NULR 1L Writing Competition: Dred Scott v. Sandford (Dissent)

Written by Walter Garcia

Photo by Álvaro Serrano on Unsplash

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Walter was one of the winners.

History will not look kindly upon this Court’s ruling. Nor should it. The short of the matter is that Mr. Dred Scott has been denied his basic sense of humanity, and the Chief Justice shows zero qualms in doing so, going as far as to write:

We think [persons of African descent] are not [citizens of the United States], and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . .

I think otherwise. Indeed, I know otherwise. Like it or not, ours is a nation that, at its very inception, was founded on the principle “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When those words were written in 1776, our country was already a diverse nation, home yes to men and women of Caucasian ancestry, but also to men and women of African ancestry, to Native Americans, and to so many others. Faced with such a reality, our founding fathers still chose to use the word “all.”

I am therefore of the belief that our Constitution provides us with numerous ways to give Mr. Scott the basic sense of humanity that is being denied to him. Of them all, however, the Guarantee Clause carries the day: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” This Court has expressed its belief that questions arising under the Guarantee Clause are for Congress—not the courts—to decide.

However, if that Clause is to mean anything, if the United States truly is committed to ensuring that all states have a republican form of government, then we must rule in Mr. Scott’s favor. There will always be disagreements on the particulars of what constitutes a republican form of government. What we cannot do, and what this Court does today, is to allow for such disagreement here, when the particulars are not at stake, but when the very foundation of a republican form of government is at stake. Stripped to its very essence, a republican form of government is one in which every man and woman is treated equally, and with respect and dignity. In reference to this topic, James Madison wrote in Federalist 39 that, “[i]f we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . .” There are no powers to be derived and no government to be had when some, based on their ancestry alone, are treated as “others.” All slaves, including Mr. Scott, are not “others.” They, like all those who contribute to this country’s diversity, are our brothers and sisters. I dissent.

Walter Garcia is a first-year student at Northwestern Pritzker School of Law. 

NULR 1L Writing Competition: Fong Yue Ting v. United States (Critique)

Written by Meher Babbar

Photo by Miko Guziuk on Unsplash

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Meher was one of the winners.

Of the cases covered in Constitutional Law tracing the expansion of federal power, none is more germane to the current national discussion on immigration and race than Fong Yue Ting v. United States. The Supreme Court decided the case four years after it upheld the Chinese Exclusion Act, which banned all immigration by Chinese individuals to the United StatesFong Yue Ting concerned the legislation’s successor, the Geary Act, which authorized executive officers to summarily deport any Chinese immigrant already present in the country who could not produce documentation of legal residence. Such documentation could only be obtained with the supporting testimony of a white witness. Fong Yue Ting and his co-plaintiffs were Chinese laborers who had maintained legal residence in the United States for over a decade, but, either refusing or unable to find a white witness to verify their presence, now faced deportation.

Fong Yue Ting argued that the Geary Act’s threat of deportation in the absence of a trial and opportunity for judicial review violated the Due Process guarantee of the Fifth Amendment. The Court rejected this contention, citing the federal government’s “absolute and un-qualified” right to deport non-citizens, regardless of their status or length of stay in the United States. Further, the Court reasoned that deportation was an administrative decision, not a criminal punishment and, as such, “the provisions of the constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application.” In other words, non-citizens in the United States live under a separate legal regime from citizens, in which constitutional guarantees are in name only.

The Court’s judgement is surprising not only in its severity, but also how it echoes many of the assertions made in the contemporary debate over immigration reform. The notion that immigrants, even those lawfully admitted in times of peace, could be deported at any time without trial or opportunity for judicial review was novel in 1893, but is an accepted reality in 2019. Fong Yue Ting was the turning point which instituted the judicial deference that has since permitted Congress and the executive branch to transform deportation into a veritable and near-unassailable regime. The decision has been tempered only slightly by subsequent cases. Facially, Fong Yue Ting and the present reality of deportation are distinguishable—the former was in response to an explicitly racist and now-repealed law. Having never been overturned, however, Fong Yue Ting remains controlling authority in questions about the federal government’s near-unchecked power over deportation.

In light of recent events, the case’s implications are especially troubling. The announced repeal of the Deferred Action for Childhood Arrivals (DACA) program raises the same question posed by Fong Yue Ting: who truly belongs in America and whose presence is merely tolerated, revocable at a moment’s notice? Like the Chinese Exclusion Act, the government action surrounding DACA disproportionately targets and affects the lives of people of color. The connection between Fong Yue Ting and DACA, however, is not merely philosophical; pending litigation involving the repeal will likely rely upon the nineteenth century decision’s holding. The Supreme Court’s labeling therein of deportation as a civil, not a criminal offense is precisely what would empower the government today to deport DACA recipients with no more due process than notice from an executive officerFong Yue Ting’s racist legacy lives on.

Equally powerful in Fong Yue Ting were its vigorous dissents, which raise numerous counterarguments to a hardline stance on deportation. Justice Brewer’s dissent asserted that non-citizens had a right to trial when threatened with deportation, owing to the Fifth Amendment’s use of the word “person,” in guaranteeing due process. Justice Field concurred and found deportation to be “cruel and unusual punishment.” “As to its cruelty,” he wrote, “nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all the relations of friendship, family, and business there contracted.” Express Constitutional authority would alone suffice to permit such a severe action and, “if it cannot be thus found, it does not exist.” The absolute right over deportation asserted by the majority, Justice Field contended, was the same that had permitted the expulsion of Muslims and Jews from Spain, the Huguenots from France, and the then contemporary banishment of Jews from Russia; he cautioned against sanctioning a similar, “act of barbarity.”

Justice Field predicted that unchecked federal power over deportation would, “establish a pure, simple, undisguised despotism and tyranny, with respect to foreigners resident in the country.” His prediction could not have been more prescient—the rate of deportation has ballooned from a little over 1,600 occurrences in 1893 to 340,056 occurrences by 2016. Fong Yue Ting’s sweeping grant of authority to the federal government over deportation was a landmark decision in constitutional law. Over a century later, its holding decides the fates of hundreds of thousands of immigrants, as it did those of Fong Yue Ting and his fellow laborers. The precarious existence of the non-citizen only reinforces his status as a perpetual foreigner: those, “of a different race,”—regardless of status or length of stay—“who will not assimilate with us.” The enduring relevance and influence of Fong Yue Ting demonstrates how far we still have to go with regards to diversity in the law.

Meher Babbar is a first-year student at Northwestern Pritzker School of Law.