Monthly Archives: October 2011

Protect “Shamu” Under The 13th Amendment?

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

I am a big fan of the animal we all know as, “Shamu.” I feel it would be fair to say that most people like orcas or “killer whales” as they are sometimes called. Growing up not far from SeaWorld Orlando partly has to do with my love of the cute black and white mammal. Also, I am sure being a child of the 90s contributed to my feelings about “Shamu.” Who could forget Free Willy or any of its sequels?

That being said, the idea that whales fall under the protections of the U.S. Constitution seems preposterous to me, but that idea is exactly what PETA is arguing in their latest lawsuit against SeaWorld. Although it appears to be a far stretch of the imagination to even consider that whales to have constitutional rights, it is even more bizarre that PETA is asserting SeaWorld has violated the 13th Amendment. PETA recently filed a 20 page complaint in the U.S. District Court for the Southern District of California in San Diego.[1] In their complaint, PETA states that 5 orca whales housed at SeaWorld, Tilikum, Katina, (from SeaWorld Orlando) and Corky, Kasatka, and Ulises (at SeaWorld San Diego) are being enslaved by the marine parks.[2]

The President of PETA believes this is a slavery issue because “[a]ll five of these orcas were violently seized from the ocean and taken from their families as babies. They are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks.”[3] In the lawsuit, PETA asks the court to grant an order which will free the orcas “from bondage” and wants an injunction preventing SeaWorld from keeping the whales enslaved.[4]

SeaWorld, of course, disagrees with these accusations. SeaWorld stated “[the company] is among the world’s most respected zoological institutions…[t]here is no higher priority than the welfare of the animals entrusted to our care and no facility sets higher standards in husbandry, veterinary care and enrichment.”[5] The company contends the orcas are in the parks to provide education and enrichment to the public about whales and their habitats.[6]

It’s clear that both sides of the suit have different views about the how the whales are being cared for. However, the more important question is what the law says. The 13th Amendment states in Section 1, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” PETA argues the amendment makes no reference to human slavery, and therefore, should also apply to animals. PETA’s General Counsel asserts the 13th Amendment should not be limited in its application because “[s]lavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race, or religion.”[8] Even though it is true the amendment has no textual indication that it only applies to people, upon examination of the historical context of the amendment, it becomes overwhelmingly obvious the amendment was ratified in order to protect human beings.

The 13th Amendment was ratified in 1865, eight months after the conclusion of the Civil War.[9] The amendment, enacted to end to the institution of slavery, gave power to Congress to enforce the amendment. With this power, Congress passed the Civil Rights Act of 1866, which gave blacks “the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” However, the Supreme Court has indicated that the 13th Amendment is limited in its scope. In Butler v. Perry, the Court found “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery, which in practical operation, would tend to produce like undesirable results.”[10] It is hard to stretch the imagination to equate the treatment of whales with America’s history of slavery. Some fear that even trying to make this connection is offensive to the African-American community. On the other hand, Nicholas Johnson, a law professor at Fordham University School of Law states he was “more entertained by it in the legal context than [he was] offended by it.” It is pretty apparent from precedent that the Court will be unlikely to extend 13th Amendment protections for the type of so-called “enslavement” being alleged in this case.[11]

In addition, PETA faces another obstacle in this lawsuit. Currently, animals do not have rights and are not covered by the U.S. Constitution. Animals are considered property for the purposes of the law, and thus, do not have legal standing. However, animals are not left defenseless. Animals are, instead, protected by specialized federal laws, such as the Animal Welfare Act. Moreover, marine parks are governed through the Marine Mammals Protection Act.[12] This act permits parks, like SeaWorld, to exhibit animals for educational purposes and requires them to follow certain guidelines. So, in a sense, the government has extended some minimum protections for marine mammals in captivity. Nevertheless, for animal rights activists, these protections are not enough. Michigan State University Law Professor David Favre has proposed a new legal classification entitled, “living property,” should be developed to grant animals additional rights under the law.[13] Yet, as the law currently exists, it is highly unlikely that constitutional protections will be extended to the orcas.

Like it or not, “Shamu” is not currently protected by the U.S. Constitution. PETA has indicated this lawsuit is the first case of its kind to try to extend the protections of the 13th Amendment to nonhumans. They will most likely not be successful in this venture. In fact, most experts believe the lawsuit will be disposed of on the issue of standing. Therefore, the courts will not even hear the case on its merits. Furthermore, PETA will probably not be able to convince the courts that “Shamu” should have constitutional rights. Many animal rights groups hope this lawsuit will be a vehicle for change in the area of animal rights. If PETA’s goal was to gain attention for their cause, it appears they have succeeded. Their lawsuit has made national and international news, with headlines such as this one in The Independent (London) “Free Willy-his rights under the US Constitution are being violated; PETA says that park has violated provision banning slavery in the United States[14] (evidently Free Willy has not been forgotten in the U.K.). “Shamu” may not have rights today, but it appears there is a movement afoot to help achieve rights for orcas in the future.

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Amendment 26 Is A Mississippi Bad Idea

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Our neighbor to the west and my home state, Mississippi, could become the first state to effectively ban abortions next month if many pro-life supporters have their way. On November 8th, Mississippi voters who approach the voting booth to vote for the state’s next governor will also be faced with the initiative to amend the state constitution to define “personhood” as life that begins at conception – the moment a human egg is fertilized.

The initiative, known as Amendment 26, is backed by the Colorado-based group Personhood USA. Their mission statement declares their mission to be “to serve Jesus by being an Advocate for those who can not [sic] speak for themselves, the pre-born child. We serve by starting / coordinating efforts to establish legal ‘personhood’ for pre-born children through peaceful activism, legislative efforts and ballot-access petition initiatives.” Personhood USA is currently assisting in petition initiatives in several states, including Florida, Montana, Oregon and Ohio. Several states, including Alabama, have had Personhood USA-supported bills presented in their state legislatures, but only Mississippi will have the amendment proposal on their ballots this election year. Similar amendment proposals were defeated by voters in Colorado in both 2008 and 2010.

The language that Mississippi voters will encounter on the ballot reads: “Be it Enacted by the People of the State of Mississippi: SECTION 1. Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION TO READ: SECTION 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.”

Personhood USA and its Mississippi branch, Personhood Mississippi, hope to have greater success with their proposal in Mississippi, which is one of the most conservative states in the country. If Amendment 26 passes, it would define “person” to “include every human being from the moment of fertilization, cloning or the functional equivalent thereof” – which would make abortions illegal in the state, including those pregnancies that occur as a result of incest or rape.

Of course, the first question that should be asked about Amendment 26’s impact on a woman’s right to choose is “What about Roe v. Wade?”  In the well-known Supreme Court decision, the Court held that there is a fundamental due process right to decide to terminate a pregnancy, although within reason. In Roe, the majority used a strict scrutiny approach to analyze Roe’s challenge to Texas’s criminal abortion statutes. Strict scrutiny is applied when there is a fundamental right involved; in order for Texas’s statutes to survive a strict scrutiny challenge, there must have been a compelling state interest and the means used to regulate abortion must have been narrowly tailored. Texas claimed a compelling interest in ensuring patient safety and protecting prenatal life, but the Court held that a fetus is not a “person,” thus there was no real state interest in protecting the “life” of the fetus. Instead, the court held that the state may have an interest in protecting maternal life, but only at the end of the first trimester of the woman’s pregnancy. Only once the second trimester begins may the state regulate abortion.

To some, the Roe decision should be the nail in the coffin for Amendment 26.  However, Personhood Mississippi views the rationale used in Roe as the reason Amendment 26 will succeed. The Mississippi Personhood Memorandum points to two cases cited by the Court in Roe that recognize a state’s right to define “person” in a manner that is more protective of an unborn child, McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (W.D. Pa. 1972) and Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194 (N.Y. 1972).

According to the Memorandum, this right of the state to define terms at its discretion will allow the state to effectively ban abortions in the state while not enacting laws that explicitly state the illegality of abortion. In fact, the Memorandum states, “It cannot be emphasized too strongly that the Amendment does nothing more than define the word ‘person.’ It does not criminalize abortion . . . .” Instead, declaring a fetus to be a person would allow the state courts or legislature to appoint the unborn a representative to advocate for the unborn in a judicial decision regarding whether the pregnancy could be terminated. However, the Memorandum sees the judicial process to terminate the pregnancy a non-issue – the Memorandum states that it would be “difficult, if not impossible to imagine a basis depriving the innocent child of life . . . .”

Oddly enough, the Memorandum also recognizes that if the Initiative passes, it will immediately be met with challenges from individuals and women’s rights groups. The group even “safely assumes” that the federal courts will find the Amendment unconstitutional under Roe. Despite the challenges and likely unconstitutional finding by a federal court, the Personhood USA remains optimistic. Keith Mason, a co-founder of Personhood USA, has said that a positive vote in Mississippi would send shock waves around the country, creating a momentum that could be used to eventually amend the U.S. Constitution.

What is curious about Personhood Mississippi’s faith in the Amendment’s ability to basically defeat the Supreme Court’s reasoning in Roe is that the group utterly ignores the Court’s holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In that case, the Court upheld the following essential parts of Roe: (1) women have a right to abortion before fetal viability; (2) the state does have an interest in restricting abortions after viability; (3) the state does have interests in protecting both the life and health of the mother and the potential life of the fetus. However, unlike in Roe, the Court did not rely on a strict scrutiny test, but rather focused on the burden abortion regulations placed on women. Casey did not overturn the Roe decision, but instead re-emphasized a woman’s right to choose by ensuring that any state restrictions on her choice were not so burdensome as to effectively eliminate her free choice. It is Casey, not Roe, that should concern Personhood advocates.

If Amendment 26 passes in Mississippi, it will be challenged not only on Roe standards and a woman’s right to abort but also under Casey’s undue burden test. Unfortunately for Personhood Mississippi, Amendment 26 probably will not withstand an undue burden examination. The objective of Amendment 26 is to effectively ban abortions in the state of Mississippi. Moreover, the current unavailability of abortions in Mississippi is probably the most burdensome restriction of all.

Nevertheless, perhaps not surprisingly, Amendment 26 has raised issues beyond a woman’s right to choose to terminate her pregnancy. One of the most contentious talking points surrounding Amendment 26 is the effect its passage would have on contraceptives and IVF. Proponents of the measure state while they do not condone the use of contraceptives, the Amendment will not outlaw “the pill.” Another pro-Amendment group, Yes on 26, states on their website that they oppose the use of contraceptives that act as abortifacients, which the group concedes could include some forms of the pill, intra-uterine devices (IUDs) and the “morning-after pill.”  Proponents oppose contraceptives such as these because they do not allow for the implantation of a fertilized egg. If “personhood” begins with fertilization, anything that deprives the “person” of life has violated its due process rights, and anyone who has caused the deprivation could be held liable.

In a similar vein, Yes on 26 promises that IVF would not be banned by the new definition, but it would place limits on the process. During in-vitro fertilization, several fertilized embryos may be created, but usually only one or two embryos are implanted in the woman, as recommended by the American Society for Reproductive Medicine. Any remaining embryos are usually frozen and stored in case the implanted embryos fail to result in a pregnancy. However, if there is a situation when embryos could or would be destroyed at the request of the parents, under Amendment 26, the parents, doctors or technicians could be held liable.

Those opposing the Amendment claim a redefinition of “personhood” would effectively ban many birth control methods, including the pill and IUDs. Parents Against MS 26 argue because many oral contraceptives change the lining of the uterus to keep a fertilized egg from implanting and developing, the new definition of personhood would keep these contraceptives from being available, even when needed for non-contraceptive medical uses. Parents against MS 26 also claims while the Amendment may not facially ban IVF, the definition of personhood would be a de facto ban on the treatment since IVF carries a risk of the destruction of embryos, whether intentional or accidental. Many university newspapers in Mississippi have published opinion articles by students against the Amendment, including an article in the Daily Mississippian, the University of Mississippi’s student newspaper. In the article, the writer wonders if the Amendment would allow women who miscarry to be prosecuted for manslaughter or even murder. While proponents of Amendment 26 denounce this theory as nothing more than a scare tactic, the logical extension of a new definition of personhood could result in such stark repercussions.

On November 8th, the voters of Mississippi will probably pass Amendment 26.  Both gubernatorial candidates have publicly backed the measure and polls conducted by the state’s major newspaper indicate that public sentiment backs the amendment.  Mississippi is widely recognized as one of the most conservative states in the U.S., as well as one of the most religious, and these superlatives will probably be the reason the Amendment passes. I think passing the Amendment will be a mistake and a waste of state resources and time.

Amendment 26 is a mistake, regardless of the good intentions behind the definition change because the repercussions extend beyond banning abortion. While advocates claim the new definition of person would not affect the availability of contraceptives or IVF, if these methods affect the existence of a fertilized egg, the definition will indeed affect contraception and IVF. Again, this is a mistake and a potentially devastating effect of the Personhood movement. Mississippi already has the highest teen pregnancy rate and highest infant mortality rate. By decreasing or even eliminating the availability of contraceptive devices, this measure could prove costly for the state and its taxpayers.

Amendment 26 will result in criminal prosecutions of women who have miscarriages, even though I agree with Yes on 26’s stance that such a claim is nothing more than a scare tactic. I also feel that Yes on 26 presents many distasteful statements of their own – including the declaration that “Planned Parenthood makes millions of dollars every year by killing babies.” Both sides have engaged in offensive smear campaigns, with both sides exaggerating the possible repercussions and ignoring the logical extensions of the plan. Even after reading countless articles and perusing websites by both advocates and opponents, I admit that I still am unsure of the real effects the new  amendment would have – other than changing the definition of “person.” My only hope for Mississippi voters is that they make an effort to discern the truth – because man, woman, mother, father, conservative, liberal, abstinent, indulgent – it will affect them and those they love.

The irony in all of this is that regardless of the outcome at the voting booth, the Amendment will not stand. Roe and Casey both held that a woman has a fundamental right to choose and that the state can place no undue burden on her rights. Absent a dramatic reversal of precedent, the long-term effects on the state will be few. Mississippi may enact Amendment 26 and it may change the reproductive rights of women in the state for a short time, but Amendment 26 is sure to be met with a multitude of legal challenges and the clear holdings of Roe and Casey should ensure women’s rights will prevail.




Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Are Cultural Rights Civil Rights?

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

On the night of September 25, 2011 the Catalonia region of Spain held its final bullfight. Many Americans think of bullfighting as a sport practiced by our neighbors to the south and could not care less about this ban. Most of our knowledge comes from seeing the cartoon character Bugs Bunny waving a red cape in the face of the occasional bull and then watching it slam into a brick wall as the cape was moved. But there is so much more to this sport than just bullfighting, and the chances that future generations will ever truly learn and understand its beauty are fading fast.

The pastime of bullfighting, considered (depending on your view) to be both noble and barbaric, has been a part of the Catalonian tradition since at least 1387, and provides its bullrings as some of the oldest and most revered structures still standing, in not just Catalonia, but all of Spain, with some dating back to the 1850s. There is no clear picture of where the sport of bullfighting originated; however, many believe it is related to the practice of ancient bull worship and sacrifice.  Nevertheless, it is generally agreed upon that the sport, as seen today, originated in 1726, when a man first stood toe to toe with a bull and introduced spectators to the now infamous red cape. Some also say the tradition stretches as far back as to the time of Roman Emperor Claudius in 41-54 AD, when he initiated this “sport” as a regional replacement for the gladiator.

Since the 1700s, the past time has grown. The sport has grown to have fans all over the world including: Portugal, France, Tamil, India, Oman, Mexico, and even the United States (Where do you think we got the idea for the rodeo clown?).  However, with all of this growth, Spain is still the place where the roots of respect, fear, and honor for the bull all run the deepest. Catalonia, which may be the first to have bullfighting, is certainly not the first part of the world to raise a ban of this kind. Similar bans on the sport have sprung up in other areas as well, including parts or all of Colombia, Ecuador, France, Portugal, Spain, and Venezuela.

On the day of the final bullfight that Barcelona may ever see, people took to the streets, protesting both for and against the age-old tradition. Some, glad to see the sport being put to an end, were there to protest the arena’s “blood-sport” one last time. Others were there to protest the stealing of their heritage. Those who are true fans of the bullfight see it as more art than sport.  To many, it is less about the fact that the matador defeats the bull, but instead how he defeats it.  In fact, time is not really a factor as the fight is actually sectioned into three stages or tercio which is designed as a chance for a professional to display his grace, athleticism and wit to the audience. The big difference between this and many American rodeo events is the imminent death of the animal.

The law that took away Catalonian bullfighting passed with the approval of 68 of the 132 members of the Catalonian parliament. It specifically repealed an existent section of an animal rights law existent in Catalonia which protected bullfighting. The Catalonian government also added to the existing laws, by explicitly banning almost all bull-based recreational activities in the region.

Now, what does this have to do with civil rights you may ask? A civil and/or political right can be described as a person’s right to act in the state’s civil and political realms without fear of repression. Obviously, voting away bullfighting probably should not be considered on par with enacting a law that discriminates against someone based on race or religion, but a group of people lost their past time because an estimated 60 percent of Spaniards and 180,000 Catalonian petitioners decided they no longer approve of the sport. Some may call this democracy in action, and technically they may be right. A popularly elected legislature did, in fact, vote to outlaw the sport in Catalonia. In fact, many Spaniards have argued that this is simply the Catalonian parliament taking an opportunity to show the rest of Spain just how different and independent they are from the rest of the country.

We are seeing a group of Spaniards stripped of rights.  These rights may not be as vital to modern life as others (life, liberty and the pursuit of happiness property anyone?), but as of January 1, 2012 (the date the ban officially goes into effect), the right to participate in or watch a bullfight is no longer one that will be held by citizens of the Catalonia region of Spain.

Bullfighting and other local practices worldwide are being killed by globalization and homogenization. The world is able to completely see and experience what happens in a bullfight and many throughout the world disapprove. Animal rights groups are usually more than willing to point out how cruel it is to kill a bull, although the animal’s meat is then given to the poor for consumption. Perhaps McDonald’s does not kill their cows in such a way, but something tells me they kill many more in a year than bullfighters do. However, we do nothing so drastic to prevent the death of those bovine animals. This is not to say I support bullfighting or the cruel treatment of animals (or that bullfighting is or is not cruel), instead I support people stepping back and trying to appreciate other people’s cultures and traditions the way they see them. I’m not talking here about the rights of animals; I’m concerned with the rights of people.

This begs the question of how we are affected. Why does this matter to the average American citizen?  In all honesty, this isolated event does not. But events like this have affected the way of life celebrated by many Americans from a variety of backgrounds. If I were to try to take away part of someone’s religious practices (such as the sacrifice of an animal, consumption of peyote or even something as simple as the distribution of wine to minors during mass), they would take me all the way to the Supreme Court, if necessary, in order to get the right to that practice back.  While it may be true that bullfighting is not a part of Catholicism or Buddhism or any other acknowledged religion that I am aware of, people who follow the bullfighting treat it as a more important part of their lives than most Americans treat religion (in reality, this probably includes me).

Practices fade, I understand.  And, maybe it is time for bullfighting to fade into history along with practices such as bear-baiting.  However, it is this often overeager practice of eliminating the old that worries me.  As we move forward we have provisions, both domestically and internationally, that protect people’s life, as well as things such as voting, speech, and freedom from discrimination based on various grounds, but what about protecting our culture and our heritage?

When we consider a person as a whole, they should be more than just a race, ethnicity and gender.  Those are the things they are born into, not what they choose.  At what point will we decide that something that is being stripped from people is a part of their heritage and should be protected as such by the law?

Article 27(1) of The United Nations Universal Declaration of Human Rights states that “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” There’s a start. This is definitely a little vague, but for being written directly post-WWII, it looks(ed) like a step in a good direction. This gives us the right to participate, but then how are we to preserve the culture of the minority if someone takes away part of our cultural life?  In China, the government in Beijing has been slowly attempting to eliminate the base of Tibetan culture by only providing education in Mandarin Chinese and not in their native Tibetan. Will that be the straw that makes us realize that a minority’s traditions and practices can be and are stripped away when they are integrated into a minority that does not agree with or practice those same tenants?

In the United States, we have seen the Supreme Court stand as a last barrier between the elimination of many traditional practices which have been banned by local ordinances. However, these have come usually from religion-based cases such as City of Hialeah (animal sacrifice) or US v. Boyll (use of peyote) where a practice was held to be acceptable because of the religious significance it holds. However, The Court has placed limits on the use of religious practices to shield a cultural practice as in the other peyote case, Oregon v. Smith. Much like these barriers, some Spaniards are attempting to challenge the bullfighting band through their own legal system, and I wish them luck in restoring their tradition. Bullfighting may not be a religion in our traditional sense, but to many it is just as important to their lives as church is to many Americans. This type of following begs the question of where we draw the line between the protection of religious practices and the elimination of other practices, but that is another issue, for another time, in another post.

So, for now, the only legitimate conclusion I can see in the present legal climate is acceptance.  There is no legal repercussion for what has been done in Catalonia. A narrow majority spoke, and their voices were heard. For all practical purposes, that makes it ok. It just seems unnecessary to rob someone of their traditions for your own reasons, instead of letting them decide when and how the traditions will fade. Like many other traditions, the bulk of those who carry it on are of an older generation. So for the time being, the tradition will still be carried on in other areas of Spain, but for how long? In the words of Ernest Hemingway as he wrote about Bullfighting, “Anything capable of arousing passion in its favor will surely raise as much passion against it.” This time, passion against appears to have won the battle; however, the outcome of the war has yet to be seen.

Sources include:

 Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Alabama’s Immigration Law Does No Good

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama House Bill 56 is the latest and most aggressive state immigration law to date. According to Micky Hammon, the bill’s chief sponsor, it was designed to “attack every area of an illegal alien’s life.”  Surpassing the controversial Arizona and Georgia legislation, the bill calls for strict enforcement of its measures, which range from creating a civil cause of action against employers who fire citizens while retaining illegal aliens; requiring public schools to determine the immigration status of all incoming students and their parents;  to requiring police officers to make a reasonable attempt to determine the residency and immigration status of a person stopped, if there is a reasonable suspicion that the person is an illegal immigrant.

The new law, passed in by the Alabama legislature and signed by Governor Robert Bentley, has already been challenged as a preemption of federal power, with mixed results.  But perhaps more interesting is the specter of racism cast by this law. There are illegal immigrants of every color in this country.  However, it is the Hispanic community, both U.S. citizens and illegal immigrants, which has become the focus of this debate.  As such it is only appropriate to consider the effects of the bill on both groups.

Latinos make up approximately 3.9% of the Alabama’s population, or about 185,602 people.[1]  It is estimated that illegal immigrants make up around 64% of the Hispanic population, or around 120,000 people.[2] Moreover, the two groups are often interwoven—i.e. children, who are citizens, may have parents who are here illegally.  The implications of H.B. 56 for Hispanic citizens of Alabama are terrifying.  Already nightly newscasts are broadcasting stories on “How to Stay Safe,” which include tips like always carrying “papers.” After the passage of H.B. 56, Hispanic Americans are forever foreigners in the eyes of the fellow citizens—they must be constantly ready to prove that they belong here as citizens and lawful residents.  However, “showing papers” may be the least of these worries if the Alabama legislature is successful in getting the law enforced in its entirety.

U.S. District Court Judge Sharon Blackburn blocked some portions of the law which made it a criminal offense to conceal, harbor, transport, or shield an illegal immigrant.  If the Alabama legislature is successful in its appeal, many Hispanic families would be confronted with the dilemma of being forced from their home in order to keep their family together, or face criminal charges if they continue to have contact with family members who are illegally in the state. Furthermore, approved portions of the law place children, who are legally in the U.S., whose parents are illegal immigrants, in an untenable position. Also, H.B. 56 section 30 makes it a felony for an illegal immigrant to enter into a business contract with the State of Alabama.  The implications may not be apparent at first glance, but in many parts of the Alabama, utilities, such as water, sewage, and electricity, are only available through the State. Clearly, as claimed in the Federal appeal, Alabama’s new law is “highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings.”[3]

For those Latinos not lawfully in the U.S., the message is clear—Get Out. The only remaining question is where? Although some families are leaving the country voluntarily, many are simply crossing state lines. Either way, they are moving carefully, since the law became effective on September 29th , many illegal immigrants fear detention, or criminal charges, if they are seen by law enforcement. As Vianey Garcia, an illegal immigrant said, “We have to move. We have to leave everything.  We can’t take anything because I’m afraid they can stop us and say why are you moving?”

The repercussions of H.B. 56 are already apparent.  The Thursday the law went into effect (September 29th) scores of Latino students were absent from schools, and many have never returned.  Although it is too early for reliable statistics, anecdotal evidence from the community suggests many Latino families are fleeing in fear. Proponents of the law have lauded the early signs of success; they are driving immigrant families from the state. However, it is the climate of fear created by H.B. 56 that most worries its opponents.

Fear, it is the one word that cuts through every article, news report, and interview on H.B. 56. After all, the law is an “attack” on illegal immigrants; and by proxy, their family members who are legally in the U.S., and let’s be honest, Latinos in general. The law tried to create criminal and civil sanctions not just against illegal immigrants themselves, but also against anyone who would employ, transport, aid, or even encourage them—they have been cast as lepers by Alabama lawmakers. As the stereotypical face of illegal immigration, Hispanics face suspicion and disdain lest others be exposed to the taint of illegal immigration.

It has been said H.B. 56 and its Arizona and Georgia counterparts are a cry for help—an extreme reaction to the federal government’s inaction to state immigration concerns. And like most extreme measures, it has produced a result, but at what cost? The federal government has cited concerns that extreme state immigration policies interfere with the federal strategy and enforcement—hardly a convincing argument when it was the inaction of the federal government that prompted the passage of H.B. 56 in the first place. Civil rights groups, like the Southern Poverty Law Center, claim the law will lead to racial profiling, chill children’s access to education, and result in violations of the Due Process and Equal Protection clauses. Church leaders have also protested the law, claiming it violates, and in some cases would criminalize actions prompted by Christian values. The agricultural sector says it is unable to find a replacement workforce, that crops are rotting unpicked in the fields. For a state so recently ravaged by tornadoes, contractors are concerned that a dearth of workers will cause long delays in rebuilding the state.

Furthermore, proponents of the immigration law claim it is designed to protect the residents of Alabama from bearing the costs of illegal immigrants; but there is no clear evidence that illegal immigration creates a financial burden.[4] Moreover, evidence exists that illegal immigrants may be an economic boon. It is estimated that in 2010 illegal immigrants in Alabama paid $130.3 million in state and local taxes.[5] Furthermore, “if all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs.”[6]

I am not contesting the importance of resolving illegal immigration. It is an important issue that begs resolution, but H.B. 56 is not the solution; moreover, it creates more problems.Furthermore, I recognize that illegal immigrants are not United States citizens, and therefore not entitled to all of the rights and privileges guaranteed by the Constitution. However, this “attack” is not well executed, and both legal and illegal residents of Alabama have been harmed by its carelessness. H.B. 56 is so poorly crafted, and that is evident in that it has created enormous hardships without serving any of its stated interests. The problem of illegal immigration deserves more consideration than reactionary legislation.  History is filled with examples of minorities whose rights and liberties have been trampled because they are the scapegoat for a larger problem. The state of Alabama has a chance to choose a different road; to draw on its history and turn from the, perhaps popular, path of segregation and instead draft legislation that actually addresses the needs of its citizens.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Obama Administration Justified in Targeted-Killing

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Anwar al-Awlaki (Awlaki) is dead. Before September 29, 2011, this leader was relatively unknown to most citizens of the United States. However, Awlaki’s story has quickly developed and been publicized due to America’s demand for instantaneity and aggressiveness from its news sources. Why Awlaki was killed, who killed him, and the nature of his killing was exposed in two days. The covert operations penetrating his life, the intelligence leading to his demise and the subsequent blow to his constituency has been plastered across various print and electronic media. Everything from his religious beliefs, the way he lived his life, schools he attended, and the scope of his marriages are in steady conversation rotation across the country. As these facts continue to come to light, it is Awlaki’s citizenship which will most likely have the most significant impact in the foreseeable future.

Awlaki was an admitted member of al-Qaeda. He had every right to join al-Qaeda and promote the beliefs of his organization. Awlaki had free will to support al-Qaeda and encourage their direction. He routinely expressed his hatred for America and Western Civilization. Awlaki used his radical influence to cause harm and continue a jihadist “holy war” against America.  U.S. military officials have called him a master propagandist and said he had immense ability to harm our country.  Subsequently, his dedication led him to become a supremely powerful figure within their ranks. However, it was Awlaki’s actions, not beliefs, which led to his being targeted. Al-Qaeda’s destructive actions and operational tactics have been widely held as terroristic in America. Their attacks on American soil and around the world have led the U.S. government to classify them as a legitimate threat to our national security. Awlaki’s speeches indicate he knew of al-Qaeda’s extremist reputation and he used his position to perpetuate these actions himself. He publicly praised numerous attacks on the nation and was charged with plotting attacks. President Obama even described Awlaki as the “leader of external operations for Al-Qaeda.”  Awlaki was perceived as such a threat that he was approved for targeted killing by the Central Intelligence Agency (CIA). Naturally, he met the same fate as most do when they are placed on this list.

The death of Awlaki came early Friday morning while he was hopping into a pickup truck.  He was caught in the crosshairs of an armed CIA drone and there was nothing he could do.  His death was carried out in Yemen and has been widely praised by their government. It is broadly speculated that the Yemeni Government helped carry out this military operation. Nonetheless, the U.S. Government has not given the exactness of their intelligence. Yemeni officials have commented that Awlaki was a threat to all and that his death was the direct consequence of his actions.  This rationale aligns with the comments being made by United States officials.  However, there is an increasingly growing underlying conversation being had in America about this military action.  Anwar al-Awlaki was born in New Mexico, making him an American citizen.

The conversation being had is the legality of the U.S. government killing an American citizen without judicial process.  The critics of Awlaki’s killing point to the Fifth Amendment to the Constitution that states no one shall be “deprived of life, liberty, or property, without due process of law.” These critics argue that there was not a single legal process that led to Awlaki becoming the first U.S. citizen placed on the CIA’s targeted killing list. They argue that this is America and in America actions such as these have to be fulfilled through a legal process. Further, critics point to the potential precedent this targeted listing and killing imposes. It is believed this opens the door to expanded executive authority to the killing of Americans. The American Civil Liberties Union’s (ACLU) Deputy Legal Director Jameel Jaffer said, “It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.” Decriers say Awlaki’s murder goes against the framework of our country and has severely eroded the power of the judiciary.  The ACLU filed a lawsuit last year challenging the constitutionality of adding an American citizen to the targeted killings list. The lawsuit was dismissed and the federal judge noted that Awlaki had shown no interest in pursuing a claim in a U.S. justice system “he despised.” However, these conflicting views on the legality of the targeted killing of Americans has not been limited to the parties involved in litigating the preceding laws.

Presidential candidate Ron Paul has even expressed skepticism. He stated U.S. leaders must analyze “assassinating American citizens without charges” even if they do have strong terrorist ties and affiliations. Individuals with similar views of Ron Paul and the ACLU argue that there is no nexus between Awlaki’s actions and superseding the constitution. It is clear that he was implicated in various terrorist acts around the world, but Awlaki never was convicted in an American courtroom. It is this point that is fueling the debate. The critics of the killing argue that the Fifth Amendment requires a trial and conviction in court in order to kill any American citizen.

A quick resolution to this debate seems bleak since no real precedent exists.  Members of the legal community have tried to compare it to the detention of Americans who sided with our enemies in World War II. The precedent established by the actions taken in that point in history is unlikely to gain popularity because a lot of people do not accept America’s conflict with al-Qaeda as a real war. Robert Chesney, a law professor at the University of Texas who specializes in national security law, said that he does not believe “there has ever been a case quite like this.” With that said, most people opposed to Awlaki’s killing are not contentious about the circumstances surrounding his death. These people understand that he was a radical man and did not view America in the best light. However, they are worried about the slippery slope his placement on the targeted list has created.

Nevertheless, the Obama administration has heard the critics and has taken a position to rebut them. The Obama administration claims they were justified in placing Awlaki on the CIA’s targeted killing list because of his shifted focus and subsequent actions. They claim he went from a role of propagandist to operationally active during wartime. They point to Awlaki’s influence within the al-Qaeda sector in the Arabian Peninsula and his role in al-Qaeda in developing terrorist plots against America. The administration focused on three elements to support their argument when they rebutted ACLU’s lawsuit. First, they established that Awlaki was an imminent threat to American citizens. They produced evidence of his participation in plots to blow up specific American based airliners and cargo planes. Next, the administration relied upon the fact Awlaki was fighting with the enemy in armed conflicts against American forces. This was said to further his direct threat against America. Finally, and most importantly, the administration pinpointed the fact that they could not find a feasible way to arrest him. Awlaki’s dual citizenship, allegiance of followers, fleeing ability and pure determination to avoid capture made him “a hard target.” A hard target that was inevitably hit.

“If you’re a terrorist, you’re a terrorist,” exclaimed Secretary of Defense Leon Panetta when commenting on Awlaki’s killing. Anwar al-Awlaki was a terrorist.  He was a threat to anyone in this country and anyone whose religious and cultural views did not align with his. His preaching of violence and hate was heard around the world and became more threatening every day. He was just one man, but his influence inspired countless. My views support the officials around the globe acknowledging a safer world without him in it. A stereotype of the al-Qaeda network does not lead me to believe this way. My reasoning comes solely from the words out of his mouth. Awlaki’s destructive words and slant towards violence against America is unacceptable. And I fully agree with the Obama administration legal justification.

It is the federal government’s duty to protect the sovereignty of our nation and provide safety from threats.  Awlaki’s influence and his own hands were an immediate threat to American citizens. He preached for our deaths and took up arms against our troops. His actions were a direct threat against every citizen in the United States and considered treason in the U.S. Constitution (Article 3, §3). The Constitution further signifies that treacherous behavior is punishable by death.  Although Awlaki was not convicted of treason, his words and admittance to crimes made his traitorous stance clear. Furthermore, he was a wanted man and could have turned himself in to clear his name. Awlaki made the choice to elude law enforcement and forgo the judicial process.  America gives any citizen charged with a crime an opportunity to turn themselves in. Clearly, rectifying actions have to be taken when a charged party neglects this right, especially when federal organizations classify this party as a threat. It is true, Awlaki was not given a trial and this seems to cut against the Fifth Amendment. However, the Constitution has to be read and interpreted in the aggregate when the situation warrants. We know of at least three constitutional arguments that arise from Awlaki’s killing. His killing was executed without the exercise of the judicial process. Awlaki was thought to have committed treason. And it is the federal government’s duty to protect its citizens from foreign and domestic threats.

The Obama administration fulfilled their duty by adding Awlaki to the targeted killing list and executed their agenda. Taking away a President’s authority to order someone placed on the targeted killing list would not make America safer. I believe it would impede the national government’s duty to keep its citizens safe. Extreme measures are needed when time is of the essence and threats are imminent. The country elects our leaders to make the hard choices and sometimes they have to be made for our protection. It is a fallacy to demand constitutional protection from threats as an American citizen but chip away at the weapons used to protect us. I am sure the administration would have loved to minimize the Awlaki threat in a more judicially sound way, but CIA drones do not carry handcuffs.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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