip. "It is heartbreaking for the millions of immigrants who have made their lives here."

The decision was one of two determined by tie votes Thursday - the other concerned Indian tribal courts - and one of four so far this term. The court is scheduled to issue its final three decisions of the term, including one on a restrictive Texas abortion law, on Monday.

Mr. Obama said the court's immigration ruling was a stark reminder of the consequences of Republicans' refusal to consider Judge Merrick B. Garland, the president's nominee to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia.

"If you keep on blocking judges from getting on the bench, then courts can't issue decisions," Mr. Obama said. "And what that means is then you are going to have the status quo frozen, and we are not able to make progress on some very important issues."

The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Mr. Obama has said he took the action after years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. A coalition of 26 states, led by Texas, promptly challenged the plan, accusing the president of ignoring administrative procedures for changing rules and of abusing the power of his office by circumventing Congress.

"Today's decision keeps in place what we have maintained from the very start: One person, even a president, cannot unilaterally change the law," Ken Paxton, the Texas attorney general, said in a statement after the ruling. "This is a major setback to President Obama's attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law."

The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court's four-member liberal wing to save the program.

The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver's licenses to immigrants affected by the federal policy.

Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.

Mr. Obama said the White House did not believe the terse ruling from the court had any effect on the president's authority to act unilaterally. But he said the practical effect would be to freeze his efforts on behalf of immigrants until after the November election.

He also predicted that lawmakers would eventually act to overhaul the nation's immigration system.

"Congress is not going to be able to ignore America forever," he said. "It's not a matter of if; it's a matter of when. We get these spasms of politics around immigration and fear-mongering, and then our traditions and our history and our better impulses kick in."

White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation's immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.

But the court's ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation's immigration laws. And it left immigration activists deeply disappointed.

"This is personal," Rocio Saenz, the executive vice president of the Service Employees International Union, said in a statement. "We will remain at the front lines, committed to defending the immigration initiatives and paving the path to lasting immigration reform."

The lower court rulings in the case were provisional, and the litigation will now continue and may again reach the Supreme Court when it is back at full strength. In the meantime, it seems unlikely that the program will be revived.

In February 2015, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program while the legal case proceeded. The government appealed, and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans affirmed the injunction.

In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that "the executive does have enforcement discretion to forbear from removing aliens on an individual basis." Their quarrel, they said, was with what they called a blanket grant of "lawful presence" to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that this "lawful presence" was merely what had always followed from the executive branch's decision not to deport someone for a given period of time.

"Deferred action does not provide these individuals with any lawful status under the immigration laws," he said. "But it provides some measure of dignity and decent treatment."

"It recognizes the damage that would be wreaked by tearing apart families," Mr. Verrilli added, "and it allows individuals to leave the shadow economy and work on the books to provide for their families, thereby reducing exploitation and distortion in our labor markets."

The states said they had suffered the sort of direct and concrete injury that gave them standing to sue.

Judge Jerry E. Smith, writing for the majority in the appeals court, focused on an injury said to have been suffered by Texas, which he said would have to spend millions of dollars to provide driver's licenses to immigrants as a consequence of the federal program.

Mr. Verrilli told the justices that Texas' injury was self-inflicted, a product of its decision to offer driver's licenses for less than they cost to produce and to tie eligibility for them to federal standards.

Texas responded that being required to change its laws was itself the sort of harm that conferred standing. "Such a forced change in Texas law would impair Texas' sovereign interest in 'the power to create and enforce a legal code,'" the state's lawyers wrote in a brief.

Judge Hanen grounded his injunction on the Obama administration's failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program gave blanket relief to entire categories of people, notwithstanding the administration's assertion that it required case-by-case determinations about who was eligible for the program.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama's statutory authority.

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Supreme Court Tie Blocks Obama Immigration Plan

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"Today's decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system," he said before heading to the West Coast for a two-day trip. "It is heartbreaking for the millions of immigrants who have made their lives here."

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A father holds his daughter after crossing the southern border in Eagle Pass, Texas, October 2022. (Getty/Allison Dinner/AFP)

Without understanding and addressing the key drivers of migration in the region ... the U.S. goal of a safe, secure, humane immigration operation at the border will remain elusive.

All of this is occurring alongside a dramatic increase in irregular migration not only to the United States but throughout the entire region. In response, individual countries have implemented strategies designed to ensure fair, orderly, and humane systems for managing migration. Yet these strategies require long-term investment to stabilize countries in the region and deserve greater support from Congress to make them sustainable.

This issue brief sheds light on the policies and practices that the United States and other countries in the region have initiated to manage migration and respond to the many humanitarian crises of the region. Moreover, it urges Congress to support the administration's efforts to help countries in the region implement effective programs to manage migration, extend humanitarian relief, and address the causes of forced migration.

New drivers of migration in the Western Hemisphere require innovative strategies

Violence, political instability, food insecurity, extreme weather, and severe economic hardships related to COVID-19 have changed the landscape of migration in the Western Hemisphere. Data from the U.N. High Commissioner for Refugees (UNHCR) show that many countries in the Americas-not only the United States-are seeing a rise in the number of people seeking asylum, with countries that have not seen many asylum-seekers in the past becoming hosts to large numbers of people seeking protection.

For example, in these past few years, the Dominican Republic, Panama, Ecuador, and Chile-which have historically received modest numbers of vulnerable people-have hosted hundreds of thousands more people, mostly displaced Venezuelans. From 2018 to 2021, Colombia, Mexico, Costa Rica, and Peru have received higher numbers of asylum applications than in the past, with increases ranging from 133 percent to 914 percent.
Figure 1
Moreover, countries with much smaller populations than the United States are assuming responsibility for large numbers of forcibly displaced people. For example, in 2021, Costa Rica and Peru received nearly 300 and 160 asylum applications, respectively, for every 10,000 people in their country, compared with only 39 asylum applications per 10,000 people in the United States.
Figure 2
This complex mix of factors is pushing people to flee their homes and take dangerous journeys-for example, through the treacherous Darién Gap between South America and Central America-to find safety and stability elsewhere.

The Biden-Harris administration's comprehensive plan to manage regional migration is a stark departure from the previous administration's approach

And earlier this year, the administration published an update to its plan to address the root causes of migration. A few highlights are outlined below:

The vice president's office has collaborated with a range of companies in the private sector to secure commitments for private sector investments in the region to create jobs and opportunities. For example, Microsoft is on track to help to connect 4 million people in the region to broadband by 2024.

The U.S. Agency for International Development (USAID) supported private sector companies in El Salvador, Guatemala, and Honduras to help them create more than 70,000 jobs, providing small and microbusinesses access to loans.

The United States, in partnership with COVAX, has delivered more than 15 million COVID-19 free-of-cost vaccine doses to countries in northern Central America and provided additional support to fight COVID-19.

If policymakers are serious about achieving substantive change in the region to help mitigate irregular migration, they should support these proposals and funding requests that directly tackle the root causes of migration. While the full impact of these strategies may not be felt until further down the road, policymakers should understand the importance of investing in tackling the root causes of migration now in order to promote long-term stability and security in the region.

Read more on migration in the Americas

Regional coordination is key to changing migratory patterns

In comparison, the United States has generally been reluctant to lead a regional approach on migration management and policies. Yet the Biden-Harris administration, for its part, has demonstrated a willingness to engage with other countries in the region to design long-term, durable solutions to an enormous regional challenge.

The LA Declaration: A big step in the right direction

The LA Declaration has four key pillars:

1. Stability and assistance for communities

2. Expansion of legal pathways for protection

3. Humane border management policies

4. Coordinated emergency response

The LA Declaration promises targeted funding to support efforts in other countries; however, it is up to Congress to make these promises a reality by ensuring that these programs are fully funded.

It is also important to keep in mind that while foreign assistance in these countries can contribute to reducing emigration, studies have found that the effects of foreign assistance on migration can be limited without other necessary proactive measures. Traditional foreign aid to migrant-sending countries alone will not solve the migration crisis in the region. Hence, other aspects of the LA Declaration-such as providing legal pathways to migration and providing programmatic assistance to host countries with a large number of refugees in the region-are crucial.

Countries in the Western Hemisphere have implemented bold measures, but they need help to sustain those efforts

Countries across the region have taken innovative steps to protect asylum-seekers and improve their capacity to respond to the unprecedented number of vulnerable migrants at their borders. In particular, the following countries have expanded protections, provided temporary permits, increased access to medical benefits, and increased access to job opportunities.

Colombia

As the United States seeks to strengthen its own humanitarian system, it can both support and learn from other host countries striving to build sustainable institutions.

Costa Rica

Another example is Costa Rica-a nation that is traditionally a top immigrant destination in Latin America. In recent decades, the profiles of migrants arriving in Costa Rica have diversified and changed: Some are fleeing their home countries and seeking asylum, some are looking to invest, some intend to settle there permanently, and others are either seasonal or transiting up north.

Costa Rica has one of the most robust and established institutional and legal frameworks in the region, with agencies tasked with clear responsibilities to manage and support migrants and asylum-seekers. For example, even though Costa Rican law has not incorporated the Cartagena Declaration, which protects a wider category of people beyond the UNHCR definition of a "refugee," the country's Administrative Tribunal of Immigration decided that it should be considered while providing protection for vulnerable migrants. Notably, during the COVID-19 pandemic, Costa Rica kept its borders open for those seeking protection, but the recent increases in asylum-seekers-largely from Nicaragua-have strained this generosity. In an effort to increase access to the health care system and job market, Costa Rica announced its plans to regularize more than 200,000 migrants and has sought international support.

Even in the face of welcoming policies, immigrants in Costa Rica, especially Nicaraguans, have increasingly experienced discrimination and exclusion.

Peru, Chile, and Uruguay

Other countries in the region have also implemented longer-term measures and effective programs to improve the integration of migrants and asylum-seekers in their host communities. For instance, Peru has received more than 1 million Venezuelans and introduced a temporary protection permit that made the regularization of foreigners possible. A local municipality in Chile announced a policy to integrate migrants and refugees to increase access to basic services. Similarly, Uruguay passed legislation to grant migrants and their family members access to the same rights and benefits as nationals-work, social security, access to health care, and education.

As the United States seeks to strengthen its own humanitarian system, it can both support and learn from other host countries striving to build sustainable institutions, helping guide their individual responses through the collaborative set of guidelines laid out in the LA Declaration and ensuring that all countries in the region are accountable to their commitments and contributing to a shared solution.

Read more on addressing the causes of migration

Conclusion

As anti-immigrant rhetoric continues to dominate headlines in the lead-up to the midterm elections, the Biden-Harris administration has taken significant steps to humanely manage migration flows in the region, marking a stark policy shift from the previous administration's unsuccessful deterrence-only Band-Aid approach. Indeed, within its first two years in office, the administration has crafted a strategy to address the root causes compelling people to leave their home countries to make the treacherous journey northward to the United States' southwestern border. Specifically, by prioritizing the LA Declaration, the United States has recognized that a hemispheric approach to migration management, beyond bilateral or unilateral actions, is necessary. Now, Congress should support the administration in its efforts to work with other countries in the region to humanely manage migration, address root causes of migration in sending countries, and dismantle human smuggling networks.

Acknowledgments

The authors are grateful to Debu Gandhi, Nicole Prchal Svajlenka, Nicole Lee Ndumele, Elisa Massimino, Joel Martinez, Laura Kilbury, Erin Simpson, and Adam Conner for their expertise.

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Taking Migration Seriously: Real Solutions to Complex Challenges at the Border

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Without understanding and addressing the key drivers of migration in the region ... the U.S. goal of a safe, secure, humane immigration operation at the border will remain elusive. All of this is occurring alongside a dramatic increase in irregular migration not only to the United States but throughout the entire region.

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14th Amendment and interpreting privileges and immunities

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14th Amendment and interpreting privileges and immunities

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After the Civil War, free blacks and former Union soldiers faced serious danger from Southern state governments that stripped them of economic liberty and their right to bear arms, leaving them vulnerable to virtual enslavement and hate-motivated crime. The Privileges or Immunities clause of the Fourteenth Amendment, ratified in 1868, was written to address these abuses by ensuring that rights guaranteed in the federal constitution are protected against the states. Seven years after ratification, however, the amendment's Privileges or Immunities clause was practically nullified by the Slaughter-House decision. Today, that judicial error continues to take its toll on important freedoms like economic liberty: unenumerated rights that are left vulnerable to government abuse without the protection of the Privileges or Immunities clause.

Economic liberty is one of the pillars of constitutional freedom defended by the Institute for Justice. A new case going before the Supreme Court, McDonald v. City of Chicago, provides a unique opportunity to restore the Privileges or Immunities clause to its full meaning. The Institute for Justice has filed two briefs in this case to support the reconstitution of this important protection from government intrusion on economic liberty and the right to bear arms.

Collected below are primary sources and scholarly publications on the history of the Privileges or Immunities clause, its sudden death, and potential revival.

The Constitution, Slavery and Reconstruction
Slaughter-House and Civil Rights
Substantive Due Process and the Second Amendment
Privileges or Immunities and Economic Liberty
The Constitution, Slavery and Reconstruction
These sources depict the conflict between state and federal power before the Civil War, and the renewed debate during Reconstruction, as former Confederate states violated rights protected in the federal constitution by codifying the persecution of freed blacks and former Union soldiers.

Case Law

Statutory Law

Freedmen's Bureau Act (1865)
Civil Rights Act of 1866

Other Sources

Congressional Debates:
John Bingham, February 11, 1859 (PDF)
John Bingham, February 28, 1866 (PDF)
Frederick Woodbridge, February 29, 1866 (PDF)
John Bingham, May 10, 1866 (PDF)
Jacob Howard, May 23, 1866 (PDF)

Lysander Spooner, The Unconstitutionality of Slavery (1845, 1860)

Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (1849)

Lysander Spooner, No Treason (1867-1870)

Christopher Tiedeman, The Unwritten Constitution of the United States (1890)

Richard Aynes, " On Misreading John Bingham and the Fourteenth Amendment " (1993)

David T. Hardy, " Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68 " (2009)
Slaughter-House and Civil Rights
The 1872 Slaughter-House decision effectively nullified the Privileges or Immunities clause by narrowing the definion of the federal rights it protects to a few specific privileges like access to national waterways. This stripped the clause of its vital original function, the protection of all federal rights - enumerated and unenumerated - against the states. In rendering Privileges or Immunities an "inkblot," the Slaughter-House decision opened the door for Jim Crow, and began a 100-year process of recovering lost rights that is still incomplete.

Case Law

Other Sources

Richard Aynes, " Constricting the Law of Freedom," a recent examination of Slaughter-House (1994)
Substantive Due Process and the Second Amendment
The doctrine of "substantive due process" has been used to replicate the function of the Privileges or Immunities clause by "incorporating" federal rights against the states through individual cases. The right to bear arms is one of the few Bill of Rights privileges still unincorporated. Heller v. District of Columbia established that the Second Amendment protects an individual right to bear arms, and the upcoming McDonald v. City of Chicago will incorporate that right against the states. However, it remains to be determined how that right will be incorporated - creating the unique opportunity to argue Privileges or Immunities back into the book.

Case Law

Institute for Justice Amicus Briefs for McDonald

Chicago Gun Ban Certiorari Brief
Chicago Gun Ban Merits Brief

Scholarship by IJ Attorneys

Audio: IJ Senior Attorney Clark M. Neily III debates Loyola Law School professor Kurt Lash on the Second Amendment for the Federalist Society's SCOTUScast (2009)

Clark M. Neily III and Robert J. McNamara, " Getting Beyond Guns: Context for the Coming Debate over Privileges or Immunities" (2009); condensed and reprinted by the Federalist Society here.

Clark M. Neily III, " The Right to Keep and Bear Arms in the States: Ambiguity, False Modesty, and (Maybe) Another Win for Originalism " (2009)

Other Sources

Kimberly C. Shankman & Roger Pillon, " Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government " (1998)

Michael Lawrence, " Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses " (2006)

Josh Blackman and Ilya Shapiro, " Keeping Pandora's Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States " (2009)
Privileges or Immunities and Economic Liberty
The Privileges or Immunities clause was originally designed to address government persecution of disfavored groups. The goverment oppressed these groups by depriving them of their right to bear arms and their economic liberty. That's why the Privileges or Immunities clause is a much stronger protection against the states than piecemeal "incorporation" of rights - "Privileges or Immunities" protects even unenumerated rights like economic liberty, the deprivation of which has been proven as a tool of tyrannical governments.

Federalist No. 11 describes the role of economic liberty in a free society(1787)

The Institute for Justice's economic liberty cases incorporate a strong effort to overturn Slaughter-House 's incorrect interpretation of the Privileges or Immunities clause. The cases below include Privileges-or-Immunities arguments in IJ's defense of the right to earn an honest living.
Institute for Justice cases:
Florida Interior Design
Massachusetts Nautical Tours
Maryland Funeral Homes
Minnesota Hairbraiding
Mississippi Hairbraiding
Washington (state) Hairbraiding
Arizona Hairbraiding
Louisiana Florists
Oklahoma Caskets
Tennessee Caskets
Ohio Hairbraiding
California Hairbraiding
New York Vans
Washington, DC Hairbraiding

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Privileges or Immunities: Academic Resources - Institute for Justice

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After the Civil War, free blacks and former Union soldiers faced serious danger from Southern state governments that stripped them of economic liberty and their right to bear arms, leaving them vulnerable to virtual enslavement and hate-motivated crime.

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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.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

In 1865, after the defeat of the Confederacy, the former Confederate States formed new state governments through which they hoped to restore their relations with the Union. Although slavery was abolished, the new governments retained racially restrictive voting rules and restricted the freed slaves in many of the rights of ordinary life, like those related to property and contract. Other fundamental freedoms, like the rights to speak freely and worship freely, were also widely restricted by postbellum Confederate States, much as they had been restricted by these states prior to the Civil War in cases involving whites as well as free blacks. In December of 1865, Senators and Representatives came to Washington from those States to take their seats. The Republicans who controlled Congress refused to seat members from the former Confederate States, and formed a Joint Committee on Reconstruction to address the status of those states in the Union. In the spring of 1866, the Joint Committee proposed a constitutional amendment that included a number of separate provisions. After modification on the floor of the House and Senate, that amendment was proposed by Congress in the summer of 1866 and ratified as the Fourteenth Amendment in 1868.

The Privileges or Immunities Clause of the Fourteenth Amendment was part of the amendment proposed by the Joint Committee on Reconstruction. The reference to privileges and immunities of citizens uses the words of the provision in Article IV of the Constitution providing that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The relationship between the two clauses is one of many subjects of debate, in part because the meaning of the provision in Article IV was itself a subject of dispute when the Fourteenth Amendment was drafted. Although other provisions in the joint committee's proposal were amended in the House and Senate, the Privileges or Immunities Clause emerged from Congress as proposed by the joint committee. In the congressional debates, the Clause was regarded as an important part of Section 1 of the Amendment, but debate focused mainly on Sections 2 and 3, which dealt with issues of political power.

According to the Supreme Court's cases, the privileges and immunities that no state shall abridge include only a limited number of legal protections related to distinctively national citizenship as opposed to state citizenship. In the Court's view, the basic legal rights of the private law, like property, contract, and family relations, are not associated with citizenship of the United States as such. Rather, those rights are associated with state citizenship. Nor, according to the Court, do the rights of national citizenship include the protections of the first eight amendments insofar as those limitations might apply against the States as opposed to the United States. Although the Court has found that the Fourteenth Amendment does apply most of those limitations to the States, in its view that result is not accomplished by the Privileges or Immunities Clause. However, in various concurring and dissenting opinions, several members of the Court over the years have emphasized the importance of the Privileges or Immunities Clause as one key ingredient or the key ingredient in applying against state and local governments various rights mentioned in the Bill of Rights, such as the rights to speak and worship freely. The Court has found some rights of national citizenship under the Clause, like the right to travel from state to state and establish residency in a new state.

Ever since the Fourteenth Amendment's enactment, lawyers, judges, and commentators have argued that the Clause means more than that. One debate is whether the privileges and immunities of citizenship of the United States include the protections of the Bill of Rights-especially rights of speech, press, and religion-as applied against the States. Another concerns the Clause's application to basic private rights, like contract and property, that were important elements of the set of rights known as "civil rights" in the nineteenth century. Those who believe that the Clause imposes some restrictions on the states regarding civil rights generally take one of two approaches. According to one view, often called substantive, the Clause mandates that citizens enjoy certain legal advantages, like the right to contract. Proponents of this interpretation often say that the states may regulate privileges and immunities but not take them away and so must regulate them reasonably. According to the other view, the Clause requires equality or non-discrimination. On this interpretation, to abridge one citizens' private-law privilege or immunities is to limit those rights relative to those of other citizens. As long as all citizens have the same property rights, for example, it does not matter what those rights are. The central historical example of an unequal law from the framing of the Fourteenth Amendment is a Black Code, the kind of racially discriminatory restriction of the private rights of freed slaves enacted in many ex-Confederate states immediately after the Civil War.

If the equality-based reading of private-law rights is correct, the Privileges or Immunities Clause performs much of the anti-discrimination function that is largely attributed to the Equal Protection Clause in the Supreme Court's doctrine and the accompanying account of history. Similarly, if the Privileges or Immunities Clause is in fact the true basis for applying most of the Bill of Rights provisions against state and local governments, the Clause performs much of the fundamental-rights function that is largely attributed to the Due Process Clause in Supreme Court caselaw.

The Privileges or Immunities Clause of the Fourteenth Amendment operates with respect to the civil rights associated with both state and national citizenship. The Clause refers to the privileges and immunities of citizens of the United States, and Section 1 of the Amendment also makes citizens of the United States citizens of the state wherein they reside, thus ensuring that the individuals who are citizens of the United States will also be citizens of a state if they live in one. Privileges and immunities of citizens are civil rights as understood in nineteenth-century legal classifications. They are the basic rights of ordinary life, especially owning property, making contracts, and forming domestic relations, but do not include either political rights like voting, or special legal benefits like franchises granted by the government to private people primarily to advance the public interest. (Classifying many twenty-first century government benefits as between civil rights and special privileges often presents difficult questions concerning the application of an old legal concept to new circumstances.)

With respect to the civil rights of state citizenship, the Clause provides for universal equality. It can be paraphrased as "all citizens shall have the same civil rights." Because it is an equality rule, the Clause does not dictate or constrain the content of civil rights recognized by state law. It requires that whatever those rights are, all citizens shall have them alike. Its drafters believed that such a rule of universal equality would forbid race discrimination with respect to civil rights. They thought that the post-Civil War Black Codes enacted by the former Confederate States, which limited the civil rights of freed slaves, abridged the freed slaves' civil rights by limiting them relative to those enjoyed by white citizens. Just how requirements of general equality entail limitations on the classifications drawn by legal rules, like classifications based on race, sex, and age, is one of the most difficult questions left to us by the drafters of the Fourteenth Amendment. They deliberately formulated their principle in terms that did not refer specifically to race, and so posed for themselves and their successors a hard problem.

Because it refers to citizens of the United States, the Clause also operates as to the privileges and immunities of national citizenship. In general, legal protections associated with national citizenship are immune from limitation by state law because of the supremacy of federal law under Article VI of the Constitution. With respect to the privileges and immunities of national citizenship that limited the states before the Fourteenth Amendment was adopted, the effect of the Clause is indirect but important. Although the states were bound to respect the rights of national citizenship before the Amendment was adopted, the power of Congress to adopt legislation affirmatively protecting those rights was a matter of considerable controversy. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce the Amendment, including the Privileges or Immunities Clause. Congress now has authority to create protections for rights of national citizenship that it may previously have lacked.

Determining the content of the privileges and immunities of national citizenship that pre-dated the Fourteenth Amendment requires looking to sources of law other than the Amendment, which refers to but does not itself create those privileges and immunities. Some federal statutes create civil rights and hence rights of national citizenship. The patent statutes do so, because they provide for intellectual property and property is a civil right. The Clause does not, however, expand the legislative authority of Congress beyond what is enumerated elsewhere in the Constitution. It does not give Congress authority to legislate as to property and contract generally, for example. Rights of property and contract are civil rights, but they are associated mainly with state and not national citizenship because power over them is generally left with the states and not granted to Congress. Whether the existence of the national government and the relationship between that government and citizens of the United States produces some rights of national citizenship is a difficult question. The Supreme Court has stated that there are implicit rights of national citizenship, such as coming to the national capital to transact business with the federal government. Whether that is so depends on the content of national citizenship, a category referred to but not created by the Fourteenth Amendment.

Many supporters of the Fourteenth Amendment in Congress and the states believed that the Privileges or Immunities Clause would impose on the states some or all of the limitations imposed on the federal government by the first eight amendments. They believed, in today's parlance, that the Clause wholly or partially incorporated the Bill of Rights as against the states. Whether it did so is a difficult question. That it would do so was indeed widely believed. That conclusion is not easy to derive from the text, however, because it requires that there be rights of national citizenship that, but for the Clause, would not limit the states. Squaring that assumption with the Supremacy Clause is possible, but requires some careful parsing of the text and the concepts it uses.

Ask any American for a list of the most important Supreme Court cases of the last century, and certain canonical names are sure to follow: Gideon v. Wainwright (1963), ensuring a right to counsel; Engel v. Vitale (1962), ending official prayer in public schools; Miranda v. Arizona (1966), protecting the rights of the accused; New York Times v. Sullivan (1964), affirming America's commitment to robust free speech rights. For most Americans, these cases represent the core of our Constitution and, in particular, the power of the key protections enshrined in our Bill of Rights. However, strictly speaking, these cases are not Bill of Rights cases.

As originally written and ratified, the Bill of Rights protected against abuses by the federal government, not-as was the case in each of the canonical decisions listed above-against abuses by state and local governments. The federal Constitution today reaches these cases because of an amendment ratified nearly a century after the Founding-the Fourteenth Amendment-and authored by an important generation of constitutional innovators forgotten by too many Americans, the Reconstruction Republicans.

Today, the Fourteenth Amendment is one of the most powerful provisions in the U.S. Constitution. The Supreme Court has read it to protect a variety of rights against state abuses-both substantive rights (like religious liberty) and procedural rights (like the right to a jury trial); those explicitly written in the Constitution (like those in the Bill of Rights) and those that are not (like the right to privacy); those that apply in the political realm (like the right to vote) and those that have nothing to do with voting (like the rights of minors). Can a single sentence in a constitutional amendment ratified nearly a century after the Founding really justify this robust body of case law?
The Fourteenth Amendment and the Bill of Rights
Let's begin with the Bill of Rights. The Supreme Court began to apply key Bill of Rights protections against state abuses in the late nineteenth century. Was this move consistent with the Fourteenth Amendment's text and history?

As written by Ohio Congressman John Bingham, a crucial clause of the Fourteenth Amendment reads, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In the nineteenth century (just as today), these "privileges" and "immunities" included key Bill of Rights protections like free speech. Even the infamous Dred Scott v. Sandford (1857) decision-the most widely read Supreme Court decision of its day- recognized as much, referring to the Bill of Rights as "rights and privileges of citizens" and specific protections like the "liberty of speech" and the right to "keep and carry arms" as "privileges and immunities of citizens." Bingham's Privileges or Immunities Clause simply declared that in post-Civil War America, states would no longer be permitted to abuse these fundamental rights-as they so often had in the pre-Civil War and Reconstruction-era South. The centrality of these rights, especially the rights of robust political expression, to the Reconstruction generation is obvious in the political slogan that helped launch the Republican Party-the driving force of the Fourteenth Amendment. In its very first presidential campaign, in 1856, the Republican Party nominated John C. Fremont and explained to all America just what the party stood for: "Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont."

The Clause's history confirms this reading. When explaining his Amendment, Bingham consistently tied the Privileges or Immunities Clause to the individual protections enshrined in the Bill of Rights. And other key Reconstruction leaders-like the Amendment's spokesperson in the U.S. Senate, Michigan Senator Jacob Howard-followed suit.

To be sure, not every protection listed in the original Bill of Rights was a "privilege" of individual "citizens." Instead, some were key states' rights protections. For instance, at its core, the First Amendment's Establishment Clause was originally designed in part to protect a state's authority to set its own church establishment policy without interference from the federal government. Following the ratification of the Fourteenth Amendment, it made little sense to apply this particular structural right against the states. Therefore, when deciding which Bill of Rights protections count as "privileges" and "immunities" for purposes of the Fourteenth Amendment, interpreters must analyze each amendment and separate out its individual-rights aspects ( e.g., an individual's right to free speech) from its states'-rights aspects ( e.g., a state's right to set its own church establishment policy).

Finally, the Civil War and Reconstruction transformed the core meaning of certain key Bill of Rights protections. Take the Second Amendment, for instance. At the Founding, this Amendment protected the collective right to bear arms in a well-regulated militia for purposes of protecting the American people against centralized tyranny. However, by the time "We the People" ratified the Fourteenth Amendment, the Civil War-a war won by a strong federal army over rebellious states-shattered this original vision. Rather than requiring a gun for purposes of mustering as part of one's local militia, Reconstruction-era families-particularly, African-American families and white Unionists in the South-needed guns in their homes to protect themselves and their families from local violence by white vigilantes. In the process, the Second Amendment's core meaning shifted from a collective right addressing the threat of federal government oppression to an individual right-an individual "privilege" of American citizenship-targeting state and local abuses.
Beyond the Bill of Rights
While certain key Bill of Rights provisions represent core "privileges" and "immunities" protected by the Fourteenth Amendment, these capacious words cover other fundamental rights, as well. For instance, they protect certain rights enshrined in other parts of the Constitution, such as the "privilege" of habeas corpus protected against the federal government in Article I, Section 9. While this "privilege" isn't in the Bill of Rights, it is a fundamental "privilege" of individuals protected by the Fourteenth Amendment.

The Fourteenth Amendment also protects certain "privileges" and "immunities" that are not explicitly listed in the Constitution (like the right to privacy). Indeed, the Fourteenth Amendment's very text invites interpreters to search for all rights recognized by Americans as fundamental, from those enshrined in state constitutions to those contained in canonical texts (like the Declaration of Independence) to those protected by landmark civil rights laws (like the Civil Rights Act of 1866) to those affirmed by the lived experiences of ordinary Americans and the everyday practices of their governments. For judges, this means reaching beyond the judges' own individual preferences and searching for the fundamental rights actually recognized by the American people.

Finally, while the Fourteenth Amendment applies to a broad range of civil rights, it does not apply to political rights like voting, jury service, militia service, and office-holding. When drafting the Fourteenth Amendment, the Framers borrowed key language from Article IV of the Constitution, which also spoke of "Privileges" and "Immunities" of "Citizens." At its core, Article IV secures interstate equality of citizenship. Under Article IV, a state like Georgia must grant a traveling New Yorker the same civil rights as its native Georgians. Even so, Georgia does not have to allow the visiting New Yorker to vote in its elections or serve on its juries. The same is true of the Fourteenth Amendment. Importantly, this reading is confirmed by the Fourteenth Amendment's history, as Reconstruction leaders consistently emphasized that their proposed Amendment would not reach voting rights. Simply put, Northerners in 1868 were not yet ready for nationally guaranteed African American suffrage.

Of course, the later Fifteenth Amendment did directly address and prohibit race-discriminatory voting laws; much as other later Amendments banned other voting exclusions, such as the Nineteenth Amendment's prohibition of sex-discriminatory voting laws and the Twenty-Sixth Amendment's ban on certain age-discriminatory voting laws. In the mid-1860s, two other constitutional clauses were also central to the debate about voting rights. First, many Reconstruction Republicans embraced a broad reading of the original Constitution's Article IV Guarantee Clause, otherwise known as the Republican Government Clause. Second, the second section of the Fourteenth Amendment did explicitly address voting rights issues left untouched by the Amendment's opening section. Indeed, the Section 2 of the Fourteenth Amendment introduced the words "the right to vote" into the Constitution for the first time-a phrase that today appears no less than five times in the document as amended and re-amended over the centuries.
The Document and the Doctrine: A Word of Caution
In the end, despite the strong textual, structural, and historical evidence supporting a robust reading of the Privileges or Immunities Clause, the Supreme Court gutted this key provision shortly after the Fourteenth Amendment's ratification-in the 1873 Slaughter-House Cases. The Court then waited decades before beginning to protect Americans against state violations of various fundamental rights, first in 1897 in a case involving the right to just compensation and then in a string of cases in the twentieth century involving core individual freedoms, including free speech, religious liberty, the rights of the accused, and the right to privacy. However, even then, the justices didn't use the clean text of the Privileges or Immunities Clause to make this move, instead relying on the Fourteenth Amendment's Due Process Clause. While this text fit nicely with procedural protections like the right to a jury, it was a peculiar fit with key substantive freedoms like the right to free speech.

Bingham and his fellow Fourteenth Amendment Framers deserve better. Through the Fourteenth Amendment (and its Privileges or Immunities Clause), they envisioned a new America, one in which Americans were finally protected from state violations of their most cherished rights. By refusing to admit error, the Supreme Court divorced one of its most important constitutional achievements-protecting key freedoms against state abuses-from the Constitution's text and history. As is often the case, the Constitution itself is more inspiring-and sensible-than the Supreme Court's handiwork.

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SECTION. 1. 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.

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Senate Advances Historic Bill to Protect Same-Sex Marriage

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The Senate cleared a major procedural hurdle to pass a bill protecting same-sex and interracial marriage.