1AC – 13th [Grapevine]

1AC – 13th
Modern-day policing is a badge and incident of slavery that must be stopped. The
murder of Breonna Taylor parallels the forceful entering of homes by slave patrols, the
calling of cops on Christian Cooper builds on the myth of Black criminality, and convict
leasing has morphed into penal labor.
Hasbrouck, ‘20 (Brandon; Assistant Professor of Law at Washington and Lee University, holds a J.D. from Washington and Lee
University, 2020; “Abolishing Racist Policing With the Thirteenth Amendment;” UCLA Law Review, July 28th; Available Online at
https://www.uclalawreview.org/abolishing-racist-policing-with-the-thirteenth-amendment/; Accessed 07-30-2020)//ILake-EF

II. Modern Day Policing and the Legacy of Slavery White supremacy birthed and nurtured modern-day policing. Indeed, policing
today can be traced directly to slavery and the racial regime it relies on and violently sustains.[19] Black Americans
were stamped by police from the beginning as something less than human.[20] We have been called the animal, the superpredator, and
the monster. As James Baldwin remarked in 1966, “[T]he police are simply the hired enemies of this population. They are present to keep the Negro in

his place and to protect white business interests, and they have no other function.”[21] A. Pre–Thirteenth Amendment Policing In both the North and the
South, formal policing in America has racist roots. Formal policing in the South developed in the 1700s as slave patrols.[22] The

principal tasks of slave patrol policing were to terrorize enslaved Blacks to deter revolts, capture and return enslaved
Blacks trying to escape, and discipline those who violated any plantation rules.[23] Slave patrols had significant and unfettered
power within their communities that derived from Slave Codes.[24] Slave patrols would forcefully enter homes to look for criminal

activity—such as harboring enslaved Blacks seeking freedom—or simply because they could.[25] If this sounds too familiar, it is because it should. Police today routinely enter the homes
of Black people for no legitimate reason and steal Black lives. In Kentucky, Breonna Taylor was shot eight times by police who broke

down her door while she was asleep in her bed.[26] In Texas, Atatiana Jefferson was shot and killed by a police
officer while playing video games with her nephew in her living room.[27] Botham Jean was shot and killed while eating
ice cream in his living room by an off-duty police officer.[28] Slave patrols had the authority to seize, punish, and return enslaved Blacks who had left the plantation
without written permission.[29] They bred dogs “specifically . . . for the systematic use of putting down slave rebellions, canine warfare, colonial enterprising, and torture.”[30] This

unconstrained power to police Black movement persists today. Massive racial disparities exist in rates of
police traffic stops,[31] stop and frisks,[32] citations,[33] and narcotic search warrants .[34] Data demonstrating that Black
people are repeatedly and disproportionately targeted by police has led some courts to suggest that racial profiling can be a legitimate basis for Black

flight during a police encounter.[35] The same is true for the North. Modern policing in the North can be traced to the
1830s.[36] During that time period, policing was created to control free Blacks who were labelled by police as dangerous.[37] Since America’s founding, this assumption of dangerousness
subjected free Blacks to constant scrutiny and invasion of privacy by white authorities.[38] Laws, such as the Fugitive Slave Act of 1850, [39]

federalized Black dangerousness and suspicion in the North, providing slave catchers and police authority to
surveil and capture runaway enslaved Blacks and free Blacks.[40] The myth of racial difference and racialized laws
constructed a false narrative of Black criminality. That is, Black people pose a direct criminal threat to white people solely because we are Black—a
racist trope that keeps us under perpetual surveillance.[41] It is why Ahmaud Arbery was hunted down and shot while jogging in a predominantly white neighborhood by a former police

. Just ask Amy Cooper, who recently called the police on

officer.[42] White people understand this narrative and are not afraid to remind us

Christian Cooper, a Black man, claiming that he threatened her life after he simply requested that she
comply with park rules and leash her dog in Central Park .[43] This dangerousness narrative has also been
used as a justification to overpolice majority-minority communities —the myth that Black-on-Black crime is out of control. Statistically,
however, perpetrators and victims of violent crime—across all races—tend to be members of the same race.[44] Recently, Chief Judge Roger L. Gregory of the United States Court of Appeals
for the Fourth Circuit explored the consequences of racist policing and Black dangerousness. In a tour de force concurring opinion, Chief Judge Gregory provided an honest and scathing

In a society where some are considered dangerous even when they are in their living
critique of policing in “two Americas”:

rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to
purchase a bag of Skittles, it is still within their own communities—even those deemed “dispossessed” or

“disadvantaged”—that they feel the most secure . Permitting unconstitutional governmental intrusions into these communities in the name of
protecting them presents a false dichotomy. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and
seizures or forgo governmental protection that is readily afforded to other communities.[45] Police have long been the face of oppression to Black people. B. Post–Thirteenth Amendment
 For over a century after slavery was formally abolished by the Thirteenth Amendment,
Policing and Jim Crow

police were the masters of ceremonies of Jim Crow. The Black Codes—criminal laws that applied only to Black
people and were intended to control the Black body—allowed police to terrorize Blacks to enforce racial subjugation.[46] These laws were
deliberately crafted to return Blacks to slavery by a different name—convict leasing—that echoes in modern
prisons today.[47] Police developed coercive techniques to get innocent Blacks to confess to crimes they did not commit. One such technique was torture. Specifically, public
lynchings emerged in the 1890s to “extract a confession by whipping or burning” the Black body.[48] Police not only sanctioned this practice, but often participated in the mutilation of Black
flesh.[49] In Brown v. Mississippi,[50] in which admitting coerced confessions as evidence at trial was finally ruled unconstitutional, three Black tenant farmers were convicted of murdering a
white planter.[51] The only evidence of this crime were their confessions, which had been obtained through police torture that included repeated hanging and whipping of one of the

Police continue to use similar coercive techniques today to get Black people to
defendants until he confessed.[52]

confess to crimes they did not commit, and rarely face consequences.[53] C. Mass Incarceration and the New Jim Crow The passage of the
Civil Rights Act of 1964,[54] which formally ended Jim Crow, ushered in a war that targeted Black people with surgical
precision—the War on Drugs. President Richard Nixon wanted to create a strong carceral state to control Black people—“the Angela Davis crowd,” as he put it.[55]
John Ehrlichman, White House counsel to President Nixon, confirmed this rationale behind the War on Drugs: “Look, we understood we couldn’t make it illegal to be young or poor or black in
the United States, but we could criminalize their common pleasure . . . . We understood that drugs were not the health problem we were making them out to be, but it was such a perfect issue

America became
. . . that we couldn’t resist it.”[56] There is general agreement that the War on Drugs is the single most important explanation for mass incarceration.[57]

further entrenched in this war under the Reagan, Bush, and Clinton Administrations . All three championed being tough on
crime by federalizing more crimes and creating draconian sentencing regimes. Importantly, when waging a war that targets Black people, you need soldiers who are trained in anti-Blackness:
police. To that end, this costly war armed the police with the most sophisticated, and largely constitutional, arsenal with which to enforce racial subjugation: racial profiling,[58] stop and frisk,

[59] pretextual stops,[60] excessive force,[61] and qualified immunity.[62] Paul Butler refers to these as police superpowers.[63] These superpowers perpetuate
Blue-on-Black violence.[64] Increasingly intense and frequent policing of Black communities has predictably resulted in the mass incarceration of Blacks.[65] The advent of
police superpowers has so profoundly reshaped the carceral system as to require a far greater influx of public funds to prisons than to police departments.[66] This expanded carceral system

Just as Jim Crow policing served a policy of controlling Black

has developed into a sophisticated and subtle means of exploiting Black labor.[67]

labor,[68] mass incarceration continues its tradition.[69]

The 13th amendment gave Congress power to remove badges and incidents of slavery
– this missed opportunity of Reconstruction sowed the seeds for effective slavery
through disenfranchisement and involuntary servitude.
Rutherglen, ‘19 (George, John Barbee Minor Distinguished Professor of Law, University of Virginia. “The Thirteenth Amendment in
Legal Theory.” Cornell Law School, 2019. 8-18-2020)//ILake-BC

As tenBroek aptly summarized the prior decisions under the Thirteenth Amendment, “it denounces slavery and involuntary
servitude” understood to “refer to a condition of enforced compulsory service of one to another;”20 but it did
not extend to “the badges and incidents” of slavery understood in the broad sense of the racist
practices and prejudices that accompanied and were reinforced by slavery.21 If the first, narrow view prevails, the Thirteenth Amendment accomplished its
main purpose when slavery ceased to be a recognized institution in American law. Whether effective substitutes for slavery persisted,

without the formal domination of one person by another, was a question beyond the scope of the Amendment . Its mission

was accomplished as soon as slavery was disestablished. On the second, broader view , however, much
remained to be done, as legislation to enforce the Amendment revealed . Both legislation to create the
Freedmen’s Bureau and to protect civil rights responded to the compelling need to give the newly freed
slaves the status of free citizens.22 Legal theory remained almost entirely silent on this choice until tenBroek wrote his article. The narrow view
made the Thirteenth Amendment’s meaning too obvious to warrant discussion, while the broad view made its meaning too difficult to discern. If the Amendment
settled the bitter controversy over slavery by abolishing slavery as an institution, legal theory did not need to elaborate on the consequences of that momentous
step. In the words of one reluctant supporter of the Amendment, “in passing this amendment we do not confer upon the negro
the right to vote. We give him no right except his freedom, and leave the rest to the States.”23 As this remark
implies, however, a broad view of the amendment raises a host of questions about the consequences of abolition: Would it extend to equal civil

and political rights? How would those rights be defined and enforced ? Would private racial
discrimination fall within the scope of enforcement legislation? Would state refusal to protect the newly freed
slaves from violence and discrimination violate federal law? The resources of Legal Realism, with its emphasis upon the social effects of legal
rules and judicial decisions, would
be needed to give an informed answer to these questions , but its advent was
decades after Reconstruction and the establishment of Jim Crow. And when Legal Realism eventually
arrived, its focus would be elsewhere, on a general theoretical critique of legal formalism as a closed
system of legal reasoning. The realists targeted formalism as it pervaded private law subjects such as
contracts and torts rather than public law subjects like civil rights. As noted earlier, when progressive legal theorists like Thayer
discussed constitutional law, they were concerned to limit judicial review, not to expand it, let alone for
the benefit of racial minorities. As Justice Holmes wrote, in his celebrated dissent in Lochner v. New York: I think that the word ‘liberty’ in the
Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man
necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our
law.24 This limitation on judicial review allowed the courts to invalidate only the most blatant attempts to
evade the Thirteenth Amendment, as tenBroek recounted in his article.25 The nuanced approach to legal rules and their
consequences advocated by the Legal Realists tended to increase doubts about the wisdom of striking down legislation

rather than encouraging vigorous enforcement of the Constitution. Following Thayer and Holmes , those doubts were then resolved in favor

of allowing legislation and other forms of state action to stand . With only rare exceptions, the traditional
patterns of racial segregation and hierarchy that accompanied slavery received the benefit of the doubt in the late
nineteenth and early twentieth century. Both innovative and established approaches to constitutional law at that time had little

capacity to address the material conditions of Jim Crow, and in particular, how the cumulative effects
of discrimination could amount to the effective equivalent of slavery . In the law developed under the Thirteenth
Amendment, assessment of those effects fell under the question whether they amounted to “badges and

incidents” of slavery subject to the power of Congress to enforce the Amendment . On a broad view of the term,
practices that did not involve all the features of involuntary servitude prohibited by Section 1 of the Amendment could
still be prohibited by Congress as a “badge” or “incident” of slavery under Section 2. Voluntary servitude, prohibited by the Anti-Peonage Act of
1867,26 fell under this heading . Yet after Reconstruction ended, Congress did not take a broad view of

“badges and incidents” of slavery and it failed to enact any new civil rights legislation that could extend the
effective scope of the Thirteenth Amendment. Both judicial interpretation of the Amendment and the absence of

enforcement legislation effectively confined its scope, giving legal theory no innovations in legal
doctrine that required innovations in legal reasoning. All this changed with the advent of the Civil Rights Era, which eventually resulted in
expanded interpretation of the Amendment and which forced legal theory belatedly to confront its implications.

Systemic racism outweighs – state terrorism inflicts unlimited violence on people of

color and constructs threats to civilization as a justification for white supremacy.
Spencer & Perlow, ‘18 (Zoe, Olivia; Assistant Professor in the Department of Sociology and Criminal Justice, Virginia State
University AND Sociology Department, Northeastern Illinois University (“Reconceptualizing Historic and Contemporary Violence Against African
Americans as Savage White American Terror (SWAT)” J Afr Am St (2018) 22:155–173 https://doi.org/10.1007/s12111-018-9399-3)//DH

The concept of SWAT was birthed out of resistance to the discourse of the Carceral State which continues to “blame the victim” by demonizing and criminalizing people of color, while
simultaneously masking whiteness as “a power that wounds, hurts, tortures…a reality that disrupts the fantasy of whiteness as representing goodness” (hooks 1992:341). As such, we wish to
shift the focus from the victim(s) to the white perpetrators as agents of terroristic violations of the human body, mind, and spirit. In The Possessive Investment in Whiteness (2006), George
Lipsitz states that American history “demonstrates that the most fanatical group politics, the most flagrant violations of the law, and the vilest evasions of responsible and moral behavior have

been carried out by whites, individually and collectively” (Lipsitz 2006:25).By coining the term Savage White American Terror , we move
past benign language in order to invoke affect by exposing or more fully capturing the extreme brutality that has
historically been unleashed by white actors (both by the State and civilians) on people of color, and African Americans in particular, which
has served the social and political function of exerting control and maintaining white supremacy. SWAT is a broad term which envelopes a plethora of

terms employed to capture violence and/or terror/terrorism such as genocide (i.e.mass killing), crimes against humanity,
holocaust (i.e. Native American and African), the MAAFA, cruel and unusual punishment, rape and sexual assault,
torture, lynching, state/state-sponsored violence, and domestic and state/state-sponsored terrorism , none of which are mutually exclusive. While
SWAT has its violent origins in European conquest and colonialism, it is most fully realized through American settler colonialism ,
American chattel slavery, American apartheid (i.e., the violent enforcement of Black Codes, Jim Crow, and de facto segregation), American imperialism,
and American mass incarceration (including its historical antecedents such as the convict leasing system). Although SWAT encompasses the terror enacted against
many different peoples of color (globally), for the purposes of this essay, we focus specifically on African Americans, for one, because

anti-black racism is at the core of white supremacy (Feagin 2014; Kendi 2016). As João Costa Vargas (2008:xi) explains, there is a need:
…to bring attention to the ways in which anti-Black genocide is at the core of our …purported ethical
standards, and indeed is the foundation of modern politics in the Americas, especially those with a past in slavery dependent on the ultimate
exploitation and dehumanization of African laborers. As anti-Black genocide is at the core of our society’s foundations, anti-Black genocide is at the core of our cognition— We make

sense of and seek the good society, often unknowingly, according to the often silent expectations that Blacks are
not fully human and therefore not worthy of full inclusion in it. Thus, it is no accident that in the conceptualization of SWAT, that we
employ the term “savage,” which was commonly used (and still is) throughout the racialization process whereby politicians, theologians, philosophers, “scientists,” journalists, and other
prominent leaders sought to create and reinforce the idea of black inferiority by juxtaposing “civilized” whites to “uncivilized” blacks and other people of color. From ethnology, craniology,
phrenology, and physiognomy to Social Darwinism and Eugenics, an abundance of racist pseudo-scientific arguments deemed black people as less evolved on the scale of humanity, if fully
human at all, where they were equated to “apes,” “beasts,” and the “lower animals” (Desmond and Emirbayer 2011; Feagin 2014; Kendi 2016; Muhammad 2010; Washington 2006).
Furthermore, black inferiority was codified through cultural hegemony. For example, circuses, museums, and fairs were infamous for reinforcing the civilized/savage binary (see Washington
2006), which is captured by the literature of the 1904 St. Louis Fair’s World Congress of Races (demonstrating the hierarchy of “races”) stating that “the white man can do more and better
than the yellow, the yellow more and better than the red or black” and correspondingly that “human progress” is displayed, from “the dark prime to the highest enlightenment, from savagery
to civic organization, from egoism to altruism” (cited in Hill 2016:14). Dictionary definitions of “savage” include terms such as “cruel,” “barbarous,” “brutal,” “ferocious,” and it is an antonym of
“civilized.” Here, we highlight the “lie of national innocence” (Wise 2008:260), the cruel irony of the myth of noble, virtuous whiteness that belies the ruthless and marauding racialized
violence visited upon African-American people since their enslavement by those considered “civilized” (Hartman 1997). Thus, we argue that the projection of their own characteristics and
actions onto black people as savages, rapists, and criminals served to reduce the cognitive dissonance and ease the conscience of white actors who engaged in brutal violence against an entire
“race” of human beings (DeGruy 2002) such as whipping, beating, raping, maiming, castrating, medically experimenting on (without anesthesia), branding, boiling, skinning, mutilating,
dismembering, puncturing, burning, roasting, scalping, beheading, burying alive, sodomizing, quartering, dog-mauling, eye-gouging, stabbing, axing, shooting, dragging, and hanging (see Allen
et al. 2000; Baptiste 2016; Berg 2011; Finkelman 1992; Ward 2016; Pfeifer 2013; Bailey and Tolnay 2015; Lightweis-Goff 2011; Feimster 2009; Wells-Barnett 1969, 2002; Washington 2006). All
of this violence is “savage” because of its indiscriminate nature, because of its brutality, and because of its malicious intent. Yet, this was all part of the legal apparatus of white supremacy. As

from its inception, American law permitted nonwhites to

Desmond and Emirbayer (2011:251) point out: We would do well to remember, that,

be brutalized, dehumanized, and killed. It is within this contradiction—the simultaneous extension of

liberty and the retrenchment of justice , the exaltation of freedom for some at the expense of others—that the American justice
system was forged. Two prominent aspects of American democracy that supposedly set us apart from “uncivilized” societies are equal protection from arbitrary and repressive
state violence and the respect for the rule of law by the institutions charged with its enforcement. Yet as Randall Kennedy (1998:29) argues, “Deliberately withholding protection against
criminality (or conduct that should be deemed criminal) is one of the most destructive forms of oppression that has been visited upon African-Americans.” To illustrate, slave codes that
provided the legal establishment of black “people” as property was a broad cover. As early as in 1671, Virginia, “sheep, horses, and cattle” and “Negroes” were legally in the same category
(Feagin 2014:39). It was established by law that it did not matter how savagely a slave holder treated, maimed, or killed blacks that were enslaved; the actions would be treated with impunity
because they were property (Anderson 2016; Christian 1998; Kendi 2016). An example is rape where by law, white men had unlimited access to enslaved black women’s bodies, who were seen
as unrapeable, not just because of their status as chattel, but also due to their alleged hypersexuality where it was written: “no white could ever rape a slave woman…The regulations of law, as
to the white race, on the subject of sexual intercourse do not and cannot, for obvious reasons, apply to slaves; their intercourse is promiscuous” (DeGruy 2002:76). Conversely, if a black man
raped a white woman, he be could be castrated or put to death, whereas a white man only faced incarceration and/or whipping (Mogul et al. 2011:xvii). Thus, law legitimated SWAT carried out
against enslaved black people that carried over to Black Codes (which criminalized the everyday lives of “free” black people) and Jim Crow terror even after emancipation. This has been the
black experience with the “justice” system in a country where the Great Emancipator, the principle father of American “liberty,” Abraham Lincoln admitted, “I am not, nor ever have been, in
favor of bringing about in any way the social and political equality of the white and black races”; where the Dred Scott decision ruled that black people have “no rights which the white man is

There has
bound to respect”; where President Andrew Johnson stated, “This is…a country for white men, and by God, as long as I’m President, it shall be a government for white men.”

never been a time in American history where black people have been treated as full citizens, or even as
fully human by the State where at every level (i.e., law, policing, courts, prisons), the (in)justice system
has served as a malevolent form of social control in the interest of white supremacy . In Ta-Nehisi Coates’ essay, “Trayvon
Martin and the Irony of American Justice” (2013) he puts forth that: … American policy has placed black people outside of the law . We

are now being told that after having pursued such policies for 200 years, after codifying violence in
slavery, after a people conceived in mass rape, after permitting the disenfranchisement of black people
through violence, after Draft riots, after white-lines, white leagues, and red shirts, after terrorism, after standing aside for the better reduction of Rosewood and the
improvement of Tulsa, after the coup d'etat in Wilmington, after Airport Homes and Cicero, after Ossian Sweet, after Arthur Lee McDuffie, after Anthony Baez, Amadou Diallo and Eleanor

that there are no ill effects, that we are pure, that we are just, that we are clean. Our sense of
Bumpers, after Kathryn Johnston and the Danziger Bridge,

We believe ourselves to have inherited all of Jefferson's love of freedom, but none of his
self is incredible.

affection for white supremacy. Since being kidnapped from the shores of their African homeland and forced onto ships where much of the “cargo” did not survive the
torturous journey, the Savage White American Terror unleashed on black people has been unrelenting . It is thus no
coincidence that we also employ the term “terror” (used interchangeably with “terrorism”) in order to exemplify the way in which white-dominated society (including the US government)
deflects attention from their own perpetration of terror(ism) (Herman and Chomsky 2002, 2014; Madhubuti 2016). The level of SWAT and bodily precarity suffered by African Americans is
captured by the following excerpt from the 1951 We Charge Genocide petition to the UN: Mass murder on the basis of race is a powerful source of constant terror, and is intended to be, to
the whole Negro people. As a result of the pattern of extra-legal violence in which they live out their lives, if they do live, the entire Negro people exist in a constant fear that cannot fail to
cause seriously bodily and mental harm…Perennial, hour by hour, moment by moment lynching of the Negro’s soul in countless psychological, in myriad physical forms, that is the greatest and

Despite the fact that SWAT in the form of white domestic and state terror has killed more
most enduring lynching of all.

people and done more harm than any other form of “terrorism” on US soil, it is hardly ever labeled as
such. When Native American peoples were slaughtered and forced off their land (and continue to be
subjected to SWAT such as that at Standing Rock), when thousands of Latinx immigrants have been
killed by both border patrol and "vigilantes " (i.e. minutemen) for trying to cross the "border,"when black homes,
churches, neighborhoods and even entire towns have been bombed or burned to the ground and when
thousands of black people have been “beaten to death on chain gangs and in the back rooms of sheriffs’ offices
and in the cells of county jails and precinct police stations and on city streets, who have been framed and murdered by sham legal forms and by a legal bureaucracy”
(The Civil Rights Congress and William Patterson 1951), this has not been labeled terrorism . Yet even when white people mass murder each other, the terrorist
label is rarely applied. As Viviane Saleh-Hanna (2015: para 58) argues, “the mass shooter never emerges fully responsible for his violence, because he, and his ancestors, have yet to be held
accountable, because he and his counterparts continue to benefit from those original acts of chattel slavery and colonial conquest.” According to a report by the Anti-Defamation League
(2016), from 2007-2016, approximately 74% of terrorism-related deaths were linked to domestic right-wing extremists. As a matter of fact, in 2017 when Stephen Paddock killed over 50
people and wounded more than 500, in Las Vegas in the most massive shooting in modern American history, or when "serial bomber" Mark Conditt, who the Austin police chief referred to as
"a very troubled young man," terrorized Austin for three weeks, these white perpetrator were still not labeled terrorists. In a 1967 speech, one year before his assassination, Martin Luther

the US government was “the greatest purveyor of violence in the world …” In the present day, the US
King, Jr. stated that

government (with the support of media) has sought to hide their own domestic (state) and global (state and state-
sanctioned) terrorism, specifically by demonizing/criminalizing people of color and/or Muslims (Cainkar 2009;
Herman and Chomsky 2002, 2014). In line with age-old Manifest Destiny discourse, the US government has consistently justified their imperialist interventions/warmongering using racist,
xenophobic rhetoric about bringing civilization to culturally backwards people who are incapable of democratic rule (Gareau 2004). For example, before the USA invaded Haiti (one of Trump’s
alleged “shithole countries”), President Roosevelt stated that Haitians were “little more than primitive savages” (cited in Gareau 2004:164). Yet by invoking the rhetoric of “freedom,”

the American government not only masks their own terrorist actions, but also
“democracy,” and “patriotism,”

constructs an imagined enemy while painting themselves as peacemaking saviors on the world stage
(Herman and Chomsky 2002, 2014; Chomsky and Vltchek 2013; Falk 1988; Harvey 2005). Asafa Jalata (2013:3) points out that powerful Western nations: …attempt to hide the lethal
consequences of terrorism and their crimes against humanity by discoursing over civilization, progress, democracy, national liberation or religious rights…Unfortunately, the terrorism that
powerless or colonized peoples experience receives inadequate attention while terrorism that is visited upon powerful groups or nations receives more attention and publicity. In the
aftermath of the September 11th attacks on the World Trade Center, President Bush announced a “war on terrorism,” mentioning the words “terror,” “terrorist,” or “terrorism” thirty-two
times, without one definition (Bigelow 2001/2002). Currently, there are over 50 definitions contained in the US Code for terrorism (Otis 2017). Yet the US government (and even the UN) has
remained elusive when defining terrorism precisely because they have both enacted and sanctioned terror, for which the World Court has found them guilty (Chomsky 2002; Gareau 2004). To
illustrate, the US government is a major culprit of state and state-sponsored terrorism, particularly in countries where people of color are the majority (i.e., Guam, Laos, Panama, Cambodia,
Columbia, El Salvador, Indonesia, Cuba, Vietnam, Chile, Argentina, Grenada, the Congo, Guatemala, Nicaragua, South Africa), in which they have spent billions of dollars and tactically
supported and coordinated mainly right-wing counterinsurgent operations/terrorist dictatorships that engaged in thousands of human rights violations against the non-combatant civilian
population, including mass torture, rape, and genocide (see Herman and Chomsky 2002, 2014; Chomsky and Vltchek 2013; Gareau 2004; Perkins 2006; Simon 2011; Webb 1999). According to
a UN report, the School of the Americas “has graduated over 500 of the worst human rights abusers in the hemisphere” (Gareau 2004:24). Of all the countries that had death squads in Latin
America, they were all US “client states” (Herman and Chomsky 2014). But the US government has given more aid to Israel than any other country, approximately $3billion/year, in essence,
financing apartheid and genocide against the Palestinian people (Gareau 2004). The UN High Commission for Human Rights points out that “terrorism” has simply been used as an excuse to
undermine legitimate dissent against the oppression and human rights abuses against minority groups (Gareau 2004). Accordingly, by incorporating the term “terror” into SWAT, we also wish
to challenge the fact that the terrorist label has been applied to freedom-fighters (which also rings true for the above examples of those that the US government has helped to take down such
as the Sandanistas in Nicaragua). For example, the Cuban Five were trying to prevent terrorist attacks on Cuba and were instead charged with terrorism by the US government and politically
imprisoned in 1998 (they were granted clemency in 2014 by President Obama). Those involved in black liberation movements have been particularly targeted/labeled as “terrorists” by the US
government such as Nelson Mandela (ironically winner of the Nobel “Peace” Prize) who was on the US terrorism watch list until 2008; Angela Davis was designated a terrorist by the President
Nixon; The FBI’s infamous Counterintelligence Program (COINTELPRO) attempted to neutralize political activist groups deemed domestic “threats” such as the Black Panther Party, where many
were framed and politically imprisoned (some members are still in prison and even in solitary confinement), while numerous others such as Fred Hampton were murdered by the police. In
2013, Assata Shakur was added to the FBI’s top 10 most wanted terrorist list at the age of 66, after she spent over 30 years living peacefully in Cuba. To be clear, the human rights
abuses/SWAT suffered at the hands of the abovementioned people/groups in itself constitutes domestic state terrorism (Allen-Bell 2014). Notably, in 2017, the Counterterrorism Division of

the FBI published a report naming “Black-Identity Extremists” as a “dangerous” domestic terrorist threat
stating, “The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against
African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement…” Although the label is baseless (minimal evidence),

it would even be laughable if one does not fully understand how these labels have been used historically to undermine/delegitimize,

target/criminalize , and even as justification to murder those that are involved in movements to end SWAT,

most of whom are simply exercising their constitutional rights . Of course, following in the legacy of racialized violence (i.e., SWAT of the Civil
Rights Movement), the BIE classification was developed at the same time when militarized police were riding in

armored tanks, flying drones overhead, firing concussion grenades, rubber bullets, tear gas (and other chemical irritants),
pointing military-grade semi-automatic weapons, and threatening to kill people who were peacefully
protesting the police killing of Michael Brown, those who Missouri’s national guard referred to as “enemy forces” and “adversaries” (Walters 2015). Lastly , in theorizing
SWAT, it is no accident to select an acronym that is the same as the Special Weapons and Tactics (SWAT) team,
the tactical arm of law enforcement units that uses military equipment such as submachine guns, armored vehicles, flashbang
grenades, battering rams, and night vision devices, as well as militaristic tactics that were originally designed for hostage and/or crisis situations. Although this was not their original purpose,

the SWAT team was first deployed to neutralize resistance and liberation movements of people of color
who were increasingly portrayed by the government and media as violent “criminals,” or what Richard Nixon referred to as a “growing tolerance of lawlessness” among “the damn Negro-

Puerto Rican groups out there” (Zeitz 2016). Not surprisingly, the SWAT team’s very first mission was a violent raid on the Black
Panther’s L.A. headquarters , an organization which then FBI director, J. Edgar Hoover, publicly “declared war” on (Balko 2013; Williams 2015). Eventually, paramilitary
policing units (PPUs) such as SWAT were sanctioned for everyday use in poor communities of color as a form of unregulated racialized state terror that was/is carried out under the guise of
fighting the “War on Drugs” (more than three quarters of SWAT deployments are forcible entry raids to serve narcotics search warrants) and now the “War on Terror” (ACLU 2014; Balko 2013;

Just as Savage White American Terror was historically state/state-sponsored dating back to
Williams 2015).

slave patrol, armed militia, and the KKK, the “collateral damage” of militarized police fighting these
“wars” with imagined “enemies” is the mass incarceration of black and brown bodies, destruction of property, injury, and
even death of numerous people such as the 7-year-old Aiyana Jones, 23-year-old Korryn Gaines, and 92-year-old Kathryn Johnston, whose lives apparently do not matter to the Carceral State
(ACLU 2014). Taken all together, the ideas in this section demonstrate the myriad ways that Savage White American Terror has historically and continues to be carried out against people of
color. Contemporary Police Violence Against African Americans as SWAT Once the classic method of lynching was the rope. Now it is the policeman’s bullet. - We Charge Genocide, 1951 Our
pasts are not dead: why else are there repeated attempts to bury them, to erase or forget them? - Cedric J. Robinson and Elizabeth P. Robinson In 1917, whites went on a killing spree in
Valdosta, Georgia, lynching at least 13 black people over several weeks. Mary Turner, who was 8 months pregnant, was lynched by a mob of several hundred white people for “unwise
remarks” publicly denouncing her innocent husband’s lynching. She was tied and hung upside down from a tree by her ankles. Her clothes were soaked with gasoline, and she was set on fire.
While still alive, a member of the mob slit her pregnant belly open with a knife and her unborn baby fell to the ground and gave “two feeble cries,” before another member crushed its skull
with the heel of his boot. The mob then riddled Turner’s body with hundreds of bullets. Over 500 African Americans fled from the area in fear of their lives during this “lynching rampage.” No
one was ever charged or convicted for the murders. The general unwillingness of white officials to investigate or prosecute, for witnesses to cooperate, or juries to convict was a criminal
conspiracy of silence that enabled lynching to flourish (Dray 2003; Wells-Barnett 1969; Wood 2009). By the early 1900s, there had been at least 1000 lynchings per decade where all black
people—from young children and pregnant women to elders and soldiers—were considered suitable targets (Anderson 2016; Feimster 2009). Of all the Savage White American Terror
committed against African Americans, it can be argued that lynching stands out as the most virulent expression of anti-black racism. In Lynching and Spectacle (2009:1), Amy Louise Wood
posits that “…lynching held a singular psychological force, generating a level of fear and horror that overwhelmed all other forms of violence” and became “metaphor for the culmination of
racial injustice.” According to Philip Dray (2003:xii) lynching creates terror in that it “celebrates killing and makes a ritual of it, turning grisly and inhumane acts of cruelty into theatre with the
explicit intent that they be viewed and remembered.” Thus, lynching has become a “living memory” (Dray 2003: xi) for African Americans whose collective and historical memory as a people
survives through storytelling, photographs, “souvenirs,” and even motion pictures (i.e., D.W. Griffith’s 1915 Birth of a Nation), creating a vicarious terror. To illustrate, in Black Boy (1998),
Richard Wright states, “I had never in my life been abused by whites, but I had already been conditioned to their existence as though I had been the victim of a thousand lynchings.” The
unrecognizable face of the 14-year-old Emmett Till represents the symbolic power of the spectacle that scars our memories; it is the contractions of “humanity” and “civilization”; it is the
threat of annihilation for the most seemingly minor “offenses” which included asserting one’s rights (i.e., “arguing with a white man,” “demanding respect,” “frightening a white woman,”
“testifying against white man,” and “trying to vote”) (Feimster 2009:47). Ultimately, lynching stands as a constant ‘rememory’ (Morrison 1987: 35) that African Americans are outside the law.
In contemporary American society, the lynch mob has shape-shifted into the police as the primary conductors of SWAT. Neo-lynching becomes apparent when police officers are sanctioned to
subvert due process, serving as judge, jury, and executioner— police kill many more people than the State executes. Although the tactics and weapons of lynching have changed (i.e., semi-
automatic guns), the results are the same—SWAT grips black America. The list of the African-American victims of SWAT carried out by police is as long as its history and continues to serve as
what Avery Gordon (2008) labels a "haunting," or a reminder that the past has not been laid to rest. Thus, it is no wonder that in the South Carolina, the birthplace of the slave patrol (1704)
and the state of the “nigger hunt” (Berg 2011; Bailey and Tolnay 2015; Finkleman 1992), that white male officer Michael Slager shot Walter Scott in the back five times while he was running
away—simply for having “a broken taillight.” It is no wonder that in Texas, the home of the infamous Waco spectacle lynching of 1916 in which 17-year-old Jesse Washington was savagely
lynched in front of a crowd of 10,000, that in 2015 Sandra Bland, accused of “talking back” to white male agent Brian Encinia, was hanged in a jail cell (and reported to have committed suicide
by a trash bag). It is no wonder that the home of the 1921 Tulsa riot in which white rioters destroyed “Black Wall Street” where over 300 blacks were killed, over 1200 homes were burned, and
the surviving AfricanAmerican population was forced into confinement, that in 2016 white officer Betty Shelby was acquitted for shooting unarmed Terrence Crutcher who was having car
trouble (yet officers can be heard describing him as a “big, bad dude”)—with his hands in the air. And it is no wonder that in Missouri, the state with the second highest number of lynchings
outside the South, that in classic spectacle lynching fashion, Mike Brown’s uncovered bullet-ridden body was left baking in the hot summer sun for four hours, with blood draining from his
wounds onto Canfield Drive for all to witness. According to a report by the Malcolm X Grassroots Movement (2012), one black person every 28 h is “disappeared” by police or “vigilantes” and
rarely held accountable. The Fatal Interactions with Police Study (n = 1700) from May 2013 to January 2015 found that the odds of an unarmed black person being killed by the police was 6.6-
to-1. The study also shows that nearly 60% of black women killed by police were unarmed. The Counted project shows that in 2016, black males aged 15–34 were nine times more likely than
other Americans to be killed by police. Furthermore, VICE News (2017) data on officer-involved shootings between 2010 and 2016 from 47 of the 50 largest police departments in the USA
shows that blacks were 55% of shooting victims, more than twice the share of black population in the corresponding jurisdictions. Also, black subjects shot by police were more likely to be shot
during encounters that began with a traffic or a pedestrian stop. But some cities are worse than others. According to the Chicago Alliance Against Racist and Political Repression, since 1986
more than 1600 people have been shot by Chicago police officers, which averages out to more than one person a week. One report by the City of Chicago Independent Police Review Authority
shows that African Americans are 10 times more likely to be shot by a Chicago police officer than a white person (Caputo 2014) and according to a We Charge Genocide shadow report to the
UN, between 2009 and 2013, over 75% of those shot by police in Chicago were black. Tellingly, another study found that of the 208 cases closed between 2013 and 2014, not even one

every assault on black people showcases the

shooting was deemed “unjustified” (Macaraeg and Flowers 2016). As was the case in historical lynchings,

expendable nature by which American society openly views black bodies (ThompsonMiller et al. 2015). Just as lynching was a form
of SWAT that could be brought about by literally “nothing,” this also applies now when black people have called down the wrath of police for driving, walking, or even for simply existing. In

Tears We Cannot Stop (2017), Michael Eric Dyson states: Cops rain down terror on our heads with relentless fire and make us
afraid to walk the streets. At any moment, without warning, a blue-clad monster will swoop down on us to snatch our lives from us and say that it was because we were
selling cigarettes, or compact discs, or breathing too much for his comfort, or speaking too abrasively for his taste. Or running, or standing still, or talking back, or being silent, or doing as you
say, or not doing as you say fast enough (178). The petty “reasons” for police to engage in SWAT are never in short supply, demonstrating the disposability of black life. For example, Chicago
police officer tasered pregnant Elaina Turner three times (once in her belly) after she asked if she could get her child’s car seat out of her fiancé’s van that they were wrongfully towing, causing
her to have a miscarriage, and also, in Chicago, police tasered 8-month pregnant Tiffany Rent because she parked in the handicap parking space at Walgreens and tore up her $350 ticket and
threw it to the ground. And, in 2017 in Asheville, North Carolina, where white officers tasered and beat Johnnie Jermaine Rush for jaywalking, and in Sacramento, California, where a white
officer threw the 24-year-old Nania Cain to the ground and repeatedly punched him in the face—again for jaywalking. Also, in Sacramento, police officers made several purposeful attempts to
hit homeless and mentally ill Joseph Mann with their car and when that failed, chased him, fired 18 shot, 14 of which hit and killed him. And Miriam Carey was shot five times from the back of
her car as she was making a three-point turn and driving away from a white house checkpoint (with her 1-year-old baby was in the car). Yet, the State does not have a monopoly over SWAT—it
extends to the public (i.e., slave patrols, lynch mobs). As DuBois points out in The Souls of Black Folks, “the police system was arranged to deal with blacks alone, and tacitly assumed that every
white man was ipso facto a member of that police.” In the present day, SWAT carried out on black bodies by civilians is often justified by Stand Your Ground (a.k.a “line in the sand” and “shoot-
first”), the Castle Doctrine, or simply the “I feared for my life” trope that seems applicable in just about any situation involving a black person. We see this in the case of a 28-year-old, 200-lb,
gun-toting, self-appointed neighborhood watch George Zimmerman who was able to stalk and murder the 17-year-old, 158-lb, skittles and ice tea-carrying Trayvon Martin under the guise of
“self-defense” or when the same claim was made when the 54-year-old Theodore Wafer shot the 19-year-old Renisha McBride in the back of the head while she was on his porch seeking help
after a car accident. It also becomes crystal clear that these murders are in defense of both white property, and whiteness as property (Harris 1993). For example, when a 47-year-old software
developer Michael Dunn shot and killed 17-year-old Jordan Davis for playing his music too loud in a parked car in front of a convenience store in Jacksonville, Florida (and ordered a pizza
afterwards)—this harkens to lynching and other forms of SWAT that resulted from black people not staying in their “place.” This argument brings us full circle in pointing to the white
supremacist logic of the Carceral State which, from its beginnings, has sought to turn black people every which way but loose. In The Condemnation of Blackness (2010:4), Khalil Gibran

Muhammad argues, “For white Americans of every ideological stripe – from radical southern racists to northern progressives – African-American criminality
became one of the most widely accepted bases for justifying prejudicial thinking, discriminatory treatment, and/or acceptance of racial
violence as an instrument of public safety.” But the rhetoric of “law and order” or “crime control” is disingenuous at best, especially when we consider that
even by the FBI’s own standards (which grossly underestimates white crime), their Uniform Crime Report (2016) arrest data by race shows that white

people continue to commit more crime than another other group, including the majority of violent
crime (59%) and property crimes (68.7%) (compared to 37.5 and 28.1% for blacks, respectively). Thus, alleged criminality becomes irrelevant when
essentially, it is blackness that is seen as the problem—when it is blackness in itself that is criminalized . As
Viviane Saleh-Hanna (2015: para 61) points out: This long-standing narrative is nonsensical because it keeps us trapped in a ‘debate’ about the perceived violence or nonviolence of the victims
of White violence, shackled in a jailhouse or at an auction block, hanging on a rope from a tree, confined to a prison cell or strapped to the sterile bed of a death chamber, violently murdered
by a White mob, their ancestors on plantations and their descendants in a White system of criminal justice. Regardless of time or circumstance, this narrative insists that danger resides within
the bodies and actions of the colonized when in reality dangerousness is endemic to White supremacy. Today, although the outfit of the language that keeps African Americans encapsulated in
the confines of white supremacist terror has changed, the symbolic meaning and intent of the language—to preserve the authority to engage in SWAT against black bodies—remains the same.
Whereas the savage “black brute” constructed to justify the SWAT exercised during slavery and lynching was replaced by the lawless “nigger” by people like Nixon who commonly referred to
black people as such, the new “nigger” of dog whistle racism is today’s “thug,” invoking the image of savagery and criminality in ways that continue to justify SWAT against black bodies (Smiley
and Fakunle 2016). Even President Barack Obama played into this rhetoric when he referred to rioters (mostly black youth) as “criminals and thugs” who were protesting the grisly murder of
the 25-year-old Freddie Gray (whose spine was 80% severed from his neck) at the hands of six Baltimore police officers when he tried to run away (Feuerherd and Fredericks 2015). Again, we
must ask ourselves, who are the criminals and thugs here? In terms of SWAT in the form of state violence against African Americans, the “criminal” and “thug” tropes play out through
common justifications (excuses) of “I thought he/she had a gun,” (i.e., Sharmel Edwards, John Crawford, Rekia Boyd, Stephon Clark, Alton Sterling) “I feared for my life” (i.e., Mike Brown,

This is the new

Philando Castile, Terrence Crutcher), “I had no choice” (i.e., Korryn Gaines, Tamir Rice, Charleena Lyles), or “I thought it was a taser” (i.e., Oscar Grant, Eric Harris).

language that plays on the assumption of black criminality and white fear (Spencer 2013) in order to invoke State
protection of those who use deadly force to “neutralize the threat,” especially when that “threat” is
black. Thus, “justifiable” homicide is the new “death at the hands of persons unknown” that was the coroner’s inevitable verdict during the lynching era (Dray 2003) which in the most
egregious and excessively brutal murders, the officers are said to have “acted reasonably” (i.e., Malissa Williams and Timothy Russell). Apparently, de-escalation and even protection from
harm are not options when it comes to “policing” black bodies (i.e., Natasha McKenna). The vilification/criminalization process is shameless, often occurring posthumously. For example, a New
York Times article (Eligon 2014) stated that slain teen Michael Brown was “no angel,” because he was involved in a “scuffle with a neighbor,” rapped using “contemplative and vulgar” lyrics,
and had “dabbled in drugs and alcohol.” The attempts to justify SWAT are in themselves ruthless. Furthermore, as Nicholas Powers (2016:17) posits, “whiteness (is) like a roving vortex that
steals childhood.” This is not only in the sense that even children are killed by police, but also because African-American youth are denied innocence and are indeed not seen as children at all,
but as dangerous and threatening (Goff et al. 2014; Laura 2014; Meiners 2016; Morris 2015; Noguera 2008). In age-old racist fashion that characterized black boys as “overgrown Negroes”
where the 14-year-old Emmett Till was claimed to have “looked like a man,” 12-year-old Tamir Rice who was fatally shot by police within 2 s for playing with a toy gun was said to be “tall for
his age.” 6-ft-4, 210-lb Darren Wilson, justified killing the unarmed teen Michael Brown with his hands up, by saying that looked like a “demon,” “aggressive,” and that he (Wilson) “felt like a 5-
year-old holding onto Hulk Hogan” (Sanburn 2014). Furthermore, the genderspecific vilification of black girls who are seen as “bad” and “unruly” (Crenshaw 2015; Morris 2015) explains why a
Grand Rapids police thought it was o.k. to handcuff a shrieking 11-year-old black girl at gunpoint while searching for a suspect, or why a white police deputy felt justified in grabbing a South
Carolina high school student by her neck, flipping her backward while seated at her desk, then dragging and throwing her across the floor because she refused to leave the classroom. Or why
white officers terrorized a group of black teens, holding and accosting them at gunpoint, wherein the 15-year-old bikini-clad Dajerria Becton was slammed to the ground and straddled with the
full body weight of a white male officer. As such, parents are forced to interrupt their children’s innocence with “the talk” of what it means to be black in America. While SWAT can be deadly, it
is important to mention that as June Jordan (2002) points out, “some of us did not die.” For example, VICE News (2017) data found that two-thirds of the individuals shot by police survived.
Another study shows that young black men who have had multiple stop-and-frisk police encounters experience higher rates of stress, anxiety, and trauma (Geller et al. 2014). That is how
SWAT stays alive— through the terror it creates in its “survivors.” The heartbreaking testimony of John Burge torture survivor, Anthony Holmes (who lost 30 years of his life in prison based on
a coerced false confession), is a chilling reminder of the unceasing power of SWAT when he states, “He tried to kill me. It leaves a gnawing, hurting feeling. I can’t ever shake it…” (Habte 2015).
Years after Haitian immigrant, Abner Louima’s American dream turned into a reoccurring nightmare in 1997 after he was sodomized with a broken-off broom handle by NYPD, he told the
press, “It’s still part of my daily life unfortunately” (Greene 2007). Sexual violence has been a critical component of SWAT and is the second most frequently reported form of police officer
misconduct after excessive force (Cato Institute 2010). Jannie Ligons, a 57-year-old grandmother and one of the thirteen survivors of Oklahoma City police officer Daniel Holtzclaw’s sex crimes,
who he forced to perform oral sex on him, told the court, “I so desperately want my life back - the life I had before he took it away” (Brandes 2016). Trauma abounds as parents are forced to
survive without their children and vice versa—sibling, aunts, uncles, cousins, grandparents—gone. Children are growing up with terror after having witnessed SWAT firsthand such as Tanisha
Anderson’s 16-yearold daughter who watched from her house window as Cleveland police body slammed her mentally ill mother onto the concrete sidewalk, killing her. Or Philando Castile’s
girlfriend’s four-year-old daughter (a bullet nearly missed her) who begged her mother to stop screaming after Castile was shot, saying, “I don’t want you to get shooted” and “I wish this town
was safer” (Xiong and Stahl 2017). Or when her three children witnessed their pregnant mother Charleena Lyles shot seven times by police when she called for help after an attempted
burglary. It is no wonder that research findings suggest that less than half of black youth respondents trust the police, compared to 71.5% of white youth (Rogowski and Cohen); SWAT
continues to wreak havoc on black communities, undermining the “democracy” that so many white Americans take for granted. Conclusion J.W. Bailey, a white man himself, stated that
“lynching, mob spirit, lawlessness are in the blood of our people” (cited in Finkelman 1992:303). We must never forget that Savage White American Terror is as American as apple pie, and that
the blood of people of color has fertilized this land of racial hatred and savagery that has not been untangled from its roots. The State (i.e., police) and its white citizenry have historically both
engaged in and sanctioned law-breaking (i.e., lynching and police violence) and disorder (i.e., white riots)—particularly when it has been in the interest of maintaining white supremacy—yet
white people are still held up as the standard of morality, goodness, and civility. Conversely, hegemonic notions of black savagery and criminality serve to protect the integrity of white

The SWAT visited upon black people ensures that they live in a constant state of
terrorists by justifying SWAT.

heightened vulnerability to bodily precarity and social death (Patterson 1982). Terror exacted at the hands of both white police officers and
civilians reminds us that SWAT is bleeding into this epoch, as the continuation of a well-established history that has been culturally transmitted through the generations and is as pernicious
today as it was during the lynching era. After all, white Georgia cop Greg Abbott reassured white motorist that she was safe by saying: “But you’re not black. Remember, we only shoot black

people” (Lopez 2017). We argue that what we see today, with the countless police shootings of unarmed black people (including
children), the strange (fruit) and brutal treatment of black people in police custody and their disappearances from

their communities, represents the scramble to “make America great again” by emboldening white actors
to invoke new forms of state/state-sponsored SWAT against people of color . This effort becomes all too apparent when the
symbolic response to black America’s “I can’t breathe” is “Fuck your breath” (Thrasher 2015). The consistent failure to hold perpetrators as well as those that sanction SWAT accountable

the Carceral State relies on unrestrained state

represents the codification of neo-lynching. The convergence of all aspects of SWAT cannot be overstated:

power (domestically and globally); on the criminalization and repression of people of color; on
disenfranchisement, dispossession, exploitation and poverty; on under- and mis-education; on
militarization; on physical, structual and spiritual violence; on manufactured illness and even death to feed the machine of
mass incarceration and ultimately white capitalist heteropatriarchal domination . Chuck Morse states, “It is the task of the
politically engaged radical critic to side with the excluded and repressed: to develop insights gained in confrontation with injustice, to nourish cultures of resistance…” (cited in Gordon

As scholars and activists, we must continue to build on a abolitionist praxis that challenges the (il)logic of
2017:194).

the Carceral State and all the manifestations of un-freedom, including the dialetics of violence and attenuating police power that keeps us contained (Davis 2005, 2016). Through
our stubborn insistence on recognizing black humanity, we must continue to engage in epistemic activism, creating counter-discourses that nurture radical imaginaries and freedom dreams
 The Movement for Black Lives, including folks that are involved with Black Lives Matter, Dream Defenders, Black Youth Project 100, and
(Kelley 2002; Lowery 2016).

numerous others continue to contest the normalization of SWAT and build a collective vision for a more just and

humane future.

Thus, the plan: The United States federal government should enact substantial
criminal justice reform by interpreting “badges and incidents of slavery” identified in
Section Two of the Thirteenth Amendment to include all discriminatory instances of
policing and eliminate those “badges and incidents of slavery.”

Abolition of policing is key and can only be achieved through the defunding,
demilitarization, and de-legitimization of the police.
Hasbrouck, ‘20 (Brandon Hasbrouck, Assistant Professor of Law at Washington and Lee University, holds a J.D. from Washington and
Lee University, interviewed by Sean Rameswaram, Host of Today, Explained—the Vox podcast, 2020; “Abolish the police?,” Today, Explained
Podcast — Official Transcript, June 4th, Available Online at https://drive.google.com/open?id=1ITV5CEThlIvXW4-
3i9nbllfxW8vl4B0id25D3RBKjDQ, Accessed 06-14-2020)

BRANDON HASBROUCK (LAW PROFESSOR): I'm an assistant professor of law at Washington and Lee University School of Law. SEAN: I asked Brandon to explain what this radical idea --

abolish the police -- really means. BRANDON: Just to clarify, I think it sounds radical to certain communities, mostly the white
community. I don't think it's a radical idea to communities of color. When I say abolish policing, I mean
abolish modern policing that was birthed and nurtured by white supremacy to sustain and perpetuate
racial hierarchy blessed by the Constitution itself, that is essentially control of the black body. SEAN: Walk us
through this link between white supremacy, slavery, and police. BRANDON: The history of policing , it has racist roots. SCORING IN - TURTLES BRANDON: The

policing in the South developed as slave patrols . And essentially, these slave patrols had significant and
unfettered power within their communities that were derived from slave code . So the slave patrols had the authority under
these codes to forcefully enter homes to look for criminal activity or just because they could. In the north it was something similar, the North, policing developed formally in the

1830’s. And during that time period, policing was created to control free blacks. Even after slavery was formally

abolished, even then, police were the masters of ceremonies of Jim Crow. And essentially there were these black codes created, these
criminal laws that apply only to black people. And were intended to control the black body. And police were essentially terrorized blacks during this

period to enforce racial subjugation. These black codes were deliberately crafted to return blacks to
slavery under a different name, convict leasing. During that time period of Jim Crow, police developed
coercive techniques to get innocent blacks to confess to crimes they did not commit . So that's Jim Crow.
And that was happening all the way until essentially the Civil Rights Act . <CLIP> PRESIDENT LYNDON B. JOHNSON: The Civil Rights Act
is a challenge to all of us to go to work in our communities and our states and our homes and in our hearts to eliminate the last vestiges of injustice. And the Civil Rights Act of 64, which
formally ended Jim Crow, it ushered in a different era, which Michelle Alexander calls “the New Jim Crow.” <CLIP MONTAGE> PRESIDENT RICHARD NIXON: America's public enemy number one
in the United States is drug abuse. PRESIDENT RONALD REAGAN: Drugs are menacing our society. They're threatening our values and undercutting our institutions. PRESIDENT BILL CLINTON: Of

simultaneously, while this is all

all the consequences of drug use and abuse, none is more destructive and apparent than its impact on crime. BRANDON: And

going on right, we see the rise of certain Supreme Court issuing decisions that essentially gave police what some
call super powers, the ability to stop and frisk. They conduct pretextual stops, use excessive force. And also,

it gives police qualified immunity. This is all happening simultaneously and this essentially perpetuates blue on black violence .
SCORING OUT - TURTLES SEAN: So we're hearing lots of calls to abolish the police right now. But how long have people been calling to get rid of police departments to get rid of this sort of
history of white supremacy in law enforcement? It's not new, right? BRANDON: It's not. So abolition democracy, you know it has its roots of Malcolm X, James Baldwin, Angela Davis, Paul
Butler. You’ve heard it for years in hip hop music. FEMALE COMPUTER VOICE: The curses are coming in 5, 4, 3, 2, …. HIP HOP MONTAGE NWA’s “Fuck the Police” KRS-ONE’s “Sound of da
Police” JAY-Z’s “99 Problems” RAGE AGAINST THE MACHINE’s “Killing in the Name” BRANDON: When you have these, these extraordinary events where black bodies are murdered, you hear
these conversations. Ferguson was a huge event. And Mychal Denzel Smith wrote a piece right after Ferguson highlighting abolishing police. SEAN: And we just had, like three of these
extraordinary events. BRANDON: Right. I just participated in peaceful protest yesterday with my family, including my daughters. And you see it on the streets. And this was a small town in
southwest Virginia, Lexington where Washington and Lee is located and you see signs, “Abolish the police!” and the momentum and all these protests for us to really, truly examine what went
wrong in policing, it's at an all time high. And people want answers. People demanding answers. People are understanding. It's not about, you know, these lone wolves going on committed this
crime. No, it's something more systemic. It's a culmination for many people, right? And you see it. You have eyes on it and you have the media focused on it. Right. That means something. That
causes certain reaction. It's not reaction in the black and brown communities. We've already felt that it's now the white community seeing it on TV. It's the same thing with there in the
marches for civil rights. When you see what's going on in TV, that makes a profound impact with certain communities, particularly white communities. SEAN: So what do white communities
 it's a great time for people to listen, to hear the ideas, to
and any others need to know about abolishing the police? BRANDON: I think

understand what that means. SCORING IN - SAY AHH BRANDON: It's not that the police is not going to exist. I know that
that causes some fear that they may be sexually assaulted and there's no police to help them or they
may be burglarized or robbed and there's no police. That's not what I'm talking about when I say abolish
the police. SCORING OUT - SAY AHH SEAN: Brandon explains what exactly everyone means by abolish the police after the break. [MIDROLL] SEAN: OK, Brandon, so what
does abolishing the police look like? BRANDON: One—ban discriminatory policing practices such as stop and
frisk. Another would be end qualified immunity. We know when police violate black people's
constitutional rights through excessive force , for an example, they kill a black person. Oftentimes are not charged with criminal
activity. They raise some sort of a specter of I thought they were reaching for a knife or a gun and they
get off and they're never charged for anything for that. Let these people be sued civilly and they should face
exposure. Another would be we should disarm police of military weapons and we should also end armed
reinforcement of traffic and quality of life violations. We saw this play out a little bit in the HBO series The Watchmen, and not to spoil anything,
cause I'm not going to, but essentially during the traffic routine, the gun is locked and the lock on the gun is essentially controlled by some body of overseers, <CLIP> WATCHMAN POLICE
OFFICER: C’mon, release my weapon. COMMANDER: Probability of drug and/or alcohol in the subject’s vehicle POLICE OFFICER: High COMMANDER: Probability of firearms and/or explosives in
the subject’s vehicle? POLICE OFFICER: High COMMANDER: What’s your overall perceived threat level from the subject? POLICE OFFICER: High! Just buzz me, okay? COMMANDER: Stand by.

Another would be something as simple as establish a separate emergency response

<Buzz> BRANDON:

mechanism from police for mental health incidences. We should be having mental health counselors to
deal with those incidences, not police who are not trained to do so. We also should be talking about proving
reparations for past police terror. Implicit bias, sensitivity and de-escalation training should be made
mandatory. And something I think some folks are talking about now is there should be a development of a data system that
accurately tracks race in police contacts, including, for example, traffic stops, citations, searches,
warrants, use of force and killings in arrests. And in tracking all information, we should also know who the
officers involved, because oftentimes these officers get fired from one jurisdiction or gets hired and another
for these violations of black people's rights. SEAN: It's interesting. You know, I think when people hear abolish the police, it's sort of like they can't take the
idea seriously because, well, that's just a ridiculous idea. But when I hear what you have in mind when you say abolish the police, it sounds more like rethink the police, rethink how we protect

people and keep people safe. BRANDON: Yeah, that's exactly right.What is policing and how should policing be used as those
fundamental first questions that I'm getting at when I say abolish racially discriminatory policing . And I think
legislators, both local, state and federal level, should be thinking about these measures and they have the ability and
power to implement them. SEAN: How is abolish the police, or rethink, you know, protecting people different from reform or increased accountability? BRANDON: Yeah,
sure so we've seen some of these reforms play out. And we're not seeing any changes in terms of police

violence against black people. For example, there has been community policing reform in which this idea that we
should be we should have our police be more representative of the population that they're policing. And we're still seeing evidence to suggest that

police violence continues under those reform measures. So there needs to be something else that
changes this ongoing racial terror by police. SEAN: And for the people who are worried about how this you know, how this might affect the way our
society functions, like, let's just say, you know, it's a Friday night, 4th of July or something like that, like like the Fourth of July. That's coming up real soon. And, you know, you're worried about
drunk drivers on the road. Who's getting your back on drunk drivers? BRENDAN: You're going to be able to call the police. The police are still going to be out there enforcing traffic violations,
maybe not with weapons, though, maybe they have some other tools to de-escalate situations. SEAN: And what about, like, you're scared that this jilted ex lover of yours is going to come after
you and kill you? Same situation? BRANDON You know, we can continue to go through these hypotheticals. I want to be very clear here. Please don't listen to black women as it exists today.

is
Black women are often the victims of sexual assault, sexual violence, and they are not listened to. They're not deemed credible by police officers. So we’ve got to ask yourself,

policing working? Maybe it’s working for certain communities, white communities in particular. Now, police are
going to be there when you call and say, hey, look, there's someone harassing me. They’re going to have the better trained police officer come and diffuse the situation if the perpetrator is still
there. SEAN: Has anyone tried this? It doesn't sound like an experiment that's been conducted in the United States, but maybe it has. But I mean, when you talk about rethinking how we are
feeling safe as a society, I think about like the U.K. and how, you know, your classic U.K. police officer in, say, London doesn't even have a gun. They've got a baton. And perhaps a whistle and a

abolition is not going to make us less safe. It's going to make people
way to call for backup. BRANDON: Yeah, that's right. Please,

more safe, especially people of color. And in each country, you go to other countries, they developed, policing
developed differently. And America's really unique in a lot of respects, if you really trace policing. It, was continues to be birthed and

nurtured by white supremacy. And there needs to be a racial justice intervention. SEAN: What does a city
look like in a world where the police have been abolished? What is the vision? BRANDON: It looks more
equal. It looks more safe. It looks more just. It looks more hopeful . SCORING <NEW TENSION 08> BRANDON: It looks parents like mine
 It looks like I could go outside in my own home, my own grass, and not be viewed with
don't have to give their children ‘the talk.’

suspicion, that I'm dangerous. It's a world where I could walk down the street as a black man and the
police don't follow me. police don't pull me over just to dehumanize me , which has been done. It's a world where
we are free. SEAN: Brandon, thank you so much for your time. BRANDON: Appreciate you guys so much. Thank you so much. All right.

We reclaim constitutional politics through a Republican reading of the 13th

amendment – Reconstruction amendments are the fracture points of the constitution
and reinterpretation is necessary to rollback axioms of slavery.
Spalding, ‘03 (Spaulding Norman W. Spaulding, A nationally recognized scholar in the areas of professional responsibility, civil procedure, and federal courts, Norman W. Spaulding’s research concentrates on
the history of the American legal profession and theories of adjudication. In 2014, he received the John Bingham Hurlbut Award for Excellence in Teaching. In 2010 he served as the Covington & Burling Distinguished Visiting
Professor of Law at Harvard Law School. And in 2004 the Association of American Law Schools presented him with its Outstanding Scholarly Paper Prize for “Constitution as Counter-Monument: Federalism, Reconstruction and the
Problem of Collective Memory,” published in the Columbia Law Review. He is a member of the American Law Institute and the American Bar Association Standing Committee on Ethics and Professional Responsibility. Before joining
the Stanford Law School faculty in 2005, he was a professor of law at the UC Berkeley School of Law and an associate at Skadden, Arps, Slate, Meagher & Flom LLP, where he did environmental litigation. Professor Spaulding, JD ’97,
served as a law clerk to Judge Betty B. Fletcher (BA ’43) of the U.S. Court of Appeals for the Ninth Circuit and Judge Thelton Henderson of the U.S. District Court for the Northern District of California. Constitution as
Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, Columbia Law Review Association, Inc, https://www.jstor.org/stable/3593382)//Ilake-NC

To trace this strange history will not require the revelation of new historical evidence; the primary and secondary sources
are well recognized and long studied. I begin, instead, by describing the historical con- sciousness of countermemory.49 With this
alternative conceptual frame- work set out, I canvas cases reflecting the Court's new federalism jurisprudence
and argue that the significance of the Reconstruction Amendments is systematically obscured by the
Court's method of constitutional interpretation.50 This is so, I suggest, because the Court's method is tied
(through precedent and analysis of legislative intent) to the desperate desire to forget that defined the terms of
Reconstruction before it even began-a not-so-secret desire that the "Negro question," and the puzzles of federalism and
separation of powers with which it was inextricably intertwined, 'just hurry up and disappear."51 The
Reconstruction Amendments are thus ripe for interpretation as countermonuments-monuments
against the axioms that justified slav- ery (primarily, states' rights and racism), monuments that reproduce these
principles "in precisely duplicated negative space ."52 Justice Thurgood Marshall hinted at the radical
implications of this mode of his- torical consciousness when he asserted that "[w]hile the Union survived the civil
war, the Constitution did not."53 Constitutional scholars have recoiled in horror from this proposition,54 and the Supreme Court,
from nearly the start of the Union, has been categorically indisposed to think Mar- shall's thought. "[C]ollisions may take place," Chief Justice
Marshall ad- mitted in Cohens v. Virginia: But a constitution is framed for ages to come, and is designed to approach immortality
as nearly as human institutions can ap- proach it. Its course cannot always be tranquil .
It is exposed to storms and tempests,
and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will per- mit, with the means of self-
preservation from the perils it may be destined to encounter.55 But the Civil War and Reconstruction were more than
mere collisions-a perfect storm perhaps; in any event, more than the Framers provided for. Or so Justice Marshall and the
Reconstruction Amendments themselves powerfully suggest. Rather than recoil from Marshall's thought, I hope to show that
countermemory reveals its deep salience.56

The plan is a demosprudential demand that recenters the people as a source of

interpretative authority. That mobilizes radical constitutional politics.
Guiner & Torres, ‘14 (Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward A Demosprudence of Law and Social
Movements, 123 YALE L.J. 2740, 2749 (2014), https://www.yalelawjournal.org/article/changing-the-wind-notes-toward-a-demosprudence-of-
law-and-social-movements, JB)

We seek in this essay to go beyond the debate over legal liberalism as a philosophy or as a justification for the role of judicial review in
protecting minority rights. Instead we propose a new paradigm that we call demosprudence. Demosprudence
is the study of the
dynamic equilibrium of power between lawmaking and social movements. Demosprudence focuses on
the legitimating effects of democratic action to produce social, legal, and cultural change. Although
democratic accountability as a normative matter includes citizen mobilizations organized to influence a single election, a discrete piece of
legislation, or a judicial victory, we
focus on the interaction between lawmaking and popular, purposive
mobilizations that seek significant, sustainable social, economic, and/or political change. Put differently,
we seek to understand, analyze, and document those social movements that increase the extant
democratic potential in our polity, and which do so in a way that produces durable social and legal
change. Whereas jurisprudence examines the extent to which the rights of “discrete and insular” minorities are protected by judges
interpreting ordinary legal and constitutional doctrine,27 demosprudence explores the ways that political, economic, or
social minorities cannot simply rely on judicial decisions as the solution to their problems. Rather than
turning over their agency to lawyers, they must find a way to integrate lawyers not as leaders but as
fellow advocates. Borrowing a phrase from social theory, proponents of progressive social change must be advocates in themselves and
for themselves and others. Understanding the roles played by social movements in producing durable social and legal change is central to our
inquiry. A. Introducing Demosprudence As a method, demosprudence
requires us to ask two overarching questions: (1)
How and when do disadvantaged or weak minorities (whether political, economic, or identitarian)
mobilize to protect their own rights in a majoritarian democracy?; and (2) Does the mobilization of these
constituencies have a democracy-enhancing effect? By democracy enhancing, we mean that the mobilization opens up
space to those previously excluded or marginalized and enables them to participate more fully in helping to make decisions that affect their
lives.28 Demosprudence, therefore, is the study of the relationship between social movements and law in
the creation of authoritative meaning within a democratic polity .29 Unlike jurisprudence, which analyzes the work of
judges acting in formal sites such as courts, or legisprudence,30 which produces a secondary literature about how the work of elected
representatives is an important source of lawmaking,31 demosprudence focuses on the ways that ongoing collective
action by ordinary people can permanently alter the practice of democracy by changing the people who
make the law and the landscape in which that law is made .32 Scholars of jurisprudence focus on the collection of rules
imposed by authority and interpreted by jurists; scholars of legisprudence see the legislator or elected official as the pivotal actor. Scholars
of demosprudence, by contrast, draw attention to the “dynamic constituencies” who call power to
account through their participation in “contentious” politics and other forms of legal meaning making
that also call democracy to account.33 Constituencies refer to those actors who make up the body of support for leaders and
elites in the process of governing or policy change. We use the term “constituencies of accountability” to refer to those groups who are not
committed primarily to any particular person or leader, but rather to a particular vision of change against which they measure the effectiveness
of those using state power. We should be clear that demosprudence is not a philosophy of the left or the right. Neither is it the philosophy of
unmediated preference gathering (like the populist initiative process or the market). Rather, demosprudence represents a philosophical
commitment to the lawmaking force of meaningful participatory democracy. It is true that we deploy the interpretive device of demosprudence
to examine social movements that represent those who were not part of the “consent community” and who challenge the legitimacy of those
rules that flowed from the period of their exclusion or those rules that continue to exclude them. We are also interested in social movements
where the principle at stake is democracy enhancing. But we want to reflect on the democracy-enhancing and meaning-making capacity of the
conservative social movements of the 1980s and 1990s, not just the democratic meaning-making role of the civil rights or women’s rights
movements of the 1960s and 1970s. For example, even though it is commonly defined by its conservative agenda, elements of the property
rights movement are aimed at improving the confidence we have that the government works for the common good and not in the service of
corporate special interests. We hope to encourage greater attention to the lawmaking (not just election-defining) effects of movements
ranging from the abolitionists and suffragettes to the evangelical Christian, property rights, and gun rights movements of
today. To that extent, they are worth exploring through the lens of demosprudence because they
arguably expand the quotient of democratic legitimacy. As a methodology, we use the term demosprudence to invite
empirical, comparative, and historical analysis of social movements whose aim has been political change defined more broadly than simply the
effort to elect a candidate of choice or to influence the outcome of a single election.34 Demosprudence, in other words, is not primarily the
study of electoral campaigns. Rather, it invokes a particular kind of challenge, which Sidney Tarrow calls “contentious politics.”35 The
methodology of demosprudence is organized around the evolving secondary literature in law and
legal studies analyzing the role of citizen mobilizations in authoring new laws, changing the meaning of
existing laws, and producing a more democratic understanding of how power functions in
representational relationships. Such an effort emphasizes the tools that social movements use to make law and the
role of ordinary people whose collective struggle and collective commitments inform the lawmaking
process. We argue that the power of social groups is found in normal politics, but its more important
role is in constitutive politics. Demosprudence is in the nature of an acid bath to remove the corrosion
that has isolated the realm of the state from the legitimizing power of the people, except as it is expressed through
conventional partisan politics and the act of representation by elites. As a practice, demosprudence trains its sights on the
lawyer or public citizen who functions as a crucial source of moral authority and democratic legitimacy in
facilitating the interaction between social movements and formal lawmaking. Demosprudence is a way
to examine how lawyers and other public citizens represent social movements to make law. Rather than
focus on the multiple ways in which lawyers guide movement activists through the thickets of law, we
want to focus on the ways in which movement activists and a mobilized community can change thinking
about the content of law and thus the horizon of the possible and sustainable. Borrowing from Thomas
Stoddard’s terminology, we emphasize the role of culture shifting, not just rule shifting, in producing durable social change.36
Through this process we aim to engage academics, activists, policymakers, and ordinary people in a larger
conversation about the interaction between legal culture and popular mobilization, to supplement the
court-centered view of law, and to specify the relationship between lawmaking and social movements .
This is a conversation about how lawyer-citizens working with social movement activists authorize new meanings for
lawmaking and thus challenge existing centers of power in service of democracy.

The black radical tradition reminds us that demands cannot stop at temporary
concessions of power – demosprudence requires continuous challenge to authority to
create cultural shifts.
Guinier & Torres, ‘14 (Lani Guinier & Gerald Torres; Lani Guinier is an American civil rights theorist. She is the Bennett Boskey
Professor of Law at Harvard Law School, and the first woman of color appointed to a tenured professorship there; Gerald Torres, an acclaimed
global scholar of environmental law, critical race theory, and federal Indian law, has been named full professor of environmental justice at the
Yale School of Forestry & Environmental Studies (F&ES); Changing the Wind: Notes Toward A Demosprudence of Law and Social Movements,
123 YALE L.J. 2740, 2749 (2014), https://www.yalelawjournal.org/article/changing-the-wind-notes-toward-a-demosprudence-of-law-and-social-
movements)//ILake-EF

Hamer and King had different goals for their power, as well. She was not interested in two seats and by her
resistance transformed thin paper promises into thick action. While acknowledging the importance of King’s
personal magnetism and his access to elites, Hamer’s stand made the national leadership aware of a
constituency that would try to hold them accountable to a larger vision of justice. Hamer’s stand was an exhortation
as well as an implicit critique of King’s conception of representation and leadership. The role that Hamer played was exemplary of the

capacity for members of a mobilized constituency to change the rules of the game and to hold those who
would claim the mantle of leadership accountable. The test wasn’t whether King or the others could get the
national elite of the Democratic Party (the President, the Vice-President, their lawyers, and others) to yield some temporary power; it was
instead to suggest new reasons for why that elite was allowed to wield power in the name of those
who suffered for democracy and who, with their resistance to white supremacy, put the norms of the Equal Protection Clause into effect.
Hamer reminds us that King’s view of representation inhabits a dangerous territory to the extent that it
reflects a status to be defended more than a dynamic relationship defined by its sources of accountability and legitimized by
an accounting of the distribution of power. Where it is defined primarily as a status , representation misallocates power because it

misrepresents the authority of an organized constituency to sanction, define, and defend social
change. By characterizing this as misrepresentation, we mean that the relationship does not reflect the dynamic equilibrium of power that organized
constituencies bring to the representational connection. By inviting new sources of information, energy, and vigilance to the
making (and enforcement) of laws, these constituencies enhance the quality of democracy. In juxtaposing King’s ambivalence
with Hamer’s and Moses’s steadfastness, we see how social movement actors can tell a competing story of democracy that reframes the idea of participation, the
meaning of representation, and the sources of democratic authority. Hamer and the other MFDP delegates changed the idea of participation from an obligation to
obey to an obligation to speak out. They were no longer content to be the passive objects of power; they became
active subjects of legitimate authority. Hamer also embodied a different meaning of representation. Unlike King’s fundamental confusion as
to the source of his power and to whom he was obligated, Hamer rejected the offer of representation when it was presented

as a bribe of individual access dressed up as power. Hamer’s conception of representation bound her to
the community, which was a reservoir of their power, not hers. She knew that the source of her authority came
from the struggle of the activists in Mississippi, rather than the boardrooms of Washington or any other polished
corridor of power from which those activists, to be sure, would have been excluded. As a dynamic constituency, the MFDP was telling different stories: the meta
story, the micro story, and the resonant story. The meta story is the one that explains all the others. It is the story that lays out a conception of justice and translates
into one that others can hear and join.It invites their individual stories into a broader story. The micro story, by contrast, allows
individuals to tell their “own” story. The sharing
of these micro stories builds trust and provides motivation for action as
well as a willingness to assume agency. The resonant story frame—e.g., “all of us is tired”—gives ordinary people, as well as

sympathetic but non-movement listeners, a conceptual frame that can become part of the vernacular
understanding of justice.116 As a mobilized constituency, the MFDP challenged the idea of representation itself, asking fundamental questions about
who can speak for whom. However, the MFDP was not just telling stories of representation and accountability. The stories of its members also play an important
role in understanding the wellspring of movement “successes.” They illustrate the vital role of the MFDP as an alternative interpretative community that helped
drive rule shifts and changes in law. The MFDP—here exemplified by the person of Fannie Lou Hamer but also embodied in the actions of many of her cohorts—
helped create obligations, not just new incentives for those with formal power to change the rules. True,
their position did not result in a
wholesale change of the 1964 convention rules. But, as a result of their challenge to the justification for the
legitimate exercise of power, the formal rules of the Democratic Party ultimately changed because they excluded
large numbers of the Democratic Party base. The MFDP, as an alternative interpretative community and a constituency of accountability, also created pressure
external to the normal disciplinary techniques of access. The MFDP’s position provided the analysis that supported the organizing in Selma and elsewhere that
ultimately pushed both King and Johnson to assume greater leadership in getting the Voting Rights Act of 1965 passed.117 Although further organizing in Selma, in
particular, was central to this process, the
public challenge of the MFDP cannot be underestimated as an important
precipitant to this fundamental reallocation of power between the federal and state governments for
the supervision of voting rules throughout the South . With their protest at the Democratic National Convention the MFDP forced two
issues to the fore: (1) whether they would be granted a role in the national party that claimed to represent their interests, and (2) whether they would even be
allowed to vote as full citizens. The President and his party had to answer both questions . One could be elided with a deal and
“inside baseball,” but the other could only be answered with a commitment to changing the ways in which elections were constructed throughout the South. This

pressure and the amazing courage of the leadership from Mississippi and elsewhere, especially in
Alabama, moved activists to demand action, and the President could not give them an answer with
merely a personal assurance or a backroom deal. The marches in Selma and the blood spilled at the Edmund
Pettus Bridge flowing together with the blood of Jimmie Lee Jackson created a pressure the President could not deflect.118
When President Johnson told King that it was “too soon” for a Voting Rights Act, he had not anticipated both the
tenacity of those who wanted justice or the coiled violence of those who would deny it. He would have to
mobilize his renowned political powers to move Congress to give him and the people the change they demanded. Fannie Lou Hamer and her

MFDP associates exemplify an alternative but important source of lawmaking power that is not
controlled entirely by elections, legislatures, executives, or courts. 119 Just compare Joe Rauh’s combination of pragmatism
and grandstanding to Unita Blackwell’s sense of righteous indignation and Bob Moses’s commitment to nurturing local leadership. Importantly, as we shall also see
in the story of the Montgomery Bus Boycott, the fearless challenge to power by Moses, Hamer, and Blackwell helped change the background narratives of social life
against which authoritative expressions of law are placed. The local MFDP members also functioned as a constituency of accountability that the national Democratic
Party leaders could not ignore.
Utopian constitutional visions require continual doctrinal development that returns to
abandoned lines of historical analysis.
Tushnet, ‘18 (Mark Tushnet; William Nelson Cromwell Professor of Law, Emeritus @ Harvard University; Maurer School of Law @
Indiana University; Digital Repository Law Journal; Volume 1, Issue 1 of “The Future of the US Constitution: A Symposium;” “Utopian Thinking
for Progressive Constitutionalists;” https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11284&context=ilj; Winter
2018)//ILake-EF

we ought to develop utopian constitutional visions—constitutional interpretations not

So, in tandem with our advocacy positions,

likely to be adopted within the near future. Progressivism has many rooms, so there will be many utopian visions, and some may clash with others. Readers
can generate for themselves their own examples. For what it is worth, mine center around a nonracialized social democracy , and in the next pages I
sketch some aspects of what a utopian constitutionalism aimed at achieving such a social democracy might look like. But, I emphasize, this is only an example of what utopian constitutionalism

for progressives might look like, not a program for others to adopt.Consider first affirmative action as a means of getting beyond racism.8 When
originally adopted, affirmative action programs had a number of rationales. Prominent among them
were restorative justice (placing African Americans in positions as close as possible to the ones they would have had, had they not been blocked by racism ),
distributive justice (ensuring that shares of social goods are distributed as they should be in a non-racist society ), and reparations (repaying African Americans in
kind for material deprivations they and their predecessors experienced in the past). For all practical purposes the Supreme Court has driven these

justifications underground by defining them as insufficient to satisfy the demanding requirement that race-specific
programs be narrowly tailored to advance compelling governmental interests ; apparently, only “diversity” is an available
justification.9 The contemporary discourse of affirmative action has been shaped by the Court’s jurisprudence. So, for

example, progressives might explain how affirmative action in public contracting programs promotes diversity by bringing into

consideration ways of organizing construction work associated with minority contractors that might be overlooked without affirmative action.10 A utopian

constitutionalism of affirmative action would return restorative justice, distributive justice, and reparations to
their proper place in constitutional discourse. And, important scholarly work would be needed to do so. With
respect to distributive justice, for example, one would need to define the metric for measuring appropriate
distribution of social goods; with respect to reparations, one would need to figure out “tracing” rules forward
from those who were subject to racial discrimination in the past and backward from contemporary African Americans, some of whom are recent arrivals in the United States.11 Such

work was in progress when the Court constricted constitutional discourse about affirmative action. It needs to be
revived. Next consider the structure of political opportunities. Recently scholars of comparative constitutional law have written about “abusive
constitutionalism,” the use of constitutionally validated actions to transform liberal democracies into
something less.13 Progressives might adopt the term to describe a nation in which a political party engages in voter
suppression targeted at groups that disproportionately favor its opponents, develops gerrymandering programs aimed at entrenching their party’s control of
legislatures,14 enacts tax laws that punish residents of states where their political opponents dominate ,15 and structures a

system of financing political campaigns that stacked the cards in its favor 16—and gets a supreme court dominated

by judges nominated by presidents of that party to approve the entire program. Of course the Supreme Court’s cases leave room for progressives to
challenge specific aspects of this program.17 I focus on campaign finance because the pattern I described in connection with affirmative action can be seen in the campaign finance cases as
well. Supporters of stricter regulation of campaign finance began by claiming that a system regulated only around the margins promoted corruption of civic processes and tilted the playing

The Supreme Court described the latter claim as seeking the rough equalization of
field in favor of policies favored by the wealthy.

financial resources available to serious candidates, characterized it as “wholly foreign to the First
Amendment,”18 and eliminated it as a potential rationale for restrictive campaign finance regulation : Only reducing
opportunities for corruption could justify restrictions on campaign finance. Progressive advocates of restrictive campaign finance rules have worked within the “anti-corruption” rationale by

developing new and interesting accounts of corruption19—which the Supreme Court rejected.20 At this point, I think, only utopian constitutionalism points
the way forward. Progressives simply have to ignore the Court’s doctrine and return to the equalization
rationale for campaign finance regulation. And, as with affirmative action, returning to abandoned lines of thought will require
serious conceptual work. The idea of equalization is hardly transparent. No one could plausibly contend that every party that
qualifies for the ballot is entitled to exactly the same resources. How are we to measure “how much” money each candidate should be allowed
to raise? With reference to support in the polls? With reference to how many small contributions the candidate is able to garner? And, lying beyond all this is the

devilishly difficult question of regulating truly independent expenditures on behalf of a candidate .21
Hasbrouck’s limited proposals are not mutually exclusive with wholesale elimination,
but proof that further conceptual work is needed. The notion of badges and incidents
is both expansive and particular in what it encapsulates, thus requiring dedicated
scholarly work to build off the plan’s catalyst.
Carter, ‘07 (William M. Carter Jr., Professor of Law at the University of Pittsburgh School of Law, UC Davis Law Review, “Race, Rights, and
the Thirteenth Amendment: Defining the Badges and Incidents of Slavery”,
https://lawreview.law.ucdavis.edu/issues/40/4/articles/DavisVol40No4_Carter.pdf, 01-01-2007)//ILake-AZ

As the preceding discussion makes clear, there is general agreement in the cases and scholarship that the
Thirteenth Amendment
empowers Congress to prohibit what it rationally determines to be badges and incidents of slavery.
However, there is currently no consistent approach to determining the Thirteenth Amendment’s self-
executing scope that would comport both with the Amendment’s original purposes as well as a vision of the
Amendment as having continuing vitality. The strict textualist and separation of powers approaches would limit the
Amendment’s self-executing scope to literal slavery or involuntary servitude. This has the benefit of apparent simplicity, but is
unsupportable as a matter of originalism and contradicts or ignores the Amendment’s historical context ,
principles of judicial review, and Supreme Court doctrine regarding the relationship between Congress’s
Enforcement Clause power and the Amendment upon which such power is based. The expansionist approach
would hold that the badges and incidents of slavery remedy applies to any discrimination that is suffered
because of membership in any identifiable group. It is appealing as a matter of social justice, but is unworkable
because it admits of no limiting interpretive principle. It also minimizes the Amendment’s historical context and
marginalizes the reality of chattel slavery and its effects upon the enslaved and society by treating slavery merely
as a stepping stone to the admittedly laudable goal of combating all forms of inequality. Determining whether a particular
injury or form of contemporary inequality constitutes a badge or incident of slavery requires a
discourse about the historical facts of chattel slavery. Such a searching examination requires a concrete inquiry
into slavery’s systemic effect upon the descendants of the enslaved and the society that engaged in and was shaped by the practice
of human enslavement. I do not believe that the badges or incidents of slavery are limited to those practices or conditions that existed during
slavery. I do believe, however, that a badges or incidents of slavery claim must demonstrate some concrete
connection either to the effects that slavery had upon its immediate victims (African Americans) or
upon American laws, customs, or traditions. A. Justification for a Two-Pronged Approach to Defining the Badges and Incidents
of Slavery This Article advocates that the badges and incidents of slavery prohibited by the Thirteenth
Amendment be defined with reference to two primary issues: (1) the connection between the class to
which the plaintiff belongs and the institution of chattel slavery, and (2) the connection the
complained-of injury has to that institution. The paradigmatic badges and incidents of slavery claim
under this approach, therefore, would involve a plaintiff who is a descendant of the enslaved or who was
injured because of his perception as such 205 (e.g., an African American person) and who raises a claim attacking a
law, custom, practice, or condition that existed during slavery and was an essential aspect thereof. Thus, for example,
claims by African Americans attacking race-based peremptory jury challenges,206 racial profiling,207 hate
crimes,208 housing discrimination,209 inequality in the administration of criminal and civil justice, and systematic denial
of equal education opportunities would all fall comfortably within the theory articulated here. These situations all
involve forms of discrimination and subordination that provided essential legal and societal support for
slavery and were also part of de jure and de facto attempts to return the freedmen to a condition of servitude
and subhumanity after formal emancipation. 210 Once one moves beyond the paradigmatic cases — those cases where the
plaintiff is African American and asserts a contemporary injury that either existed in the same form during slavery or is closely analogous
thereto — it becomes more difficult analytically and historically to establish a badge or incident of slavery. Thus, if the plaintiff is not African
American, it becomes more difficult to prove, as a matter of “proximate cause,” that the injury is a badge or incident of slavery. Even
as to
non-African American persons, however, there may be particular injuries or forms of discrimination so
closely tied to the structures supporting or created by the system of slavery that the plaintiff’s personal
link to that institution becomes less determinative . Moreover, even as to African Americans, there may be injuries or forms
of discrimination that do not amount to a badge or incident of slavery. I provide examples of such situations below. B. Application of the Badges
and Incidents of Slavery Analysis Distinguishing between those instances of discrimination and subordination that have a “concrete connection”
to the slave system and those that do not is not an easy task and to some extent depends on case-by-case analysis. This Article, therefore, is
not intended to provide an exhaustive catalogue of every conceivable situation that might or might not constitute
a badge or incident of slavery. Rather, my goal is to reorient the Thirteenth Amendment analysis away from both
intentional disregard of the Amendment’s broad original purposes and from the type of overbroad
interpretation that is likely to render the Amendment meaningless in practice.

Our constitutional frame also goes beyond policing to include multiple caste
distinctions – that clears access to housing, employment, etc. which revitalizes
communities.
Pope, ‘19 (James Gray; Distinguished Professor of Law and Sidney Reitman Scholar @ Rutgers; “MASS INCARCERATION, CONVICT
LEASING, AND THE THIRTEENTH AMENDMENT: A REVISIONIST ACCOUNT”; 2019; New York Law Review, Vol. 94)

D. Mass Incarceration and the Badges and Incidents of Slavery Any Thirteenth Amendment challenge to the treatment of convicted offenders
necessarily raises two questions: First, does the challenged practice violate the prohibitory clause? And second, is the practice excepted from
the prohibitory clause by the Punishment Clause? Thus far, we have discussed the Punishment Clause issue only in relation to what would
otherwise be a clear violation of the prohibitory clause: prison servitude. But theThirteenth Amendment extends more broadly
to the so-called "badges and incidents of slavery." Under that doctrine, it reaches racial classifications and, arguably,
other caste distinctions that resemble race. 468 This raises the question whether, under a Republican reading of the
Punishment Clause, the Amendment might prohibit aspects of mass incarceration other than forced labor.
William Carter and Taja-Nia Henderson have suggested that the imposition of post-carceral disabilities such as felony
disfranchisement, employment discrimination, and housing discrimination constitute badges or
incidents of slavery. 469 As Henderson explains, such "collateral consequences" do not fall under the Punishment
Clause because it applies only to criminal sanctions and not to "civil, regulatory, or private discriminatory
treatment of formerly convicted people . ' 470 Accordingly, these scholars focus on the question whether collateral
consequences violate the prohibitory clause (Carter) or fall within Congress's power to enforce the Amendment (Henderson). Carter
suggests that the "status of having been incarcerated" functions as a badge of slavery, much as blackness
did in the antebellum South. Where non-whiteness formerly "defin[ed] one's status before the law for all time, with no possibility of
redemption as a member of civil society, ' 471 a record of imprisonment operates similarly today. The tainted individual
experiences what Gabriel (Jack) Chin has called "civil death," the loss of vital rights and protections taken for
granted by other citizens. 472 The result is "a permanent caste distinction of such magnitude and impermeability as
to arguably amount to a badge or incident of slavery . '473 In effect, the status of having been incarcerated might define a new,
functionally racial classification, as pithily suggested by the saying "orange is the new black." By limiting his challenge to collateral
consequences, Carter avoids a confrontation with the Punishment Clause. His legal theory could, however, extend to various carceral practices
as well if present-day Americans were to embrace the contemporary Republican reading of the Clause. As a practical matter, the
caste that
he identifies and challenges is formed not at the moment of release, when collateral consequences kick in, but at the moment
of conviction, when according to the contemporary Democratic reading now embraced by most courts-the
person loses protection against enslavement and involuntary servitude . Civil death follows immediately,
as the person becomes available for exploitation and degradation at the discretion of legislatures, administrative agencies,
and prison officials. Not only can they be forced to work, but they become a thing, a chattel, a tool to be used for the
benefit of others as a captive consumer, captive tenant, and ticket to public money.474 If they try to organize in response, they
face punishment. 475 Worse yet, year after year and decade after decade, judges deliberately and with the full panoply of law
sentence even petty offenders to confinement in facilities where they daily face a substantial risk of severe,
illegal violence. 476 Far from an anomalous departure from civilized norms, such violence has become-according to legal
scholar Ahmed White-"constitutive of the social order of the prison ," the "means by which authority, hierarchy, and privilege
are articulated among prisoners and between prisoners and their keepers. '477 The theory that convict race amounts to a badge or incident of
slavery raises questions beyond the scope of this article. The point here is simply that the Punishment Clause does not preclude its acceptance.
Under a Republican reading, convicted persons would be left with some quantum of rights that-at a bare
minimum-would enable them to challenge exploitative and degrading practices unconnected to the crime of
which the party has "been duly convicted. '478 If, but for the Punishment Clause, a given deprivation selectively imposed on convicted
offenders would constitute a badge or incident of slavery, then-under a Republican reading of the Clause-it would violate the Amendment
unless justified "as a punishment for crime whereof the person shall have been duly convicted." Official tolerance of private rape and assault,
for example, was integral to the masterslave relation (and thus arguably a badge or incident of slavery) and would be difficult to justify as a
punishment for crime.479

Radical visions of collective self-determination uplifts modes of community control,

reproductive autonomy, and restores protections against political domination.
Davis, ‘19 (Seth; Professor of Law, University of California, Berkeley School of Law; “THE THIRTEENTH AMENDMENT AND
SELFDETERMINATION”; 2019; Cornell Law Review Online Vol. 104: 88-113)

SLAVERY, SELF-DETERMINATION, AND THE THIRTEENTH AMENDMENT In a nutshell, the Thirteenth Amendment's prohibition of slavery might
play a role in constitutional arguments to the extent that the
denial of community control and collective self-
determination is a form of slavery or at least a badge or incident of it. That is not, of course, how the Court has
described slavery in its Thirteenth Amendment jurisprudence. But defining slavery to encompass the wrongful denial of
collective self-determination is as old as the American republic . Indeed, it is older than that. This Part first argues
that slavery in the American South involved the denial of Black self-determination . It then considers what the Thirteenth
Amendment's prohibition of slavery might mean as a result, particularly in matters of criminal justice and policing. In so doing, this Part
addresses some doctrinal challenges to Thirteenth Amendment arguments for Black collective self-
determination. A. Slavery and Self-Determination Slavery in the American South aimed to deny individual self-determination to Black
slaves and collective self-determination to Black communities. This subpart considers both forms of racial subordination, focusing upon the
latter. 1. Individual Self-Determination American slavery was a system of violent and racist subordination, supported by laws concerning
property and personhood, that treated slaves as instruments of slaveowners' wills. "When he told me that I was made for his use, made to obey
his command in every thing; that I was nothing but a slave, whose will must and should surrender to his, never before had my puny arm felt half
so strong."s3 So wrote Harriet Jacobs of the wrongs of slavery in the American South, into which she was born in 1813, and which she described
under the pseudonym Linda Brent. Slavery was a denial of individual self-determination , Jacobs wrote, one "terrible for
men," but "far more terrible for women." s4 Slavery denied Black men and women control over their working lives, their
education, and their freedom of movement., It also denied Black women reproductive autonomy; as Pamela Bridgewater
emphasized in her work on reparations for slavery, "a female slave did not have social or legal protection from rape,"
and a slave owner who "impregnated his female slave .. .simultaneously became the biological father and the legal owner of the child." 6
Against this backdrop, Bridgewater argued, theThirteenth Amendment may be read to prohibit "modern reproductive
abuses" that deny reproductive self-determination, such as criminal court orders requiring women to
implant birth control as a condition of probation.97 Thus, the Thirteenth Amendment may have implications for
criminal justice reform to protect individual autonomy. 2. Collective Self-Determination The Thirteenth Amendment may
also have implications for criminal justice reform to increase community control over policing. Slavery
denied not only individual autonomy, but also collective self-determination. "If anyone wishes to be impressed with the soul-
killing effects of slavery," Frederick Douglass wrote in his Narrative of the Life, "let him go to Colonel Lloyd's plantation and, on allowance-day,
place himself in the deep pine woods, and there let him, in silence, analyze the sounds that shall pass through the chambers of his soul, - and if
he is not thus impressed, it will only be because 'there is no flesh in his obdurate heart.' ' s8 As Douglass would later describe it,
Lloyd's plantation on the Eastern Shore of Maryland was "a little nation of its own, having its own language, its own rules,
regulations and customs" - not to mention its own police ., 9 There the overseer was "generally accuser, judge, jury,
advocate and executioner. " 60 Slaveowners and their apologists did not shy away from saying as much. "Slavery," the Virginian lawyer George
Fitzhugh wrote in 1857, "is an indispensable police institution." 61 The slaveholding South, he explained, was "governed just as those ancient
republics," that is, "by a small class of adult male citizens, who assumed and exercised the government, without the consent of the governed."
62 Slavery, as Fitzhugh well understood, was not just coerced labor, though it was that. Nor was it simply the threat of arbitrary,
absolute power, or the property laws that held one human being could own another.63 It also was a system of government that
denied the collective self-determination of the enslaved. We should, as Daniel Farbman has recently argued, see the
plantation as the quintessential local government of the slaveholding South . 64 Plantation government
"depended upon excluding black residents from the political community and creating an alternative method of
governance to control them."65 Slaveowners and their overseers investigated, prosecuted, and judged
"crimes." 66 They "taxed" labor, dispensed "benefits," and built infrastructure . 67 Large plantation owners often
codified their rules and regulations; in other words, they legislated. 68 And, of course, they policed. Nineteenth-century slave
narratives contain courageous tales of individual slaves determined to escape those police. Some are tales of families running to remain
together. William and Ellen Craft's Running a Thousand Miles for Freedom, for instance, tells the story of how they escaped from Georgia to the
Philadelphia as Ellen, who could pass for white, disguised herself as William's master so that they could travel freely. 69 Self-
emancipation was not simply an act of individual selfdetermination, however. Individual or familial acts of
resistance collectively "beat[] against and beneath the walls of slavery."70 In 1800, three brothers born into slavery in Virginia
planned an uprising against slavery; one of them, a preacher named Martin, "told the people that 'their cause was similar to [the]
Israelites"' who too fought for collective freedom. 71 A slave put on trial for insurrection in 1804, whose words were recorded but
whose name has been lost to history, testified, "I have nothing more to offer than what George Washington would
have had to offer, had he been taken by the British and put to trial by them. I have adventured my life in
endeavoring to obtain the liberty of my countrymen. " 72 Nat Turner's rebellion was originally planned for July
4, 1831, 73 fifty-years from the day the Continental Congress approved the wording of the Declaration of Independence. Forty-five years after
his escape from slavery, Frederick Douglass too reimagined the self-evident truths of the American Revolution. 74 In an 1883 address to the
National Convention of Colored Men in Louisville, Kentucky, Douglass echoed the Declaration of Independence: "We hold it to be selfevident
that no class or color should be the exclusive rulers of this country."7 5 Slavery, of course, had been precisely contrary to that self-evident truth,
as was the federal government's failure to make good on the promise of Reconstruction, a failure against which Douglass aimed his reimagined
Declaration. 76 The
Declaration of Independence reflected a tradition of political thought in which the denial of political
selfdetermination is a form of slavery. In its Address to the People of Great Britain, drafted in September 1774, the First
Continental Congress defined political domination as a form of slavery. 77 The occasion for this complaint was the
Quebec Act, which, among other things, eliminated religious tests for public office and sought to prevent further American encroachment upon
Indigenous lands in parts of what is now Illinois, Indiana, Michigan, Ohio, Wisconsin, and Minnesota. 78 As the Continental Congress saw it, the
Act had transformed Canada into a "fit instrument[] in the hands of power to reduce the ancient, free, Protestant colonies to the same state of
slavery with themselves." 79 Examples of this sort of rhetoric are easily multiplied from both sides of the Atlantic. Richard Price, the British
moral philosopher who, along with George Washington, received an honorary Doctor of Laws degree in 1781 from Yale College,80 wrote in
support of the American revolutionaries, arguing that the denial of political self-determination was a worse
form of slavery than "any slavery of private men to one another."8 ' Parliament had "usurped Power," one Bostonian complained in 1773,
and thus had put the colonies in a "State of Slavery."8 2 In Common Sense, the most widely-read pamphlet of the American Revolution
and one of the best-selling pieces of American literature, 3 Thomas Paine warned readers that "[t]he nearer any government
approaches to a republic, the less business there is a for a king," but "when republican virtue fails, slavery ensues."8 4
Slavery, in short, "was a central concept in eighteenth-century political discourse ."85 To be governed without
one's consent was to be a slave.8 6 Free nations, by contrast, were governed "according to their own mind." 8
7 The American revolutionaries who fought for the right to make their own laws and be ruled by them drew upon this widespread
republican tradition. In an 1845 address, Douglass drew upon this political tradition when he condemned American slavery to an
audience in Limerick, Ireland.88 American slavery, Douglass argued, involved a denial of individual self-determination.
A slave in America had no power to exercise his will-his master decided for him not only what he should eat and what he should drink, what he
should wear, when and to whom he should speak, how much he should work, how much and by whom he is to be punished-he not only
decided all these things, but what is morally right and wrong.8 9 And slavery was also a collective wrong: The United States, Douglass pointed
out, was "not a true democracy, but a bastard republicanism that enslaved one-sixth of the population."90 Contemporary republican
political theory takes slavery as a paradigmatic example of unjust domination. Slavery involves
instrumentalization, of course, in which one human being treats another as a means to satisfy their own ends.
91 And slavery violates what political theorists call the principle of noninterference: a slaveowner and his agents
interfere with a slave's free choices on a daily and violent basis. But, as republicans argue, slavery involves wrongful
domination even when it does not involve actual interference but simply the threat of an arbitrary
exercise of absolute power. "Everything must be absolute here," Douglass wrote of the plantation where he was enslaved, and "[t]he
very presence of [the overseer] Gore was painful."92 Domination exists when one person has the capacity to exert such arbitrary power over
another, even if the power is not exercised on any particular day or in any particular instance. 93 Slavery involves a wrong, however, even to
the extent that the law limits threats of the exercise of arbitrary power. Southern states' laws may have purported to place limits on
slaveowners' power in order to protect slaves' lives. 94 But a slave may be "recognised as a person" under the law and still remain a slave from
whom the law usurps "the compulsory power of directing and receiving the fruits of his labor."9g Wrongful usurpation involves the
displacement of another's activity and the imposition of one's own upon them. As Patchen Markell has argued, slavery entails usurpation:
"Slaves are dominated to the extent that they are subject to a power of arbitrary interference by their masters; they are usurped to the extent
that their involvement in this or that activity is interrupted or displaced."96 And just
as individual slaves in the American South
were usurped of the power to direct their own labor, so too were enslaved communities usurped of the
power of collective self-determination .

Civilian control of policing is a crucial step on the path to abolition – past failures don’t
account for institutional power-shifting.
Rahman & Simonson, ’20 (K. Sabeel; Jocelyn; K. Sabeel Rahman is an Associate Professor of Law at Brooklyn Law School and
President of Demos. He previously has been a Fellow at the Roosevelt Institute, Visiting Professor of Law at Harvard Law School (2017), and a
Fellow at New America; Prior to joining the Brooklyn Law School faculty in 2015, Professor Simonson was an Acting Assistant Professor of
Lawyering at New York University School of Law. Previously, Professor Simonson spent five years as a public defender with the Bronx
Defenders. She clerked for the Hon. Barrington D. Parker, Jr., U.S. Court of Appeals, Second Circuit; California Law Review, Vol. 108, 2020; “The
Institutional Design of Community Control;” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3575011)//ILake-EF

Part I put forth a particular vision of democracy , one echoed in current movement work, that emphasizes contestation and control over
drivers of structural inequality. But what would such a shift entail when it comes to on-the-ground governance

policies? In this Part, we seek a tentative answer to this question by focusing on institutional designs put forth by movement actors themselves. Movement
visions found in the contemporary push for “community control” over both policing and local economic development exhibit a rich ferment over questions of
power, democracy, and social change. These movement
visions exemplify a self-conscious effort among social-change activists to
connect deep engagement with the historical and structural drivers of racial and economic inequality to
novel demands for community control over these underlying structures . With policing, movement actors have focused not just
on top-down policy recommendations, for example, use-of-force policies, but also on creating civilian oversight institutions with real power to create policing policy
and discipline individual officers. The
quest is not community policing, or even civilian review, but rather civilian
control. Similarly, in battles over urban inequality, movement actors are beginning to experiment with measures
that do more than seek policy outcomes —such as increased developer investments in local neighborhoods or mandated “local hiring”
provisions— to develop governance arrangements in which communities themselves play a more direct role in controlling and monitoring development projects.
“Community control” is not in itself a new strategy; indeed, the 1960s and 1970s saw widespread calls for
community control from social movements aimed at combatting systemic racial and economic
inequality.91 And in the decade before the emergence of the Movement for Black Lives, Black organizers in the South resurrected the
idea of communal economic democracy in places like Jackson, Mississippi.92 But the last six years have seen

a resurgence in the demand for community control, buoyed in large part by the burgeoning strength of local
social movements in our “movement moment .”93 The respective pushes for community control over policing and over economic
development illustrate the ways in which local social movements seek not just to shift policy, but also to contest structure and power inequality. Indeed, they
suggest that from the movement point of view, to seek only input into policy, without power over it, is a hollow
approach to legal change. The local politics of these interventions also tell an important story. For it is at the local level that these
movements have been able to target a greater degree of political power and influence, both through grassroots
organizing and through connections to potential allies and interlocutors in city councils, mayors’ offices, and other positions of real authority. Thus, we reference the
city of Oakland in both the policing and development examples below; that is in part because the alignment of a reform-minded city council and mayor created an
opening for these kinds of demands to be taken seriously. At the same time, these strategies do not track partisan divisions; in some of
these cases, such as the battle for police reform in Chicago, movement demands for greater community
control are framed in opposition to liberal democratic leaders like Mayor Rahm Emmanuel. Indeed, one of the
lessons from our examples below is that to simply look at the winning institutional models that emerge from

democratic or left- leaning local governments is to miss out on the more radical nature of the movement -
driven institutional visions of power-shifting in local governance . At the center of the push for police accountability post-
Ferguson are social movement actors calling for the formation of new institutions that create communal power over policing policies and decisions. This push

for police accountability has gained incredible momentum in the last five years , as national attention to police violence
against people of color, especially African Americans, has sparked a public debate about police policies such as the use of deadly force94 and police surveillance of
Black and brown people.95 Since
2015, leaders at all levels of government have pushed for police reforms by, for example,
revisiting their use-of-force policies and shifting disciplinary processes for officers who use deadly force.96 But movement
actors are not just focused on changing policing policies, procedures, or laws; they are equally focused on transforming the landscape of power in policing. The
result has been a focus on the potential of a strong civilian control process. From Atlanta to Los Angeles to Houston to Nashville, activists have honed in on the
potential of civilian control of policing to promote racial justice beyond the acts of individual officers. Sometimes movements
have focused on the
creation of new civilian review institutions,97 and other times they have put forth scathing critiques of
existing institutions of civilian review.98 Activists behind all of these pushes have seized on the idea of community control of the police as a
potential lever of power-shifting. This push for civilian control of policing is intimately connected to concerns with

structural and historical inequalities in local governance. The Vision for Black Lives lays it out plainly: We demand a world where
those most impacted in our communities control the laws, institutions, and policies that are meant to serve us – from our schools to our local budgets, economies,
police departments, and our land – while recognizing that the rights and histories of our Indigenous family must also be respected. This includes...[d]irect
democratic community control of local, state, and federal law enforcement agencies, ensuring that communities most harmed by destructive policing have the
power to hire and fire officers, determine disciplinary action, control budgets and policies, and subpoena relevant agency information.99 Here the point is not
simply to revise police policies or push for constitutional policing, but rather to ensure “direct democratic community control” of law enforcement. These

groups are seeking freedom from the domination of their local governments and looking for power over
how it operates—not for the sake of control, but because shifts in power are necessary in order to push
back against the longstanding history of racialized state violence. For these groups, power, structure, and histories of
inequality are inseparable from one another.100 As two longtime activists explain, “[t]his is a call for Community Control over Police as a means of shifting power,
enforcing democracy, deconstructing the historic relationship between the police and the Black community, and re-imagining a social force designed to actually
This call for community control of the police is not new; it was the center
protect and serve its population as policy.”101

of the call by the Black Panthers and other radical activists of color in the 1960s to reclaim control of
their local governments.102 The heart of this historical push for Black community control was the idea that local police precincts should be
independent of elites who are elected or appointed at the city or county level, transferring power over policing to the people who interact with police officers every
day on the streets. This would simultaneously build political power and promote safety.103 Although few local jurisdictions in the 1960s actually implemented true
community control, a weaker form of “civilian review” of police disciplinary decisions did spread as a method of police reform.104 In
Berkeley,
California, for instance, voters in 1971 rejected a community control referendum by a two-to-one
margin but two years later approved a referendum for a “Police Review Commission” with independent
authority to investigate police complaints. 105 Overall, localities did not implement “community control”;
instead, they created institutions of “civilian review” that largely kept power in the hands of the police
and city or county officials.106 By the end of the twentieth century, civilian oversight had become a significant feature of much policing in the United States, with
eighty percent of large police departments having some form of oversight.107 This
vision of civilian review usually comprises civilian
commissions reviewing complaints about individual officer misconduct and participating in some way in the decision
whether to discipline the offending officer.108 In practice, however, the civilian review boards that emerged in the 1970s and then replicated throughout the
country were notoriously ineffectual,109 and their influence waned with the rise of “community policing” in the 1980s and 1990s.110 In a 2016 study, Udi Ofer
found that of the nation’s fifty largest police departments, only twenty-four had a form of civilian oversight of the police, and of those, all but nine had a majority of
the board nominated or controlled by the mayor or the police chief.111 In recent years, though, many jurisdictions have placed renewed emphasis on reforming or
designing new police accountability institutions with civilians at their helm. And social movement actors have been at the forefront of pushing for civilian control—
for true power over policing, rather than just input into it.112 In what follows, we highlight two recent debates over local ordinances to create civilian oversight of
the police that exemplify this focus in jurisdictions with longstanding policies of “community policing.” The first, in Chicago, reveals a contrast between a liberal view
of civilian oversight that prioritizes conversations with communities—but leaves policymaking to technocrats—and a movement-driven vision that truly shifts
power. And the second, in Oakland, demonstrates how movement actors are pushing their local governments to think carefully about who “the people” are when
transferring power to civilians.

Reinterpreting the Thirteenth Amendment is an example of abolition

constitutionalism – instead of remaining loyal to constitutional jurisprudence, the aff
uses the document instrumentally to further non-reformist reforms with the end of
guiding a society where prisons are obsolete.
Roberts, ‘19 (Dorothy E. Roberts; an acclaimed scholar of race, gender and the law at the University of Pennsylvania in the Departments
of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair;
“Abolition Constitutionalism The Supreme Court 2018 Term: Foreword”, Harvard Law Review, Vol. 133, No. 1, p. 1, Nov. 2019;
https://heinonline.org/HOL/Page?handle=hein.journals/hlr133&id=8&collection=journals&index=; JB)

III. TOWARD A NEW ABOLITION CONSTITUTIONALISM We

can see constitutional history after the Reconstruction Amendments as a
contest - in legislatures, courts, and the streets over interpreting the Amendments as either moving toward or
retreating from slavery's eradication. Because we can read the Reconstruction Constitution as
incorporating the abolition constitutionalism of antislavery activists, 6 5 2 we should reciprocally interrogate
both the Constitution's relevance to today's prison abolition movement and the movement's relevance to interpreting the Constitution's

provisions. Just as antebellum abolitionists broke from the dominant interpretation of the Constitution as a

proslavery document, 653 so too prison abolitionists need not be shackled to the prevailing constitutional
jurisprudence in advancing the unfinished freedom struggle . Engaging the relationship between prison abolition and the
Reconstruction Amendments, as well as the abolition constitutionalism that inspired them, raises several generative questions. Can we apply prison abolitionist
theories to the Constitution's text not only to condemn it but also to use it instrumentally to achieve abolitionist objectives? Can we advocate for a reading of the
Constitution that both aligns with the abolition constitutionalism advanced by antislavery activists and attends to contemporary forms of white supremacy and
racial capitalism? In the process, might today's abolitionists imagine a new abolition constitutionalism that helps to chart the path toward a society without prisons?
A. Approaching the Constitution Instrumentally One reason some prison abolitionists eschew any reliance on
the Reconstruction Constitution to make claims or envision change is that they see the text itself as accommodating
slavery. Many abolitionists explicitly condemn the Thirteenth Amendment's Punishment Clause for allowing the
reenslavement of black people by incarcerating them for committing crimes . 6 5 4 "One of the big reforms that sold us
out was the Thirteenth Amendment" is a common accusation among prison abolitionists.655 The Reconstruction Constitution "just modified" slavery; it did not
abolish it.656 According to this view, the Thirteenth Amendment was part and parcel of the white supremacist backlash against Emancipation. Its very text
contained the seeds of reinstating the formerly enslaved to servitude from the moment Congress enacted it . Congress
gave the impression of radically incorporating black people into citizenship when in fact it was preparing a way to legally deny them their rights. "The

Thirteenth Amendment ensnares as it emancipates," Professor Joy James writes . 657 "In fact, it functions as an
enslaving anti-enslavement narrative."*6 5 The symbolic power of the Reconstruction Constitution as an abolitionist text that

installed freedom thus adds to the Constitution's ability to sustain a false narrative of the U nited States as a bastion

of freedom and equality.6 5 Embracing such a document would therefore only contribute to its anti-abolitionist
performance. Thus, although many prison abolitionists describe their work as continuing the struggle antebellum freedom fighters and
abolitionists began, they frame it in opposition to the Reconstruction Constitution . 660 A second reason some prison

abolitionists reject the Constitution is that they view the entire U.S. legal system as subordinating black
people and preserving the racial capitalist order .66 1 This position relies not so much on the Amendments' precise language as on the
political role the Constitution, as a central part of the state's legal apparatus, plays in upholding the carceral regime. According to these theorists, states use

the law to perpetuate their own institutions, and constitutional change within formal legal processes occurs only to
maintain the look of legitimacy.6 6 2 If abolition work can only be completely effective "without involving the state," 663 there may be no role for the
Constitution to play. Indeed, the very project of abolition constitutionalism could be antiabolitionist. James combines both these points by

explaining how the Reconstruction Amendments helped to place the state in opposition to the abolition
of white supremacy.664 She contrasts the abolition democracy advanced by black radicals with the "advocacy democracy" promoted by a "U.S.
 James
conservative-centrist-progressive" political system that "works for reforms with an anti-black racism that structured democracy's evolution." 665

connects the founding of the nation to the Reconstruction Amendments, understanding both as part of a
continuum of anti-abolitionist developments: "an anti-abolitionist revolutionary war that blocked the expansion of the 1772 Somerset
ruling (emancipating a black slave brought to Britain from colonial America); an anti-abolitionist 13 th [A]mendment that codifies slavery to prison; an anti-
abolitionist 4 th [A]mendment that transfers black political personhood (and social standing) to corporations." 66 6 Moreover, the courts, which have been the
traditional venue for making constitutional claims, are the very state agents that have eviscerated efforts to install a more radical Constitution and have been hostile
to an abolitionist approach.667 Radicals of color have criticized the presumption in constitutional theory that "minorities are best protected with national oversight,
rights-based frameworks, and judicial solicitude." 6 6 For this reason, many abolitionists have repudiated U.S. constitutional rights altogether and instead contest
U.S. carceral policies without reference to rights or as violations of international human rights. 669 Even claims that rested in part on the U.S. Constitution have
primarily relied on international human rights law, such as the petition brought to the United Nations by the Civil Rights Congress in 195 ' that charged the U.S.
government with racism and genocide. 67 0 This
Foreword takes seriously the question whether engaging with the
Constitution, which from its installation has served settlercolonialism, slavery, and racial capitalism, can be
useful to an abolitionist movement. As discussed in Part II, the dominant reading of both the original Constitution and
Reconstruction Amendments has been antiabolitionist .67 1 There are good reasons, however, for prison
abolitionists to engage abolition constitutionalism . First, it is significant that the original Constitution that
incorporated slavery was rewritten to abolish it in response to a hard-fought freedom struggle. Many
antislavery activists, like Frederick Douglass, professed an alternative reading of the Constitution - an abolition
constitutionalism. 6 2 We can see the Reconstruction Amendments as a compromised embodiment of the
unfinished revolution for which abolitionists today continue to fight. Like antebellum abolitionist theorizing, prison
abolitionism can craft an approach to engaging with the Constitution that furthers radical change . Second,
prison abolitionists acknowledge that building a prisonless society is a long-term project involving incremental
achievements. As Critical Resistance puts it, abolition "means developing practical strategies for taking small steps that
move us toward making our dreams real and that lead us all to believe that things really could be different."67 3 Some of those
steps will entail engaging with the state. 67 4 In demanding state action that promotes prison abolition,
abolition activists can use constitutional provisions instrumentally to assert and sometimes win their claims
Finally, prison abolitionists need not let the Constitution compromise their principles or aspirations. While
taking inspiration from antislavery abolitionists, we can approach the Constitution differently . For example,
although the Radical Republicans opposed chattel slavery and convict leasing, they did not abolish imprisonment as a punishment for crimes. Today's prison
abolitionists are dealing with a different beast - the prison industrial complex and other modern carceral logics, supported by advanced forms of racial capitalism.
There are also new theories that explain and contest modern modes of carceral punishment, including black
radical philosophy, critical race theory, black feminist theory, and intersectionality .6 5 Davis frames prison
abolition as a continuation of the antislavery movement , but she notes an important distinction between the two: "[T]he abolition
of slavery was accomplished only in the negative sense," she writes. 67 6 "In order to achieve the comprehensive abolition of slavery - after the institution was
rendered illegal and black people were released from their chains - new institutions should have been created to incorporate black people into the social order."67
7 Prison abolitionists can affirm the aim of antebellum abolitionists to radically dismantle the institution of
slavery and also demonstrate, with the benefit of historical hindsight and sustained abolitionist theorizing,
that this objective requires abolishing prisons altogether by replacing them with new institutions that
incorporate black people fully into a free society . The goals of freedom and equal citizenship have been "the heart of black Americans'
fidelity to the Constitution." 678 In a previous analysis of black people's approach to the Constitution, I distinguished between a presumption of

inherent loyalty to the Constitution and the instrumental use of the Constitution to achieve a more
important objective.67 9 I argued that black people have historically expressed fidelity to the Constitution
because it offers "practical advantages" to their struggle for equal citizenship . 6 0 Under this instrumental
approach, equal citizenship does not arise from the Constitution; it precedes it . The Constitution is not
the standard of justice we should faithfully uphold; equal citizenship is. We know what democracy means not by immersing ourselves in the
Constitution's language but by imagining what it would mean for black people to be treated like free and equal human beings. The purpose of

constitutional fidelity is to insist that constitutional interpretations abide by this higher standard of justice. "In short,
fidelity is a means, not an end, and it is a means to an end that is more fundamental than the Constitution." 61 Abolition constitutionalism, unlike

other constitutional fidelities, aims not at shoring up the prevailing constitutional reading but at abolishing it and
remaking a polity that is radically different . Prison abolitionists can follow this tradition by instrumentally
using the Constitution to build a society based on principles of freedom, equal humanity, and democracy - a
society that has no need for prisons. In this section, I explore how prison abolitionists might instrumentally use
the Constitution to make persuasive arguments for change and to achieve nonreformist abolitionist
reforms that would eradicate or shrink discrete components of the carceral punishment system,
mitigate the suffering caused by carceral conditions, and create the conditions needed for a society without
prisons. I also consider the possibility that, in the process, prison abolitionists might imagine a new constitutionalism based
on the society they are working to create. In other words, a new abolition constitutionalism would not serve to sustain
and improve the U.S. state and its carceral systems. Rather, it would serve to guide and govern a society in the making

where prisons are obsolete. I. Holding Courts and Legislatures to an Abolitionist Reading. Black Panther Party activist and author George
Jackson, a leading figure in the prison abolition movement, 68 2 called for "the gracious, sensitive, brainy types . . . to hold the
legal pigs to the strictest interpretation of the Constitution possible ." 6 3 Surely Jackson wasn't upholding the
U.S. Constitution as a beacon for a radical movement or expressing faith in judges to apply it for the sake of black

freedom. Indeed, he was forced into the courtroom he then used as a platform to put American justice on
trial.6 84 But Jackson didn't throw out the Constitution either . Rather, Jackson was deploying it strategically as
a legal, ideological, and rhetorical tactic to expose the hypocrisy of his imprisonment and the prison
system's reenslavement of black people. 6 5 Jackson's demand for the "strictest interpretation of the Constitution
possible" 6 6 might be seen as holding courts to the abolitionist reading of the Constitution envisioned by
the antislavery activists who inspired the Reconstruction Amendments. 67 Beginning in the 1960s, prisoners

have asserted legal claims based on the Constitution to challenge their incarceration and the conditions of
their confinement.6 8 8 The 1964 case Cooper v. Pate,689 which held that prisoners could bring constitutional challenges against prison officials in federal
court,690 fueled a prisoners' rights movement that relied largely on civil rights lawsuits. 6 91 According to Professor Robert T Chase, incarcerated people
immediately took advantage of the opportunity to bring constitutional claims: "[T]he number of prisoners' rights suits dramatically increased from 218 in 1966 to
almost 18,477 in 1984. Between 1970 and 1996 the number of prisoner civil rights lawsuits leaped an astonishing 400 percent." 6 92 Prison activists in the 1960s
and 1970s mobilized around the prisons-as-slavery metaphor, but did not see it as reason to reject using constitutional provisions as a means to advance their
activism.6 93 The prisoners' rights movement achieved a major victory in the class action lawsuit Ruiz v. Estelle,694 filed in 1972, which sought numerous changes in
the Texas prison system, including alleviating overcrowding, improving health care, increasing access to attorneys, and ending the practice of having prisoners act as
guards, which had created a system of sexual violence within prisons. 695 In 1980, two years after the trial began - making it "at that time the largest and longest
civil rights case in the history of American jurisprudence" 696 - Chief Judge Justice found the Texas prison system unconstitutional. 6 9 7 However, in the decades
The history
since Ruiz, the Texas prison system has continued to cage increasing numbers of people under conditions that have not changed dramatically.6 9"

of instrumental litigation of constitutional claims by the prisoners' rights movement demonstrates both
the utility of making constitutional law part of abolitionist activism and the inadequacy of relying on legal institutions to create
and enforce effective remedies. Prison abolitionists still frequently make constitutional arguments from behind bars . 6

99 Many prisoners writing in the publications of Critical Resistance, including its journal, The Abolitionist, state their claims in the

language of constitutional rights. They have argued, for instance, that the parole system violates the Due Process
Clause, 0 0 or that prosecutors' exclusion of black people from juries violates the Sixth Amendment . 0 1 They

have encouraged citizens to learn and understand their full rights under the Constitution, 7 0 2 and have
supported suing prison officials for constitutional violations .7 03 For these prison activists, asserting their
constitutional rights constitutes both a pragmatic use of legal tools to win release or change carceral
conditions and an empowering rhetorical demand for legal recognition .7 04 As George Jackson's appeal to "brainy
types"s05 suggests, lawyers and legal scholars can play an important role in helping to articulate and present the

demands of people subjected to carceral punishment for strict adherence to the Constitution's
abolitionist directives - even when they anticipate failure .7 06
Prioritize tearing down the carceral state and reinstating forms of anti-subordination –
self-rule domestically allows us to confront global militarization.
Rana, ‘11 (Aziz; Law @ Cornell; The Two Faces of American Freedom; p. 329-336)
the present moment is not without its resources for confronting both the internal decline
Even with such developments, however,

of free citizenship and the globalized commitment to pacification . And these resources are closely tied to the politics of inclusion and its implications in the post-New Deal

the vision of more robust equality has never entirely died

order. This is because previous . In fact, recent reform efforts have had a second and competing trajectory, although this trajectory

For radical reformers, inclusion required overcoming the general reduction in the meaning of
is often obscured at present.

citizenship and thus recovering the historic project of independence-only now expanded to incorporate
everyone this meant fundamentally dismantling the structures of authority at home and abroad
. In the process,

that undermined self-rule and rnade free citizenship impossible . At its most expansive, the American civil rights movement of the 1950s and 1960s in particular combined
arguments about internal freedom and external power, while at the same time claiming a popular capacity to speak for the common good. This often-submerged legacy of the movement hints at the continued potential for thinking systemically about today's problems. It also provides the

the American practice

connective historical link between nineteenth-century mass mobilization and reform projects in the present day, which similarly would seek to defend a universal and nonimperial ideal. Despite the demise of settler empire,

of international police power and global primacy persists in treating outsiders as instruments for the
achievement of national ends . In the nineteenth century, these ends took the form of rich internal accounts of liberty and political possibility. Now, however, they increasingly appear to be domestic security as such and the indefinite

the U S orientation to the world combines some of the most problematic ideological
protection of American status. In effect, nited tates'

features of the settler past without its emancipatory aspirations

. It continues to view outsiders-including immigrants within our borders-as part of a dependent periphery, to be used for the extension of national wealth and dominance. Yet these practices have become detached from the meaningful provision of economic and political self-rule for
Americans. In a sense, the key challenge for the present is to invert such developments, to revive accounts of self-rule, and to dissolve their connections to external subordination at home and abroad-to make freedom truly universal. These final pages employ arguments from the civil
rights period to draw out the contemporary implications of this project and to suggest current possibilities for connecting efforts at inclusion with a broader revision of the substance and goals of collective membership. The Two Civil Rights Movements Since the entrenchment of the New

the civil rights movement has embodied the most sustained effort to revive both the vision of liberty
Deal order,

as self-rule and to connect this vision with a critique of empire. Today this legacy is almost entirely forgotten, in large measure because the mid-twentieth-century struggle for

On the one hand, efforts to end racial segregation and formal legal discrimination
black equality always had two conflicting dimensions.

sought to incorporate blacks fully into American projects of hegemony abroad and security at home . They
emphasized social mobility for middle-class blacks and inclusion for some into arenas of corporate, professional, and political power. These features are perhaps most tellingly illustrated by the legal prong of black attempts to end racial inequality. The best-known civil rights litigation of
the 1950s involved segregated primary schools, but the earliest test cases of the National Association for the Advancement of Colored People (NAACP) focused on postgraduate professional study-especially law school. One of the first serious victories in the NAACP legal strategy was
1938's Missouri ex ref Gaines v. Canada, which held that Missouri violated equal protection guarantees by failing to provide in-state law school education for black students. A decade later, Sweatt v. Painter (1950) went further, holding that individuals could in no way be denied access to
law school on the basis of race.1 For these NAACP lawyers, equality was crucially about winning for blacks the opportunity to achieve professional status and to participate at the highest echelons of corporate and political leadership. In the mid-1960s, in the wake of tremendous popular
unrest and mobilization across the American South, President Lyndon Johnson pressed Congress to end legalized segregation and to provide all blacks with voting rights. In many ways, these reforms embodied a choice by white politicians at the national level to protect New Deal

such reforms sought to preserve American

liberalism by removing the eyesore of southern segregation and by making regional practices consistent with those prevailing elsewhere in the country. In other words,

domestic economic and political stability while strengthening U.S. moral standing internationally . This essentially
preservative role was shared by many in the black middle class, who had long viewed the civil rights struggle in terms of liberal inclusion and elite social mobility. In fact, much of the traditional leadership within the black community was opposed to combining a critique of legal
discrimination with either more extensive domestic reform initiatives or with challenges to U.S. global power, particularly in the context of Vietnam. For instance, Whitney Young, the head of the Urban League, warned activists at the NAACP's 1966 convention that the League would
denounce any groups that tied issues of "domestic civil rights with the Vietnam Conflict."2 The long-term victory of these voices within the civil rights movement not only has set the terms for today's discussions of race but also has shaped the very meaning of those previous struggles and
therefore our political inheritance as Americans. In particular, it has meant that goals of black equality in the United States are largely disconnected in the political imagination from broader independence struggles in Asia, Latin America, and Africa. Racial equality is understood as a
specifically American project of integration, one that primarily consists of providing worthy elements within the black community with an equal opportunity to achieve professional and middle-class respectability. There is no doubt that this project has brought with it clear benefits,
especially the steady reduction of those everyday forms of humiliation-from name calling to formal discrimination and random violence-that historically marked the black experience. Yet the focus on incorporating black elites into the structures of American authority has also come at a

ignoring our most recent collective attempt to create a truly inclusive community
clear cost. It has involved nothing less than

premised on democratic selfrule to imagine inclusion as a call to elevate everyone to the status of free citizens. For many civil rights activists, the goal of popular mobilization and the hope embedded in the project of black

simply eliminating legal segregation would not alter the

emancipation lay precisely in the fulfillment of this vision. At the end of his life, W. E. B. Du Bois warned civil rights leaders that

position of subordination economic and political confronting most blacks. Shortly before leaving for exile in newly independent Ghana, Du Bois told a college audience in North Carolina that although the United States was "definitely
approaching . .. a time when the American Negro will become in law equal in citizenship to other Americans," this represented only "a beginning of even more difficult problems of race and culture." Ending formalized inequality was only a prerequisite for creating a community grounded
in the substantive freedom of its members. Such freedom required challenging corporate and governmental hierarchies, which denied most individuals, regardless of race, economic independence and daily control over their work life. Only if these hierarchies were dislodged would

Du Bois directly tied this project of freedom at home to

Americans finally "restore the democracy of which we have boasted so long and done so little."3 Moreover,

confronting empire in all its manifestations including informal control , the persistent and modes of external wielded by powerful states. Du Bois understood the black
experience in the United States as a particular variant of Europe's larger colonial legacy and thus believed that any meaningful commitment to eliminating the vestiges of colonialism meant supporting its elimination everywhere. It was no accident that Du Bois chose to live the remainder
of his life in Nkrumah's Ghana, as a symbol of antiimperial unity. DuBois hoped that blacks in the United States would take the lead in reshaping America's position in the world and in making common cause with colonized peoples throughout the globe to alter their conditions of political
and economic dependence. In the words that echoed the United States' own postcolonial founders, he imagined a truly free Africa, which "refuse[d] to be exploited by people of other continents for their benefits and not for the benefit of the peoples of Africa" and that would "stress
peace and join no military alliance and refuse to fight for settling European quarrels."4 One leader who not only heard Du Bois's call but struggled to situate it as the basis of an organized social movement-capable of standing as a government behind the government-was Martin Luther
King Jr. Today King is widely viewed as the patron saint of civil rights activism, conceived largely as an effort to end legal discrimination and to provide upwardly mobile blacks with an equal opportunity to achieve social power. However, his actual views and those of many of his supporters

King argued
were far more expansive. In King's final book before his death, Where Do We Go from Here? (1967), he explicitly joined his vision of liberty to the universal republican ideals of radical Populists and Progressives. that the black condition in the United States

black
was that of "educational castration and economic exploitation" and that overcoming racism required more than merely ending formal segregation; it entailed "a radical restructuring of the architecture of American society." According to him,

subordination drew sustenance from the same forces that concentrated wealth and political control in
fewer and fewer hands while justifying the permanent global extension of America's military footprint . In his

the " evils of racism, poverty and militarism " were deeply intertwined and had to be overcome by
view,

actions that addressed both American international police power and the domestic elimination of
popular authority The first challenge was not to assert a particular programmatic agenda but rather
.5 for King
to reclaim collective agency eroded by the rise of centralized corporate and state institutions
, . He hoped that the civil rights

without such a social base, government

movement would develop new organizational means by which a constituency within society could be permanently mobilized to wield democratic control. He argued that

would "elude our demands" and that whatever measures it passed would be for "use as supplicants"
rather than products of a self-actualizing public will. According to him, for democracy to exist in practice, there had to be more than regular elections; individuals had to participate directly in shaping
collective life. As King wrote, "We must develop, from strength, a situation in which the government finds it wise and prudent to collaborate with us." In a sense, he hoped that civil rights groups and their supporters would replace the nineteenth-century laboring community as the stand-

in for the public writ large. Rather than relying on the presumed virtue of those in power, or "wait[ing] passively until the administration had somehow been infused with .. .

blessings of goodwill," such mobilized agency would direct politics to conform to ideals of selfrule . Like the old collectivity of farmers and wage earners, this new
constituency had the potential to connect its particular interests-in economic and political freedom-to the interests of all. It thus could serve as a voice of popular power, compelling state and economic elites to impose needed structural changes. 6 Like Weyl, King outlined these changes
by beginning from the recognition that American society was marked by tremendous abundance; in fact, the black position in the United States was that of "poverty amid plenty." As such, it was time to abandon prevailing efforts "to compress our abundance into the overfed mouths of

, social wealth should be employed

the middle and upper classes until they gag with superfluity." Instead not simply to free individuals from the most extreme forms of immiseration but also to establish
the conditions for everyone to enjoy creative and meaningful work. In calling for the abolition of poverty, especially through measures such as a guaranteed income for
all, King did not see the provision of economic security as an end in itself. Rather, he imagined it as an essential requirement for a society committed to making labor an activity of personal fulfillment-or, as Kallen would have phrased it, to transforming labor into leisure. To this end, he
quoted at length from Henry George's Progress and Poverty (1879), a classic text of the nineteenth-century's robust populist tradition: The fact is that the work which improves the condition of mankind, the work which extends knowledge and increases power and enriches literature, and
elevates thought, is not done to secure a living. It is not the work of slaves, driven to their task either by the lash of a master or by animal necessities. It is the work of men who perform it for their own sake, and not that they may get more to eat or drink, or wear, or display. In a state of

precisely
society where want is abolished, work of this sort could be enormously increased. For King, as for Henry George before him, freedom entailed both economic self-rule and practical political control through mobilized and assertive social constituencies.? Moreover,

because of the historic black position of exclusion, King saw any project of emancipation as admitting no
color line or national barrier . At home this required imagining the civil rights movement as properly a poor people's movement that incorporated blacks, impoverished whites, and immigrant communities (particularly from South and
Central America). Since each group found itself denied both the benefits of economic independence and basic political authority, according to King, "only through their combined strength" would it be possible "to overcome the fierce opposition we must realistically anticipate." 8

seeing the interconnections between inequality at home and

Internationally, King's commitment to self-rule meant following in Skidmore's and Bourne's footsteps and

continuing practices of global expropriation . In King's view, "Equality with whites will not solve the problems of either whites or Negroes if it means equality in a world stricken by poverty and in a universe

King wrote
doomed to extinction by war." In the context of the Cold War, he considered the ideological power of communism as in large measure a product of Western efforts to sustain systems of formal and informal rule across much of the globe. , "Communism is a

Our only hope today lies in our ability to recapture the

judgment on our failure to make democracy real and to follow through the revolutions that we initiated.

revolutionary spirit and go out into a sometimes hostile world declaring eternal opposition to poverty,
racism, and militarism this meant two basic transformations in American foreign policy.
."9 In practice First, it entailed

repudiating the emerging modes of global authority which , ,j

ust as Nkrumah had worried, undermined the formal sovereignty of newly independent states and reduced large swaths of the global south to the de facto control of
external forces . King saw the legacy of the Monroe Doctrine in Latin America as "tremendous resentment of the United States," resentment motivated by permanent U.S. interference with local economic and political practices: The life and destiny of Latin
America are in the hands of the United States corporations. The decisions affecting the lives of South Americans are ostensibly made by their governments, but there are almost no legitimate democracies alive in the whole continent. The other governments are dominated by huge and

American complicity in local authoritarianism

exploitative cartels that rob Latin America of her resources while turning over a small rebate to a few members of a corrupt aristocracy. 10 According to King,

and economic expropriation was ultimately due to its commitment to maintaining an international
police power. the key transformation needed in American foreign policy involved the
As a consequence, second

ideological rejection of such interventionism and the dismantling of the global military footprint that
supported it American
. This police power asserted the right to intervene whenever and wherever the United States believed that democratic order was imperiled. King contended that, rather than promoting actual self-determination,

actions had the tendency to freeze disputes in ways that undermined lasting resolution or served
external interests rather than local publics They also propped up regimes with little internal legitimacy, .

which meant that these regimes could stay in power only with the continual investment of yet greater
economic and military resources. King saw American support for apartheid governments across southern Africa-through corporate capital investments, trade, and defense alliances-as stark proof of how international police power,

of this American orientation to the world

and its stated aims of promoting peace, had been transformed into an instrument of popular suppression. For King, the most explicit consequence was that, rather than

ultimately justified greater military adventurism treated local communities as means to

creating an actual condition of peace, it . It

the end of U.S. ideological ambitions and as instruments for the perpetual extension of global power .

Precisely because of the need to overcome international disorder no matter where it existed, the United
States was trapped in a project of endlessly extending its geographic footprint and defense
commitments . According to King, such realities underscored how "the leaders of nations again talk[ed] peace while preparing for war." 11 It also meant that America found itself, as in Vietnam, forever subject to local insurrections and new potential dangers,

the logic of the United States' military

which in turn warranted even greater military spending and territorial presence. In his view, as in the view of republicans dating back to Harrington,

infrastructure brought with it the steady reduction of economic and political freedom at home It .

necessitated the centralization of power and entailed that America's unprecedented social wealth be
diverted from its appropriate task-creating an inclusive community committed to economic
independence and the democratic elevation of all its members King . Looking at an America marked by internal inequalities and external interventionism,

remarked A nation that continues year after year to spend more money on military defense than on
,"
programs of social uplift is approaching spiritual death. , his account of universal republican " 12 In the years since King's death

freedom has been ignored in the public discourse

-let alone his stark warning to fellow Americans- more or less . While King is deified as a twentieth-century hero, one to stand alongside the founders, his

The notion of tying

actual views are quietly discarded. To the extent that the civil rights agenda is pursued at all, it mostly involves further incorporating black elites into the institutions of American economic and political power.

economic subordination within the United States to global patterns of inequality, let alone the
democratic ideal of a permanently mobilized social agent, is hardly ever broached it is precisely this . Nonetheless,

vision that holds out the possibility of restructuring collective institutions and of combining a mass
politics of inclusion with a broad-based commitment to self-rule at home and abroad . Humanitarian Imperialism, Immigration, and the

What spaces exist or

American Periphery King's vision, as well as the more expansive legacy of the civil rights movement, raises a basic question for the current moment. not only for locating arguments about dependence but also f

developing the popular potential to confront prevailing frameworks this question involves ? Answering

imagining an ideal of self-rule linking the concrete material interests of

the social constituencies and reform initiatives capable of pursuing . It therefore means

specific groups to the larger common good and thus showing how experiences of inequality or
subordination illuminate a more pervasive social predicament . In partie- ular, it involves addressing today's twin realities: the retreat of robust ideals of collective possibility and

American power
the seemingly permanent expansion of now disconnected from internal freedom as self-rule continues
. This power, although ,

to generate relations of external control as well as to justify the near limitless growth of presidential
authority These external relations both instrumentalize outsiders and transform U.S. dominance into an
.

end in itself. Such realities are most strikingly highlighted by the dramatic alteration in the place of immigrants in collective life, from co-ethnic participants in settler empire to nonwhite members of a dependent periphery-one that exists even within our borders. In

sustaining the expansive civil rights legacy means confronting this

a sense, with the fact. It also suggests a new politics of inclusion, one

potential to rehabilitate self-rule as a guiding social commitment general and . As I noted in the book's opening pages, for many across the world, particularly in the global
south, political contests in the United States are followed not simply for entertainment. In very real terms, shifts in America carry with them shifts in local conditions. Through the selective and adaptive use of economic aid, trade agreements, and military assistance, U.S. power since
World War II has operated on a continual basis to intervene in the affairs of weaker states and to construct friendly arrangements. These arrangements continue to be motivated by global pacification, a fact powerfully underscored by the explicit grand strategy of postwar foreign policy
elites. No text better expresses this drive for pacification than National Security Council paper 68 (NSC-68). Generally considered the foundational document of Cold War foreign policy, NSC-68, written in 1950, not only emphasized the specific security dilemmas posed by the Soviet Union;
it also reasserted the image of the United States as enjoying a unique historical project, one that aimed to protect national freedom by eliminating all potential sites for foreign chaos: In a shrinking world, which now faces the threat of atomic warfare, it is not an adequate objective
merely to seek to check the Kremlin design, for the absence of order among nations is becoming less and less tolerable. This fact imposes on us, in our own interests, the responsibility of world leadership. It demands that we make the attempt, and accept the risks inherent in it, to bring

about order and justice by means consistent with the principles of freedom and democracy. 13 In essence, NSC-68 echoed Arnold's ideal of " humanitarian imperialism presented the pursuit of " and

global power as a collective project (replete with risks and sacrifices ) that cohered American public life and gave value to
social membership. Today, in order to protect its territorial reach and international primacy, in many ways the United States engages in the classic hallmarks of imperial rule. Policymakers view the country as enjoying a right to act covertly or overtly in
all parts of the world in order to quell presumed threats or to create economic ties conducive to national interests. Yet, precisely because the United States is not a traditional empire, local peoples find themselves in an interesting predicament. During the era of colonial dependency,
imperial states, for all their coerciveness, remained bound to colonized groups by relations of actual sovereignty. Simply to maintain order over unruly populations, European empires had to be at least partially responsive to indigenous communities-a fact illustrated by the British decision
in Canada to extend rights to French Catholics in the years leading up to the American Revolution. By contrast, the current moment is marked not by clear relations of control but rather by a diffusion of practical authority, spread across a variety of shifting sites (from domestic elites in the
global south to international institutions and donor countries), often ultimately reinforced by American police power. Given this overlapping network of diffuse control and responsibility, foreign entities, including the United States, may wield a high degree of practical authority over the
internal politics of weaker states, without any direct means by which local publics can alter-let alone repudiate-such authority. As Nkrumah, Du Bois, and King worried, despite the end of actual colonial rule, formal state sovereignty remains compromised by substantive forms of

These facts
dependence. are also deeply intertwined with the very project
not only define the global condition and the place of American primacy in the international order; they

of pursuing meaningful domestic accounts of freedom. today global relationships of dependence This is because

are themselves reproduced at home collective practices

even and, moreover, in a context devoid of substantive ideals of self-rule for either insiders or outsiders. In other words,

continue to sustain a distinction between metropole and periphery even as this distinction serves ,

primarily to strengthen corporate and state hierarchies that undermine democratic possibilities for all . As a

the extension of American power nonetheless brings with it two

consequence, despite the end of settlerism and the move toward formal equality for blacks and women,

lasting developments: a diminution in the value of full membership and the persistence of profound
insider-outsider dichotomies . The latter both entrenches and subtly shifts historic prejudices and modes of subordination and is most evident in the marginal status of noncitizen immigrants in American economic and political life.
2AC – Grapevine Finals
 Advantage
The 13th amendment applies to private actors.
Goluboff, ’01 (Risa; Dean & Arnold H. Leon Professor of Law/Professor of History at the University of Virginia; Law Clerk to the
Honorable Guido Calabresi, United States Court of Appeals for the Second Circuit, 2000-2001. B.A., Harvard University; M.A., Princeton
University; J.D., Yale Law School; Law Clerk to the Honorable Stephen G. Breyer, Associate Justice, United States Supreme Court, 2001-2002;
“The Thirteenth Amendment and the Lost Origins of Civil Rights”)//ILake-EF

The attorneys whose task it was to prosecute civil rights violations had to overcome not only a lack of broad
federal jurisdiction but also the obstacle of state action. Especially since the lawyers were reluctant to challenge state laws requiring segregation,
they needed to find authority for prosecuting civil rights violations perpetrated by private individuals. The Fourteenth and Fifteenth Amendments

protected individuals against action by government only, however, so injuries and discriminations
perpetrated by private individuals presented tricky problems for prosecution. 124 Theorizing their way
around the state action requirement occupied much of the time of the Civil Rights Section staff. Rotnem and
Biddle both tried to find circumstances in which state inaction could be construed as action, such as
when the victim was in the custody of the police. 125 Using the “inaction theory,” the conspiracy statute,126 and the “color of law statute,”127 the
Department attempted to reach as many harms as possible. As the war progressed and the successful cases began to accrue, Rotnem proudly announced that under the civil rights statutes
“[p]owers much greater than most people realize reach all the way down to the source of many of our most difficult problems—the behavior of local enforcement officials.”128 These

Fourteenth Amendment-based statutes still could not usually reach private individuals, however. In addition to
the difficulties of finding federal jurisdiction, the frequent lack of state action rendered rights violations such as lynching

largely out of reach of Civil Rights Section prosecutions throughout this period. The Thirteenth
Amendment, on the other hand, did not present the state action problem that plagued the
Fourteenth and Fifteenth Amendments, many Reconstruction statutes, and the Bill of Rights. The Thirteenth Amendment declared that “neither slavery nor
involuntary servitude . . . shall exist within the United States.”129 “In sharp contrast” to the state action requirement in those

amendments, Rotnem wrote, “is the Thirteenth Amendment . . . a general prohibition which applies not
only against the States and the federal government but also against all individuals who seek to enslave
others.”130 Consequently, as the Department of Justice tried to theorize its way out of the state action problem, the Thirteenth Amendment and its
enforcement legislation stood out as promising possibilities for prosecutorial success. As Biddle stated in a 1944
speech, In short, the application of the criminal sanctions to the protection of civil rights has come to be restricted mainly to cases in which State officials participate, or misuse their power, or
situations involving rights granted directly to individuals and guaranteed against individual infringement by the Federal Constitution or laws. For many years, such rights were few in number,

131 Because of this

limited for the most part to those granted by the Thirteenth Amendment, and to rights under such laws as the Homestead Acts and other Federal land laws.

unique doctrinal position of the Thirteenth Amendment and its statutes, involuntary servitude remained
near the center of the Civil Rights Section’s agenda and helped set the parameters of a public civil rights
jurisprudence.
 2AC T-Enact – T/L
B) Congress can interpret the Constitution.
Tushnet, ’01 (Mark; Professor Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice
Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of
constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional
democracy;” EVALUATING CONGRESSIONAL CONSTITUTIONAL INTERPRETATION: SOME CRITERIA AND TWO INFORMAL CASE STUDIES;
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1560&context=facpub)//ILake-EF

Students of constitutional law regularly evaluate the Supreme Court's performance in interpreting the
Constitution. Evaluations of Congress's performance of this same task are much less common. When we evaluate the
Court's performance, our comments are frequently critical. That is, we do not believe that the Court's practice of interpretation of the Constitution is flawless. Yet,
comments on Congress's performance frequently are based on the assumption that flaws in that institution's
performance demonstrate its general inability to do a decent job of interpreting the Constitution . We also

have developed a number of justifications for judicial review . Assertions that the Court has some institutional superiority in
deciding constitutional questions are common in those justifications. Those assertions might support a general skepticism about

Congress's ability to interpret the Constitution well. Ordinarily, however, the claims about institutional superiority deal solely with
structural characteristics of the Court and legislatures. So, for example, we note that electoral pressures may unduly influence members of Congress, even if they
are sincerely interested in interpreting the Constitution correctly.2 In contrast, we point out, judges do not face such pressures.
 2AC States CP – T/L
A) Inconsistent results – interpreting “badges and incidents” across 50 different states
results in racist hijackers undermining the project of demosprudence – Alabama
obviously wouldn’t interpret history or “discriminatory policing” the same way as
California.
Miller, ‘19 (Lisa L. Miller; Professor @ Rutgers University, Miller has her B.A. from the University of Virginia (1987) and her Ph.D. from the University of Washington (1999). From
September 2015 through June 2016, she served as the John G. Winant Visiting Professor of American Government at the Rothermere American Institute at the University of Oxford. In 2012-
2013 Professor was a Visiting Scholar at the Program in Law and Public Affairs in the Woodrow Wilson School of Government at Princeton University and in 2011-2012 she was Visiting Fellow
at All Souls College at the University of Oxford where she conducted research on crime politics in the UK. In 1999-2000 she was a Visiting Assistant Professor at the University of Puget Sound.
From 2000-2004 she was an Assistant Professor at Penn State University; Federalism is unlikely to save progressive politics;" Law and Political Economy;
https://lpeblog.org/2019/07/11/federalism-is-unlikely-to-save-progressive-politics/; 7-11-2019)//ILake-EF

To begin, federalism functions not only as a system of multiple venues but also as a system of vetoes, that is,
political choke points that allow small groups with narrow economic or ideological interests to block or slow
implementation of policies preferred by political majorities. Gerken and Revesz laud this blocking potential, but blocking is a generally
rear-guard action for progressives, while it is often the end in itself for conservatives. Progressives may
use uncooperative federalism to resist deportation of undocumented immigrants, for example, but what they really seek is
national immigration reform that protects migrant workers, refugees, immigrants, and their families. For conservatives, however, using
states to preempt local laws (e.g., gun control), or resist federal law (e.g., expansion of Medicaid) often is the goal.
Blocking policies from being implemented, being uncooperative, or dragging one’s feet in enforcing federal rules are not strategies that are
equally beneficial to all political interests . By definition, American federalism has a status quo bias or, to put it plainly,

conservativism has a built-in advantage. This is not to suggest that the only goal of conservatives is to block progressive policies rather than
enact their own. But we need to recognize that progressive agendas, by definition and in contrast to conservatives, more commonly seek

to marshal and expand the resources of the national government in order to enact comprehensive, universal
social policies aimed at providing or improving public goods. For such policies to succeed, big national policy
initiatives are often required. As University of Oxford political scientist Desmond King reminds us, “forceful federalism”—major
national policies backed by aggressive enforcement—are the primary mechanisms through which many forms of social

progress have occurred in the United States. In contrast, without the powerful resources of the national government and
consistent policy enforcement across all levels, the many layers of American federalism allow for a great deal of disruption

to progressive policies, even when majorities support them.

C) Focus on states’ rights – accepting the premise of state sovereignty suppresses

Reconstruction memory work.
Spaulding, ‘03 (Norman W.; Acting Professor of Law, University of California, School of Law (Boalt Hall). J.D., Stanford Law School,
1997; B.A., Williams College; “Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory”; Dec.
2003; Columbia Law Review, Dec., 2003, Vol. 103, No. 8 (Dec., 2003), pp. 1992-2051; http://www.jstor.com/stable/359338)

The current Court's defense of "dignitary" rights against federal law enforcement efforts, its consistent
solicitude for "areas of traditional state concern," and its obsessive presentiment about consolidating "general
police powers" in the federal government or upsetting the liberty-enhanc- ing balance of federal and state
powers, are not merely rhetorical flour- ishes. They reflect both a principled endorsement of robust
federalism and an attempt to show that the endorsement is itself the necessary result of authoritative memory
work. Precedents the Court has swept aside in order to revive federalism are not binding on this register because they "forget" the
importance of antecedent commitments to dual sover- eignty.120 And, of course, by appearing to recall the kind of "limits" Chief Justice
Marshall warned we are preternaturally tempted to forget, the fed- eralism revival lays claim to the ostensibly unimpeachable authority of
returning to first principles and founding intentions.'2' This method of legitimating judicial review is well recognized. But deeper
mnemonic forces are at play here. The historical consciousness of the federalism revival, the logic of its
memory work, turns on a chill- ingly amnesic reproduction of antebellum conceptions of state sovereignty -
something approaching what it would mean for Kasse have rebuilt the Ashcrott-Brunnen in place rather than represent the fact of its
destruction and the forces responsible for its absence. Outside this monumentalist framework for thinking federalism, the conditions of en-
tering the Union and the authoritative inferences drawn from "defining feature [s] of our Nation's constitutional blueprint," could not be
invoked without simultaneously recalling and giving weight to the paradoxical conditions of saving and re-entering the Union in the 1860s.122
Our de- scent into a protracted, internecine war following secession was over nothing, after all, if not the
fate of a particularly robust strain of federal- ism and the grave, anti-democratic injustices it insulated . The
assertion is deceptively familiar, almost platitudinous and hollow, but it is just this deceptive familiarity on which the
federalism revival relies for interpretive legitimacy. Without a reassuringly familiar register for both
remembering and suppressing our most profound dem- ocratic failure, a failure of federalism, the confident
reach back to monu- mental first principles and founding intentions-the persistent effort to read the Reconstruction
Amendments and the Civil War as conditioned by, rather than radically altering, the imagined terms of the
Founding- would stall out.

A) Federal law enforcement – Trump will torpedo the CP through circumvention or

preemption.
Harmon, ‘15 (Rachel A.; Professor of Law, University of Virginia Law School, June 2015, “ARTICLE: FEDERAL PROGRAMS AND THE REAL
COSTS OF POLICING,” NYU Law Review, 90 N.Y.U.L. Rev. 870)

While states are usually perceived to be weak regulators of local policing, they do sometimes constrain the coercion costs of policing and facilitate police accountability. State
statutes, for example, restrict the legal bases for custodial arrests, limit strip searches, and constrain the use of traffic control to generate municipal income. 343Link to the text of the note They also set hiring and training standards
for officers, and decertify officers who have engaged in substantial misconduct or criminal activity. 344Link to the text of the note State budgets and sentencing statutes shape local criminal enforcement priorities. 345Link to the
text of the note Some federal programs facilitate state regulation of local policing by funneling federal grants through state agencies, which set priorities for the local use of federal money. Several Homeland Security grants and

federal programs undermine state policies that

Byrne JAG grants, for example, give states influence over local distributions of funds. Less obviously, however, other

might limit the intrusiveness of local policing. For example, while all states permit asset forfeiture under at least some circumstances, states take a range of approaches to
balancing the competing interests of law enforcement, the public, and individual property owners. 346Link to the text of the note Some states permit forfeiture broadly, while others permit it only for a narrow range of crimes or
only in criminal proceedings. 347Link to the text of the note Eight states authorize forfeitures, but forbid law [*955] enforcement agencies from benefiting directly from the proceeds, turning over forfeited proceeds instead to the
state's general fund or education spending. 348Link to the text of the note Other states permit agencies to receive proceeds, but cap the percentage of proceeds that are returned to law enforcement agencies. 349Link to the text
of the note States also erect procedural barriers to forfeiture, such as giving the government the burden of overcoming an innocent-owner defense. 350Link to the text of the note These constraints make state forfeitures more

difficult to complete and less financially rewarding for departments that carry them out. 351Link to the text of the note Local police departments may bypass many of these
state-created obstacles by using federal forfeiture law rather than state law in states that limit forfeiture. In a state with civil forfeiture rules more restrictive than federal law, a department may seize
property and seek equitable sharing under federal law's laxer rules, even after Attorney General Holder's recent adjustments to the program. Research suggests this is precisely what

police departments do. Police departments in states with restrictive forfeiture laws are significantly more likely to choose to pursue federal equitable sharing than departments in states that make
forfeiture more profitable to police departments. 352Link to the text of the note In this way, federal asset forfeiture undermines state efforts to reduce the

harms of asset forfeiture and constrain its distorting effect on policing . Since, as described earlier, the Equitable Sharing Program also frees
departments from ordinary local political checks on police conduct, the federal program effectively ensures that police departments (in forfeiture-restrictive states) are subject neither to the full financial constraints of local budgets
nor to the restraint of state law. Asset forfeiture is an extreme example of potential federal interference with state law enforcement policy decisions because it permits police departments to determine the scale of their forfeiture

Whenever federal law puts a thumb

activities and because it gives largely unrestricted money directly to police departments. Other federal laws have analogous, if more subtle, effects.

on the scale for some law enforcement activities, it potentially interferes not only with local efforts to set law
enforcement priorities, but also with state criminal justice policy that limits the harmfulness of policing .
[*956] VAWA provides another example. VAWA's Arrest Program encourages states to adopt pro-arrest laws in much the same way it encourages local departments to do so. 353Link to the text of the note Despite the financial
incentive created by federal grants, twenty-one states continue to permit police officers discretion over whether to make a warrantless arrest for a domestic violence crime. 354Link to the text of the note Wyoming, for example,
provides that a "local law enforcement officer responding to the request for assistance may take whatever steps are reasonably necessary to protect the victim from further domestic abuse," and specifically lists advising the victim
about services, facilitating medical care or housing, and "arresting the abusing household member when appropriate." 355Link to the text of the note As noted above, conditioning Arrest Program funds on a pro-arrest policy, as
VAWA requires, provides no additional incentive to municipalities in states that already mandate or prefer arrest. But it does encourage local governments and departments to adopt pro-arrest policies when their states do not
have such laws. If arrest-neutral states are trying to preserve officer discretion to arrest - rather than defer to local preferences - the Arrest Program undermines those states' policy judgments. Any program that provides funding to
local departments directly can have similar effect, marginalizing the impact of state efforts to reduce the coercion costs of policing. 356Link to the text of the note Federal law that empowers officers rather than giving money can
also interfere with state policy. The Federal Law Enforcement Officers Safety Act (FLEOSA), passed in 2004 and amended several times since, authorizes qualified police officers and qualified retired officers to carry a concealed
firearm in any jurisdiction in the United States. 357Link to the text of the note The law expressly permits officers certified in one state to carry weapons in all others, even when doing so conflicts with the laws of the state in which
they are present. 358Link to the text of the note States differ enormously in [*957] their minimum qualifications for officers, their training standards (both with respect to firearm performance and the law), 359Link to the text of
the note and their concealed-carry laws. 360Link to the text of the note State certification of police officers ensures that officers are familiar and compliant with the laws of their state. FLEOSA enables officers to leverage the
certification, training, and weapons possession laws of the least restrictive states to encroach upon the policy judgments of more restrictive ones. Though state and federal interests often align, in each of these examples, federal

Federal programs have no effect on states that facilitate costly

public safety programs act as a one-way ratchet that likely raises the costs of policing.

policing, such as states with permissive asset forfeiture laws or those that encourage arrests, but they undermine state policies that could reduce
those costs - by reducing property deprivations, arrests, or uses of force - in favor of federal policies that subsidize or
facilitate them. As several scholars have noted, states and municipalities are not powerless to respond to federal encroachment through grants of power and authority. Both states and municipalities participate in
the development of federal programs, and they frequently influence the form of those programs. 361Link to the text of the note When they cannot shape them, states and cities can still refrain from applying for conditional grants.
States can also bar local governments and police officers from using federal power or money in ways inconsistent with state law or policy. They could set limits on deputation of local officers, restrict local participation in federal

Some scholars have taken the

asset forfeiture, or prohibit local law enforcement agencies from operating drones, making it irrelevant whether they receive them through federal money.

power to refuse and high-profile instances of state and local resistance to federal [*958] programs to suggest that we need not worry much
about federalism concerns arising from federal programs. 362Link to the text of the note In practice, however, state and local power to
resist federal programs is less substantial than formal mechanisms suggest. As Roderick Hills has pointed out, the
argument that states can merely refuse federal money and power or forbid local law enforcement agencies
access to those resources "mistakes legal theory for political reality." 363Link to the text of the note Occasionally, a state or city will resist, as
jurisdictions have done with Secure Communities. 364Link to the text of the note But that resistance is rare. Instead, state and local governments often compete

with each other for federal funding and authority, since refusing funds effectively exports state
residents' tax dollars to other states. 365Link to the text of the note For this reason alone, voters may punish state or
local actors who fail to use available federal resources. 366Link to the text of the note Local political sentiment will less
frequently meet the threshold necessary for police reform with federal resources subsidizing coercive
practices. Sometimes resistance is not even legally viable. FLEOSA, for example, expressly preempts state laws inconsistent with it. 367Link to the text of the note
During debate over the law, amendments were offered to allow states to opt out of the law and to narrow the statute so that

it would not operate where it conflicted with state law. Those proposals failed after the National Rifle Association and law
enforcement groups supported the broader statute . 368Link to the text of the note Similarly, in the face of efforts by states,
municipalities, and departments to restrict cooperation between federal immigration [*959] agents and local law enforcement

pursuant to Secure Communities, 369Link to the text of the note the federal government announced that its once-voluntary program was

mandatory. 370Link to the text of the note The possibility of federal preemption can leave states and localities with no
alternative to the political arena to preserve state interests in federal policing policy , and in that arena, federal interests often lead to costly policing.

C) Militarization – DOD will give equipment to anyone who asks.

Bennett, ‘17 (Kanya; Senior Legislative Counsel, ACLU Washington Legislative Office, 7/26/17, “Even Fake Law Enforcement Agencies
Can Get Weapons of War for ‘Policing’,” https://www.aclu.org/blog/criminal-law-reform/even-fake-law-enforcement-agencies-can-get-
weapons-war-policing)

It appears all law enforcement — even a “fictitious federal agency” — can get federally supplied weapons
of war, with quite literally, no questions asked. We learned this a few days ago when the Government Accountability Office (GAO) issued a troubling
assessment of the Department of Defense 1033 program. The 1033 program gives federal, state, and local law enforcement surplus

military weapons and equipment for use in routine policing . The 1033 program is the poster-child of federal
programs responsible for the militarization of U.S. police . GAO indicated that the Defense Department does not
verify the identification of individuals picking up military weapons

through 1033. And GAO found that the Pentagon does not verify the quantity of military weapons transferred through
1033. GAO said Defense “lacks reasonable assurance that it has the ability to prevent, detect, and respond to

potential fraud and minimize associated security risks .” And just how did GAO reach this conclusion? GAO posed as a fake
federal law enforcement agency and secured military weapons through 1033. They sought $1.2 million worth of rifles, pipe
bomb equipment, and night vision googles. And they got them. “ It was like getting stuff off of eBay,” according to GAO staff. The ACLU criticized the 1033
program in its 2014 report, “War Comes Home: The Excessive Militarization of American Policing.” And in Ferguson, Missouri, in the aftermath of the fatal police shooting of Michael Brown,
the world got to see for itself just what is wrong with militarized policing. Those protesting Brown’s death were met with armored vehicles, shotguns, rifles, tear gas, and rubber bullets.
Veterans from the Iraq and Afghanistan wars expressed horror that they, while on active duty overseas, were less heavily armed and combative than the local police in Ferguson. Then
President Barack Obama was troubled too. He issued Executive Order 13688 in January 2015 to put necessary oversight and protocols in place around law enforcement use of military weapons
doled out by the federal government. Certain weapons, like bayonets and tanks, would become prohibited, and other equipment, like Mine Resistant Ambush Protected vehicles (MRAPs) and
drones, would be subject to tighter controls that included training supervision, evaluation, and auditing. To do this, E.O. 13688 created an interagency working group that included the

the working
Departments of Defense, Justice, and Homeland Security — the primary federal providers of military weapons and equipment to law enforcement. At a minimum,

group was supposed to ensure that the agencies giving out these military-grade weapons were talking to
one another. But at a September 2014 congressional hearing on federal militarization programs, officials from Defense, Justice, and
Homeland Security admitted that they had never met before. This meant that the Pentagon could provide an MRAP
to a police department subjected to Department of Justice complaints of police misconduct . But what this GAO
report reveals is that Defense may not only be out of touch with Justice, but with the very law enforcement

agencies that it’s lending military weapons to . Just what has the Department of Defense and the interagency working group been doing for the last two
years? The oversight and protocols – were those fake too? Honestly, you can’t make this stuff up, which is frightening since President Trump

doesn’t believe the program needs any oversight at all During the campaign, Trump promised to repeal Executive Order 13688. Not to be
outdone, the House voted earlier this month to prioritize the 1033 program for border enforcement. So instead of trying to fix 1033 as GAO indicates is necessary, it’s likely the

White House and Congress will allow this program to go further off the rails.
 2AC Con Con CP – T/L
Con cons allow racist state officials to choose reps.
Super, ‘17 (David A., professor of law at Georgetown University. "Don't even think about 'updating' the Constitution", chicagotribune, 3-
20-2017, https://www.chicagotribune.com/opinion/commentary/ct-constitutional-convention-amendments-20170319-story.html, 8-26-
2020)//Ilake-BC

And even if a con-con didn't hijack the ratification process , a problematic amendment — the authority to suspend
the First Amendment for national security reasons, say — could still linger indefinitely, only to get pushed
over the top by a perceived national crisis or the rise of a demagogue. The 27th Amendment was ratified two centuries after
being proposed to the states. Romantics imagine that a constitutional convention would be a way of taking
government back from the politicians. Yet the delegates are likely to be chosen by state legislators , who
presumably would select themselves. The representatives you love to hate now — not Madison, Hamilton,
Franklin and Washington — would get the chance to revamp the Constitution .
 2AC Courts CP – T/L
B) Courts lack power to successfully implement change – means Congress has to act.
Rosenberg, ‘91 (Gerald N. Rosenberg, Associate professor of political science and lecturer of law at the University of Chicago, JD from
University of Michigan, Ph.D. in Political Science from Yale University, M.A. in Politics and Philosophy from Oxford, , “The Hollow Hope Can
Courts Bring About Social Change?”, The University of Chicago Press, http://93.174.95.29/main/2A1815A75D220DB08F9EC5A312A49B84, 1991)
//ILake-AZ

Lack of Implementation Power. The third constraint that must be overcome is the courts' lack of implementation
powers. As Bronstein points out, implementation and enforcement of prison reform decrees rests "primarily in the hands of prison officials"
(Bronstein 1977, 44) who, like other professionals, do not like having their professional competence challenged. When courts issue
orders requiring prison reform, many administrators see them as doing just that. The problem, of course, is not
only that prison officials "often continue to fight for the status quo" (Bronstein 1977, 44), but also that courts
lack the tools to insure implementation. Although this is not unusual, the less visible nature of prisons as compared to other
governmental agencies which have been the targets of litigation makes implementation even more problematic. Since prison access is
regulated for safety reasons, information on conditions and the progress of implementation is difficult to obtain .
As Jacobs points out, "even under the best of circumstances," the court "must depend upon the institution's
staff for information as to whether a decree is being followed" (Jacobs 1980, 452). The staff, of course, may be
uncooperative. Indeed, when California corrections administrators were asked, in a survey, if they could "comply
with court orders through changes which meet the letter of the court order, but not its spirit , and thereby
frustrate the intent of the court," a whopping 87 percent said yes (Project 1973, 530). As one administrator put it in a follow-up
interview, "we can usually get around anything" (Project 1973, 531). Administrators simply play an indispensable role in the
success of prison reform. As the assistant attorney general in charge of corrections in Washington state put it, "the key to relief will be
commitment by defendants to comply with the letter and the spirit of the order" (Collins 1984, 342). The necessity of support from prison
administrators, and their ability to withhold that support, makes overcoming the implementation
constraint particularly problematic. 13 There is also a related issue of staff support below the top administrative level. Since it is
the staff who will actually carry out any reform decree, their attitude is vitally important. Yet the staff, operating in a potentially dangerous
environment, may have little interest or incentive in reforming their procedures, especially if the reforms
are perceived as lessening their authority. A New York study found that the typical corrections officer "opposes
prison reform as a threat to his physical security" (New York State 1974, 17). The California correctional administrators'
survey just referred to, found "many administrators" stating that the "greatest administrative challenge regarding the
effect of change on the staff was having to 'sell' the staff on every new policy" (Project 1973, 502). Indeed, the
survey found that" staff morale is the operational factor which consistently shows the greatest negative effect" of court-ordered reform
(Project 1973, 575). It makes good sense that staff may feel uneasy about change. Aside from the potential dangers under which they
constantly operate, they may also fear for their jobs. Active attempts at implementation may get them into trouble with recalcitrant
administrators while active refusal to implement may create similar problems with the court .
This attitude can make it doubly
hard for courts to find out what prison problems exist, how they are improving and the reasons why.
This difficulty in turn limits the courts' ability to mold effective decrees (Note 1979, 1079-80). And when administrators are
fighting courtordered reform, repeated violations of court orders may enhance rather than harm an employee's career. 14 On the other hand,
when there is support for the decree on top, staff may be more willing to make a good faith effort. 15 In sum, the "transformation of the
patterns of interaction necessary for prison reform cannot be achieved by decree" (Note 1979, 1073). The active support of administrators and
staff is required. And without the presence of factors external to the courts, that support will not be available.

Courts are too authoritarian.

Greene, ‘12 (Jamal Greene, Constitutional law expert and Dwight Professor of Law at Columbia Law School, “Thirteenth Amendment
Optimism”, Scholarship Archive, https://scholarship.law.columbia.edu/faculty_scholarship/666/, 11-2012)//ILake-AZ
Thirteenth Amendment optimism, like progressive constitutionalism more generally, is aspirational. It seeks to
broaden extant understandings of constitutional text to permit it to respond to constitutional
problems not specifically contemplated by its drafters and misunderstood within modern discourse. This
project may be well suited to constitutionalism of a sort, but it is not well suited to judicial practice because it turns
limitation-the stuff of courts-into license-the stuff of legislatures. 25 All is not lost, however, or so this Essay will argue. The
redemptive orientation of Thirteenth Amendment optimism may in fact offer the key to its
contemporary relevance. The two provisions of the Thirteenth Amendment have, without explanation, been treated differently by the
Supreme Court. Section 1 has never been interpreted to prohibit , of its own accord, "badges and incidents" of
slavery, 12 6 but Section 2 has been said to empower Congress to eradicate such badges and incidents
almost from the beginning of Thirteenth Amendment interpretation. Some Thirteenth Amendment optimists
understandably find this disjunction troubling,' 27 but separating the two sections permits us to identify the
Amendment with two overlapping but distinct forms of constitutionalism: judicial and legislative . As West
suggests, legislative constitutionalism is less authoritarian than judicial constitutionalism and therefore
more compatible with progressive constitutional arguments. 2 It also does not suffer from the same
opportunity costs because Thirteenth Amendment-inspired legislation does not require a Thirteenth
Amendment judicial justification. Expanding the political imagination by way of Thirteenth Amendment
optimism may help, in small ways, to motivate the political process

necessary to craft legislation ultimately grounded in other substantive provisions . Two examples will help to
clarify the argument. First, recall Pope's discussion of unionist arguments in favor of a Thirteenth Amendment ground
for Progressive-era labor rights legislation ."2 Those arguments did not succeed in their particulars but they were vital to
the legislation that eventually passed. The anti-injunction bill that eventually became the Norris-LaGuardia Act was
drafted by the labor reformer Andrew Furuseth, who specifically invoked the Thirteenth Amendment-inspired
notion that management cannot have a property right in the labor of its workers . 130 Furuseth likewise urged
Senator Robert Wagner to base the National Labor Relations Act (NLRA) on the Thirteenth Amendment, 1 31 and in defending the legislation,
Wagner drew on principles the labor movement had long tied to that provision, namely the right to freedom from economic as well as physical
coercion. 13 2 Other proponents of the bill spoke in similar terms. 133 Labor
advocates addressed their Thirteenth
Amendment claims to Congress rather than the Court out of distrust of lawyers 13 4 and, importantly, as Forbath
notes, because they firmly believed that social and economic rights, though constitutionally grounded, "did not lend themselves to judicial
enforcement."'3 5 Congress eventually justified both the Norris-LaGuardia Act and the NLRA on non-rights-
based constitutional provisions, namely the power to control federal jurisdiction and the interstate commerce power."'6 It did
so in response to political pressure, both from pragmatist Progressive elites like Felix Frankfurter' 37 and from antiunion Southern
interests that controlled vital congressional vetogates but formed part of the New Deal coalition.' 38 But the text and history of the
Thirteenth Amendment became, in Reva Siegel's words, "the site of understandings and practices that
authorize, encourage, and empower ordinary citizens to make claims on the Constitution's meaning .
"139 The second example is more familiar to most constitutional lawyers, since on its face it represents the most spectacular success of
Thirteenth Amendment optimism. In Jones v. Alfred H. Mayer Co., the Supreme Court held that 42 U.S.C. § 1982, which prohibits racial
discrimination in the transfer of property, applied to private residential housing discrimination and, so applied, was valid Thirteenth
Amendment Section 2 legislation. 4 ° The Thirteenth Amendment holding in Jones was genuinely shocking but the result was expected. The
state action doctrine, undermined in Shelley, 14 ' had since been dealt a series of blows so severe that it was liable to collapse at the slightest
tremor. In Heart of Atlanta Motel and McClung, the Court had permitted Congress to evade state-action-based limitations on addressing private
discrimination by upholding the legislation under the Commerce Clause. 142 Just over a year later, in United States v. Price and United States v.
Guest, decided the same day, the Court held that a statute aimed at conspiracies to deprive a person of the exercise of civil rights was valid
Fourteenth Amendment legislation even as applied to private actors working either indirectly or in concert with a state actor ignorant of any
discriminatory motivation. 43 Although Justice Stewart's majority opinion in Guest avoided deciding the power to enact the statute under
Section 5 of the Fourteenth Amendment if it reached purely private action, six
members of the Court, over two separate concurring
opinions, endorsed the view that Congress indeed possessed that power . 144
B) Courts lack the political pressure necessary to bring significant social reform – only
demosprudence solves
Rosenberg, ‘91 (Gerald N. Rosenberg, Associate professor of political science and lecturer of law at the University of Chicago, JD from
University of Michigan, Ph.D. in Political Science from Yale University, M.A. in Politics and Philosophy from Oxford, , “The Hollow Hope Can
Courts Bring About Social Change?”, The University of Chicago Press, http://93.174.95.29/main/2A1815A75D220DB08F9EC5A312A49B84, 1991)
//ILake-AZ

Political and Social Support. The second constraint on courts' ability to produce significant social reform is the
need for political support. Prison reform issues are "essentially political" (Bronstein 1977, 27, 44), and prison
reform is "highly dependent upon the political processes" (Resnick 1984, 348). When political leaders are willing to
act, this constraint can be overcome. When they do nothing, or oppose court decisions, little change occurs . The reasons for this are
relatively straightforward. First, unless prison officials are pushed by political leaders there is "little incentive" for
them to "take the risks inherent in changing the current structure" (Note 1979, 1067). Without the support of political
leaders, prison officials lack the resources to make many changes and risk their jobs in trying. Ameliorating
conditions, improving services, hiring more guards, and building more prisons all cost money, and that money can come
only from the legislature and the executive branch. Thus, overcoming the lack of political support was a trickier problem,
and one that reformers have not been able to solve uniformly. Political support for prison reform was based on several factors. In general, a
prisoners' rights movement developed that was part of a larger rights movement that swept the U.S. in the 1960s. As one commentator put it,
activists "linked the prisoners' cause to the plight of other powerless groups" in the "context of a 'fundamental democratization' which has
transformed American society since World War II, and particularly since 1960" (Jacobs 1980, 432).11 This "social
acceptance of civil
rights for a variety of 'unconventional' social groups" (Thomas, Keeler, and Harris 1986, 793) made prison reform
an issue that politicians could deal with . There was a proliferation of prison support groups ranging from CURE, Citizens United
for the Rehabilitation of Errants in Texas (Ekland-Olson and Martin 1988, 368-69), to nationwide, established organizations. In 1970 the
American Bar Association created a Commission on Correctional Facilities and Services to advance reform which, with Ford Foundation funding,
opened a full-time office in Washington, D.C. (Jacobs 1980, 437-39). The National Institute of Corrections, a federal agency, "played
an increasingly important role in the prisoners' rights movement" as did the American Correctional Association, the
leading professional association of prison officials (Jacobs 1980, 448). Thus, prison reform moved more toward the political
mainstream. Another important factor in creating political and social support was prison violence. It is an unfortunate fact of American life
that it often takes violence to bring an issue to political consciousness. The prison reform movement was unquestionably
aided by a series of bloody prison riots and the coming to light of acts of prison violence (Toch 1985, 69). Those
acts provided the "critical impetus" (Benton and Silberstein 1983, 122) for reform efforts. In particular, numerous writers point to the riot at
New York's Attica prison in September 1971 as having a catalytic effect on the entire prisoners' rights movement. 12 In that riot, described by a
state investigating commission as the "bloodiest encounter between Americans since the Civil War" (quoted in Kolbert 1989, 1), forty-three
people were killed. And the crucial
role of riots and violence in promoting reform has been noted in Mississippi
(Hopper 1985,56), New Mexico (Mays and Taggart 1985, 38,47), Oklahoma (Giari 1979), and Georgia (Chilton 1989, 10), to cite just
a few cases. Political support for court-ordered prison reform varies enormously. In states like New York and New Mexico, perhaps because of
riots and severe overcrowding, Governors Carey, Cuomo, and Anaya have been committed to prison reform and expansion (Jacobs 1984, 216-
17 n.19; Mays and Taggart 1985,48-49). While
such political support by no means ensures that reform will occur, it
removes the political obstacles found in states such as Oklahoma and Alabama (Giari 1979,451; Yarbrough 1984). In Alabama, while
Lieutenant Governor George McMillen and others supported compliance with court decisions, Attorney General Charles Graddick used
opposition to courtordered reform to bolster his political image (Yarbrough 1984,287-88,283). And George Wallace, seldom without a colorful
slogan, accused Judge Johnson of creating a "hotel atmosphere" in the state prisons. Wallace's remedy for the problem was simple: "Vote for
George Wallace and give a barbed wire enema to a federal judge" (quoted in Yarbrough 1984, 287). It takes no great insight to see that
successful prison reform faced major obstacles in many states.
 2AC Federalism DA – T/L
B) FIRST STEP Act thumps.
Grawert, ‘19 (Ames Grawert is senior counsel and John L. Neu Justice Counsel in the Brennan Center’s Justice Program. He leads the
program’s quantitative research team, focusing on trends in crime and policing and the collateral costs of mass incarceration. Additionally, he
advocates for criminal justice reform policies at the federal level. How the FIRST STEP Act Became Law — and What Happens Next. January 4,
2019. https://www.brennancenter.org/our-work/analysis-opinion/how-first-step-act-became-law-and-what-happens-next)

Last month, the FIRST STEP Act was signed into law — a major win for the movement to end mass incarceration. For years,
Congress had attempted to pass criminal justice reform legislation, such as the Sentencing Reform and Corrections Act (SRCA) introduced in
2015 by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.). But the SRCA failed to pass in 2016 despite overwhelming bipartisan support,
thanks to opposition from Sen. Tom Cotton (R-Ark.) and then-Senator Jeff Sessions (R-Ala.). That all changed last December when the
Senate finally passed, and President Trump signed, the FIRST STEP Act — a modest bill that, despite some initial setbacks,
includes key parts of the SRCA. That makes it the first major reduction to federal drug sentences. What happened to
make this bill possible? And more importantly — what’s next? The making of a criminal justice reform bill The Brennan Center has been
advocating for federal sentencing reform for years: Attorneys at the Center’s Justice Program were heavily involved in the fight to pass the
SRCA and its predecessor, the Smarter Sentencing Act of 2013. But when Donald Trump was elected president in 2016, many worried that
sentencing reform would prove impossible for the next four years. Trump’s position on criminal justice reform was unclear at best and
regressive at worse. His early moves appeared to confirm these suspicions: While still President-Elect, Trump nominated Jeff Sessions, a vocal
critic of any reduction to the U.S. prison population, to be the nation’s chief law enforcement officer. Nonetheless, Grassley and Durbin
reintroduced the SRCA again in October 2017 and navigated it through committee in early 2018. The bill looked poised to stall once again due
to vocal opposition from Sessions. But the momentum started to pick up in early 2018, when the White House brokered the Prison Reform and
Redemption Act, a bipartisan bill aimed at improving conditions in federal prisons. This bill, which was renamed the FIRST STEP Act after some
modest improvements were added, still lacked any meaningful sentencing reform component, meaning it would have done little to reduce the
prison population. For the White House, that was part of the appeal: Republican leaders believed that SRCA’s sentencing reform provisions
made it a nonstarter among conservatives. But because of that, the Brennan Center and a coalition of more than 100 civil rights groups
opposed the bill, arguing that the votes were there for sentencing reform — if only Republican leaders would put a bill on the floor.
Nonetheless, the FIRST STEP Act passed the House of Representatives by a wide margin of 360 to 59. That’s where the process stood until late
last year. A breakthrough occurred in November, when lawmakers and advocates reached a compromise on the FIRST STEP Act, amending it to
incorporate four provisions from the SRCA. The measure garnered the support of the president and both Republicans and Democrats in
Congress. Critically, the compromise was blessed by Grassley and Durbin, signaling that the new bill adequately met the goals of their own prior
bill. The FIRST STEP Act initially stalled in the Senate amid opposition from a right-wing minority faction led again by Cotton. And, critically, time
was running out in the legislative session, making Republican leaders balk at spending precious floor time on the bill. But another series of
compromises quieted opposition from Sen. Ted Cruz (R-Texas) and garnered support for the bill from Sen. John Cornyn (R-Texas), the majority
whip, clearing the path for an easy floor vote. After that change and continued pressure from Trump, Grassley, the Koch Brothers, and
constituents in Kentucky, Senate Majority Leader Mitch McConnell announced in mid-December that he would bring up the bill for a vote
before the end of the year, during the lame-duck Congress. Longtime opponents of reform like Cotton still had a chance to block the bill: They
could run out the clock. But a series of procedural shortcuts allowed McConnell to bring the bill to the floor by essentially slotting the text of the
bill into another piece of legislation that was already eligible for Senate consideration. And so another hurdle was cleared. But one more
remained. During the amendment process for the FIRST STEP Act, Cotton and Sen. John Kennedy (R-La.) pushed for a series of “poison pill”
amendments that would have unacceptably weakened the bill and split the bipartisan coalition supporting it, just at the moment of passage.
But those amendments ultimately failed to materialize in the final bill, which cleared the Senate by an overwhelming 87-12 margin. Not a single
Democrat voted against the bill, and Republican opponents of reform were relegated to a small minority. Next, then-House Speaker Paul Ryan
(R-Wis.) cleared the way for quick consideration of the bill in the House of Representatives — and sent it to President Trump’s desk just before
Christmas. The president signed the bill on December 21. Criminal justice reform starts with sentencing reform The FIRST STEP Act is
consequential because it includes provisions for meaningful sentencing reform, which would reduce the number and
amount of people in prison and is part of the starting point of any serious legislation for criminal justice reform. Sentencing laws played a
central role in the rise of mass incarceration in recent decades. The federal prison population, in particular, has risen by more than 700 percent
since 1980, and federal prison spending has increased by nearly 600 percent. That growth has disproportionally affected African Americans,
Native Americans, and Latinos. Federal mandatory minimum sentences were a catalyst for the recent surge of unnecessarily harsh prison
sentences. More than two-thirds of federal prisoners serving a life sentence or a virtual life sentence have been convicted of non-violent
crimes. But research continues to show that long prison sentences are often ineffective. One Brennan Center study found that overly harsh
sentences have done little to reduce crime. In fact, in some cases, longer prison stays can actually increase the likelihood of people returning to
criminal activity. These sentences disproportionately impact people of color and low-income communities. How the FIRST STEP Act tackles our
outdated sentencing laws The
FIRST STEP Act shortens mandatory minimum sentences for nonviolent drug
offenses. It also eases a federal “three strikes” rule — which currently imposes a life sentence for three
or more convictions — and issues a 25-ye ar sentence instead. Most consequentially, it expands the “drug
safety-valve,” which would give judges more discretion to deviate from mandatory minimums when
sentencing for nonviolent drug offenses. In an overdue change, the bill also makes the Fair Sentencing Act retroactive.
Passed in 2010, the Fair Sentencing Act has helped reduce the sentencing disparity between crack and
powder cocaine offenses — a disparity that has hurt racial minorities. The FIRST STEP Act will now apply the Fair Sentencing Act to
3,000 people who were convicted of crack offenses before the law went into effect.

C) Broader federal coercion is inevitable.

Kinkaid, ‘19 (John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and Director of the Meyner
Center for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania. Why the US’ complex federal system will blunt
the worst aspects of Trump’s transgressive presidency. 2019. https://blogs.lse.ac.uk/usappblog/2019/02/18/why-the-us-complex-federal-
system-will-blunt-the-worst-aspects-of-trumps-transgressive-presidency/)

Coercive federalism will endure, mildly aggravated by Trump Coercive or regulatory federalism describes the post-
1968 era in which the federal government can assert its policy will unilaterally over state and local
governments, there are few constitutional or political limits on exercises of federal power, elected state
and local officials are no longer policy-making partners with federal officials , and federal rules affect most
state and local policies. Coercive federalism emerged as a national political response to social
movements demanding federal interventions into states and localities to protect individual rights, the
environment, and other social goods and also mitigate negative externalities (e.g., air pollution) and socioeconomic inequalities.
Changes in the party system cemented its bipartisan endurance by muting the political voices of elected state and local leaders. The Supreme
Court’s “one person, one vote” rulings of the mid-1960s eviscerated the parties’ county and municipal power bases. These were crucial
electoral links between local and federal elected officials. The Democrats’ 1968 presidential convention marked a critical juncture as insurgents
revolted against the party’s bosses, imposed more national party rules on state parties, and shifted convention delegate representation toward
identity groups. Thepost-1968 proliferation of primaries further weakened state and local party leaders ;
encouraged candidate-centered campaigns financed by individuals , big donors, and national interests; and
fostered polarization as party and issue activists often determined primary-election outcomes. State and
local public-employee unions also played major roles by advocating federal interventions to benefit their
interests, as in one of the Supreme Court’s most momentous federalism rulings, Garcia v. San Antonio Metropolitan Transit Authority
(1985), which admonished states to rely on the national political process rather than the Tenth Amendment to protect their powers.
Coercive federalism also was facilitated by the 1960s’ decline of the Democratic South as a powerful
force in Congress where its representatives had long protected state and local government prerogatives from
federal coercion. Coercive federalism will endure but be mitigated slightly by Trump’s deregulation
drive, which affects state and local governments as well as the private sector. However, due to dual federalism, presidential
deregulation cannot, in most cases, prevent states from adopting vacated federal regulations under their
own law. Even though policy alterations from one president to another are common in this era of polarization,
there is more continuity than discontinuity in the federal system because the system’s coexisting dual, cooperative,
and coercive states are highly institutionalized and pushed by recent history in their current direction.

B) Federalism worsens coronavirus response

Feldman 20 [Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at
Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius,
Partisan, President.” U.S. Federalism Isn’t Great at Handling Pandemics. March 19, 2020. https://www.bloomberg.com/opinion/articles/2020-
03-19/coronavirus-pandemic-shows-challenges-of-u-s-federalism]

One of the weirdest things in this weird historical moment is the hodgepodge nature of the coronavirus
responses from different state, county, and local governments throughout the United States. In essentially every
other country on earth, central government authorities are directing and running the response to Covid-19. If Italy shuts down, it’s the Italian
government that decides to do it. If Germany chooses to end hotel stays, it’s Chancellor Angela Merkel who makes the call. But in
the U.S.,
separate Bay Area counties can go one way, the mayor of New York another, and the governor of Massachusetts
yet a third. There’s little if any national coordination. It hardly seems like an optimal arrangement during a
global pandemic. The explanation for this bizarre diversity of uncoordinated responses can’t be laid solely at the feet of
President Donald Trump, despite his alarming lack of leadership. The deeper explanation is the distinctive,
peculiar system of U.S. federalism. We have a national Centers for Disease Control and Prevention and a Federal
Emergency Management Agency. But they don’t exercise direct supervisory authority over state, county or
local boards of health — just as Trump has no supervisory authority over state, county or local executives. Most of the time, the
pervasively federal nature of how government power is deployed in the U.S. goes unnoticed, simply because it seems so normal to Americans.
We take it for granted that schools, say, don’t fall into a national bureaucracy and aren’t under a single national set of standards. We accept
that police forces are uncoordinated and that they don’t work for the Federal Bureau of Investigation. When we do notice
federalism, we tend to accept its inefficiencies because of the desirable democratic benefit we think it
provides: We get better self-government, we think, when decisions are made nearer to home, not far off in Washington, D.C. The
unique conditions of a pandemic call that tradeoff of inefficiency-for-democracy into question. The
virus isn’t local. It’s global. It doesn’t respect state of national borders, no matter that many national governments are
trying to close their borders to keep it out. When it comes to strategies for containment , non-coordination seems
not charmingly democratic but worrisome. If some states or cities are too slow to control the virus, that
will affect all the others — because the virus will gain steam and eventually spread even to the places
that have imposed controls. Weak pandemic control is the ultimate example of what economists call a negative externality, a
spillover effect that harms others, not just those who are acting (or failing to act) themselves. In a perfect world, the ideal answer
to these federalism-based coordination problems would be for the federal government to preempt
state actors and agencies and command and control a national response. Federal law allows for roughly that
approach. Technically, states would have to agree to put their officials under federal direction; states can’t be “commandeered” without their
consent. But presumably in a time of emergency, most states would fall into line. That
isn’t happening. The federal response
so far has been haphazard and inadequate. We would be much better off with strong leadership, informed
by public health science and policy, but we don’t have that right now.
 2AC FAST ACT DA – T/L
A) If it doesn’t pass in September, they’ll add it on later.
Mulero, '20 (Eugene Mulero, "Infrastructure Stakeholders Press Congress for Highway Law Extension," Transport Topics,
https://www.ttnews.com/articles/infrastructure-stakeholders-press-congress-highway-law-extension, 9-10-2020)//ILake-NoC

If Congress is unable to advance a multiyear update of the FAST Act by Sept. 30, alternatives besides
inaction would be to either pass a temporary extension of the law or include such an extension in must-pass
federal funding legislation. Federal funding authority via appropriations also expires Sept. 30.

B) OR, it’ll pass with a stopgap continuing resolution.

Ichiniowski, 9-14 (Tom Ichniowski has been writing about the federal government as ENR’s Washington Bureau Chief since the
George H.W. Bush administration, and he has covered at least five major highway bills. A recognized expert on government policy on
infrastructure and regulation, Tom is also a Baltimore native and Orioles fan who grew up rooting for Brooks and Frank Robinson. He is a
graduate of Columbia College and Columbia’s graduate school of journalism, where he once used “unrelentless” in a headline., "Will FAST Act
Extension Hitch a Ride on a CR?," No Publication, https://www.enr.com/articles/50045-will-fast-act-extension-hitch-a-ride-on-a-cr, 9-14-2020)
AT

When construction and transportation officials look at the calendar, their eyes are riveted on Sept. 30, when the current highway-transit authorization bill, the 2015
Fixing America's Surface Transportation, or FAST, Act is due to lapse. Sept.
30 also marks the end of fiscal year 2020 and the date
by which Congress must pass at least a temporary appropriations extension, to avert a government
shutdown. Industry groups are hoping Congress will resolve both issues with one bill: a stopgap overall spending package that also extends the FAST Act for a
year. A stopgap continuing resolution , or CR, has been under negotiation and is expected to be

considered by the full House during the week of Sept. 21, a House Democratic aide told ENR via email on Sept. 14. On the
FAST Act front, political realities, and the shortage of time, had led industry groups to shift tactics, for
now, from lobbying for their goal of a multi-year, well-funded bill. Instead they are pushing for a one-
year extension. Susan Howard, American Association of State Highway and Transportation Officials (AASHTO) program director for transportation finance,
says AASHTO, industry and Capitol Hill “are coalescing around the desire to have a one-year extension of the FAST Act.” For example, Senate Environment and
Public Works Committee Chairman John Barrasso (R-Wyo.) prefers the five-year, $287-billion highway bill his panel cleared in July 2019, says committee
spokesperson Sarah Durdaller. But
she says if a long-term bill isn’t doable by Sept. 30, Barrasso wants an extension
to run for at least a year to avoid disruptions in construction and planning. In the House, Rep. Sam Graves (Mo.), the
Transportation and Infrastructure Committee's top Republican, believes that "an extension of at least a year is in the best interests of the stakeholders," spokesman
Justin Harclerode said via email. He added that in Graves' view, "In lieu of a full reauthorization, that will provide the greatest amount of stability for states,
construction seasons and job creation." Stand-alone or CR Durdaller says Barrasso would support a one-year extension “ as a
stand-alone bill or as part of a must-pass bill.” Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi (D-Calif.), have said
they want a “clean” CR that extends spending at 2020 levels but generally excludes non-appropriations provisions . A FAST Act provision might

not seem to fit that definition of a “clean” bill. But the House aide told ENR that extensions of expiring
authorizations are one of several items that will be discussed in the negotiations . The Office of Management and
Budget had sent Congress a list of more than 60 such expiring authorizations, including the FAST Act. Mnuchin also said the CR is expected to extend overall federal
appropriations only into December. But infrastructure advocates are hopeful that negotiators will agree to extend
the FAST Act for a full year.

A) Bills are compartmentalized.

Edwards ‘2k (George; March 2000; Professor of Political Science at Texas A&M University, Director of the Center for Presidential
Studies; Presidential Studies Quarterly, Vol 30. No 1. “Building Coalitions,” p. 6)

Besides not considering the full range of available views, members of Congress are not generally in a position
to make trade-offs between policies. Because of its decentralization, Congress usually considers policies
serially, that is, without reference to other policies. Without an integrating mechanism, members have few means
by which to set and enforce priorities and to emphasize the policies with which the president is most
concerned. This latter point is especially true when the opposition party controls Congress.

A) Current bills neglect the HTF—Congress is failing to reconcile differences which

takes out uniqueness.
Mulero, '20 (Eugene Mulero, "Infrastructure Stakeholders Press Congress for Highway Law Extension," Transport Topics,
https://www.ttnews.com/articles/infrastructure-stakeholders-press-congress-highway-law-extension, 9-10-2020)//ILake-NoC

To be sure, Congress is attempting to update the FAST Act. Over the summer, the House gave partisan approval to a massive
infrastructure bill that included an update of the 2015 highway law. Last year, a Senate committee gave bipartisan backing to a five-year, $287
billion update of the FAST Act. Neither
party has announced negotiations to reconcile differences in the bills.
Both measures stopped short of proposing a long-term fix for the Highway Trust Fund. The fund, projected to
run low in the months ahead, is backed by insufficient revenue from the 24.4 cents-per-gallon diesel tax and 18.4 cents-per-gallon
gas tax. Those rates were set in 1993.

B) Losing HTF is detrimental to essential infrastructure—it’s dying now and thumps

the DA.
PGPF, ’20 (Peter G. Peterson Foundation, “The Highway Trust Fund Explained,” Peters G. Peterson Foundation, 8-14-20)//ILake-NoC
WHERE DOES THE HIGHWAY TRUST FUND GET ITS FUNDING? The Congressional Budget Office (CBO) reports that the Highway Trust Fund
received 82 percent ($36 billion) of its revenue in 2019 from excise taxes on motor fuel, commonly known as the “gas tax.” Since 1993, fuel tax
rates have been fixed at 18.4 cents per gallon for gasoline, and 24.4 cents per gallon for diesel. Taxes on tires and heavy vehicles (trucks) make
up the rest of the fund’s income. Because the federal
gas tax is not pegged to inflation, the purchasing power of the
revenue has eroded over time — 18.4 cents buys 43 percent less in 2019 than it did in 1993. What’s more, rising construction
costs and the growing needs of an aging highway system have placed a greater strain on the fund, resulting
in recurring funding shortfalls in recent years. Decreasing fuel consumption as a result of both higher fuel efficiency from gasoline-
powered vehicles as well as from more hybrid and electric cars on the road will ensure that those shortfalls persist if left unaddressed. The real
purchasing power of the federal gas tax has declined by 43% since 1993, the last time it was increased HTF funding shortfalls have generally
been filled by transfers from the Treasury’s general fund; such transfers have shifted a total of $144 billion to the fund since 2008, including $70
billion authorized in the Fixing America’s Surface Transportation Act in 2015. Such transfers do not bring in any new federal revenues, but they
allow spending from the fund to continue. WHAT IS THE OUTLOOK FOR THE HIGHWAY TRUST FUND? The HTF faces recurring — and
increasingly large — funding shortfalls due to an imbalance between revenues and spending . The lack of
agreement on a structural fix to this imbalance creates periodic funding crises that put the infrastructure
system at risk. CBO projects that the Mass Transit Account will be exhausted in 2021 and the Highway Account in 2022; in 2019 alone, the
Highway Trust Fund’s outlays exceeded revenues by $11.6 billion. What’s more, CBO projects that the cumulative shortfall in
funding for the Highway Trust Fund will grow rapidly over the next 10 years to almost $190 billion in 2030 — that
projection does not take into account any effects from the public health emergency caused by the coronavirus (COVID-19) pandemic.
From 2020 to 2030, the Highway Trust Fund is projected to accumulate a funding shortfall of nearly $190 billion WHY IS THE HIGHWAY TRUST
FUND IMPORTANT FOR AMERICAN COMPETITIVENESS? The Highway Trust Fund provides a steady source of funding for
investment in and maintenance of essential infrastructure. Likewise, safe and efficient infrastructure is a significant
contributor to economic growth and productivity. Yet, by many measures, the current system is not meeting America’s 21st
century needs. According to the World Economic Forum, the United States ranks 17th in road quality, and 13th in overall infrastructure
quality.
No food wars
Salehyan, 8 – Department of Political Science, University of North Texas (Idean, “From Climate Change
to Conflict? No Consensus Yet,” Journal of Peace Research, May, palgrave)

First, the deterministic view has poor pre-dictive power as to where and when conflicts will break out. For
every potential example of an
environmental catastrophe or resource shortfall that leads to violence, there are many more counter-
examples in which con-flict never occurs . But popular accounts typ-ically do not look at the dogs that do not bark. Darfur is
frequently cited as a case where desertification led to food scarcity, water scarcity, and famine, in turn
leading to civil war and ethnic cleansing.5 Yet, food scarcity and hunger are problems endemic to many countries –

particularly in sub-Saharan Africa – but similar problems elsewhere have not led to large-scale violence. According to the Food

and Agriculture Organization of the United Nations, food shortages and mal-nutrition affect more than a third of the popu-

lation in Malawi, Zambia, the Comoros, North Korea, and Tanzania,6although none of these countries
have experienced full- blown civil war and state failure. Hurricanes, coastal flooding, and droughts – which are all likely to intensify
as the climate warms – are frequent occurrences which rarely lead to violence. The Asian Tsunami of 2004, although caused by an oceanic earthquake, led to severe
loss of life and property, flood-ing, population displacement, and resource scarcity, but it did not trigger new wars in Southeast Asia. Large-scale migration has the
potentialto provoke conflict in receiving areas (see Reuveny, 2007; Salehyan & Gleditsch, 2006), yet most migration flows do not lead to conflict, and, in this regard,
social inte-gration and citizenship policies are particularly important (Gleditsch, Nordås & Salehyan, 2007). In short, resource scarcity, natural disasters, and long-
term climatic shifts are ubiquitous, while armed conflict is rare; therefore, environmental conditions, by themselves, cannot predict violent outbreaks. Second,
even if local skirmishes over access to resources arise, these do not always escalate to open warfare and
state collapse. While interpersonal violence is more or less common and may intensify under resource pressures,
sustained armed conflict on a massive scale is difficult to conduct. Meier, Bond & Bond (2007) show that, under certain
circumstances, environmental condi- tions have led to cattle raiding among pas-toralists in East Africa, but these conflicts rarely escalate to sustained
violence. Martin (2005) presents evidence from Ethiopia that, while a large refugee influx and population pressures led to localized conflict over natural resources,
effective resource managementregimes were able to ameliorate these ten-sions. Both of these studies emphasize the role of local dispute-resolution regimes and
institutions – not just the response of central governments – in preventing resource con-flicts from spinning out of control. Martin’s analysis also points to the
importance of international organizations, notably the UN High Commissioner for Refugees, in imple- menting effective policies governing refugee camps.
Therefore, local
hostilities need not escalate to serious armed conflict and can be managed if there is the
political will to do so.