The Shadow Constitution: Rescuing our Inheritance from Neglect and Disuse

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection. When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account

Fisher V. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the limits of the exhaustion requirement as a matter of logic, law, and policy. We focus on the necessity and exhaustion prongs of narrow tailoring with respect to the use of race in admissions. We will complicate the necessity analysis by illustrating the practical difficulties of employing race-neutral alternatives and by highlighting how this inquiry is fraught with administrative and conceptual challenges. Part III underscores the challenges presented in Part II by attempting to navigate the distinction between general race-consciousness and the use of individual racial classifications. We will explore the possibilities for university admissions committees to pursue racial and socio-economic diversity, including the opportunity-enrollment model. As a reference, we will survey integrative alternatives used in the wake of the Parents Involved decisions and suggest how colleges and universities could apply a similar set of principles and methods. We will also note the challenges facing such approaches on the scale of university admissions. We will conclude by arguing that race-conscious admissions are necessary, yet increasingly administratively challenging. The standards for narrow tailoring demand expertise beyond the skills and the resources of university admissions committees and call for more administratively cumbersome university standards. Given the extant realities of our educational system, courts should provide more leeway, not less, to universities pursuing the compelling interests of promoting student body diversity and reducing racial isolation. In the absence or relative unavailability of such resources and technical expertise, and until such deference from courts is forthcoming, universities should rely on the Supreme Court’s safe harbor by aggressively pursuing viable race-neutral alternatives with promising outcomes

Beyond Public/Private: Understanding Excessive Corporate Prerogative

This article makes the case against excessive corporate prerogative by revealing ways in which the exercise of corporate power to protect and relentlessly pursue corporate interests subverts our democracy with harmful consequences for democratic accountability, civil rights, human rights, the economy, the environment, privacy, individual freedom and the nation\u27s welfare

Measuring Global Inclusion and Marginality

Our Inclusiveness Index is uniquely focused on the degree of inclusion and marginality rather than a more general assessment of group-based well-being. Inclusivity entails greater access to power and public and private resources, and improves the way society views group members. Inclusivity is realized when historically or currently marginalized groups feel valued, when differences are respected, and when basic and fundamental needs and rights— relative to those societies' dominant groups—are met and recognized. Our Index focuses onsocial groups rather than individuals or even communities, as marginality often occurs as a result of group membership

We Too Belong: Resource Guide of Inclusive Practices in Immigration and Incarceration Law & Policy

The Haas Institute for a Fair and Inclusive Society announces the release of a major new publication, entitled We Too Belong: Resource Guide of Inclusive Practices in Immigration and Incarceration Law & Policy. The resource guide highlights inclusive policies and practices, supplemented by case studies centered at the intersection of immigration and incarceration in the United States.  These systems are sometimes referred to as the "Double Is." "The most marginalized populations in the history of our society were those that were denied public voice or access to private space. Historically, women and slaves experienced this form of marginality. They could not vote, serve on juries, nor run for office, and they were also denied a private space to retreat to, free from surveillance or regulation. Today, immigrants, the incarcerated and the formerly incarcerated, and to a large extent the disabled, most visibly inhabit this marginalized social and spatial location in American society," opened the new resource guide, effectively framing both the problems faced by individuals and the systems that impact their lives.  Developed by a team of seven co-authors, We Too Belong represents nearly three years of research into best practices and policies related to immigration and incarceration in the US. Lead author and Haas Institute Assistant Director Stephen Menendian notes that "There are dozens of cities across this country making real progress towards a more inclusive society, but too often our attention is focused on places where people are struggling. We need to shine a light on what's working, and expand our sense of what's possible. This report does that."    Drawing on the experiences of states and localities attempting to integrate immigrants and the formerly incarcerated into their social and economic fabric, We Too Belong offers a small window into the lives of people affected by these policies. The criminal justice system and immigration law serve to separate individuals from the rest of US society through physical exclusion—including prisons and detention centers. Procedurally, immigration enforcement looks and acts like law enforcement—a phenomenon known as "crimmigration"—while the criminal justice system has locked up 400 people for every 100,000 in the population with the disabled and communities of color disproportionately affected by these systems. The 100-page Resource Guide does not only give an in-depth menu of policies, but also humanizes the "Double Is" by featuring the stories of people who are the most affected by them. These nine perspectives from undocumented, incarcerated, and formerly-incarcerated individuals are featured alongside advocates and scholars who have spent their careers exploring the ways that these structures are impeding a healthy, inclusive society that recognizes the inherent dignity and humanity of all people.

Structural Racism in the United States: A Report to the U.N. Committee for the Elimination of Racial Discrimination on the occasion of its review of the Periodic Report of the United States of America

As a signatory to the Convention on the Elimination of Racial Discrimination (CERD), 1 the United States is under an obligation to condemn and pursue a policy of eliminating racial discrimination, in all its forms (art. 2, ¶1). The U.S. has not taken seriously the duty under Article 2 of CERD to affirmatively address racial discrimination. Instead, the U.S. has rationalized racial discriminatory effects as not covered by U.S. law. Sometimes these effects are caused by explicit government polices. At other times they are caused by private actors. Frequently, it is a combination of both. The Convention defines racial discrimination (art. 1, ¶1) to mean distinctions, exclusions, restrictions or preferences based on race which have “the purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in any field of public life. CERD’s definition of discrimination is unequivocal: effects and racially disparate outcomes caused by individual action or government practices or policies, singularly or collectively, are of primary concern. Contrary to CERD, U.S. law defines racial discrimination more narrowly in at least two critical respects. First, with few exceptions U.S. law narrowly defines cognizable racial discrimination by requiring evidence of intent to discriminate. Section II demonstrates that such a requirement is contrary to the framework of CERD and does not reflect the real-world operation of discriminatory behavior in contemporary American society

The Shadow Constitution: Rescuing our Inheritance from Neglect and Disuse

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection. When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account

Fisher V. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the limits of the exhaustion requirement as a matter of logic, law, and policy. We focus on the necessity and exhaustion prongs of narrow tailoring with respect to the use of race in admissions. We will complicate the necessity analysis by illustrating the practical difficulties of employing race-neutral alternatives and by highlighting how this inquiry is fraught with administrative and conceptual challenges. Part III underscores the challenges presented in Part II by attempting to navigate the distinction between general race-consciousness and the use of individual racial classifications. We will explore the possibilities for university admissions committees to pursue racial and socio-economic diversity, including the opportunity-enrollment model. As a reference, we will survey integrative alternatives used in the wake of the Parents Involved decisions and suggest how colleges and universities could apply a similar set of principles and methods. We will also note the challenges facing such approaches on the scale of university admissions. We will conclude by arguing that race-conscious admissions are necessary, yet increasingly administratively challenging. The standards for narrow tailoring demand expertise beyond the skills and the resources of university admissions committees and call for more administratively cumbersome university standards. Given the extant realities of our educational system, courts should provide more leeway, not less, to universities pursuing the compelling interests of promoting student body diversity and reducing racial isolation. In the absence or relative unavailability of such resources and technical expertise, and until such deference from courts is forthcoming, universities should rely on the Supreme Court’s safe harbor by aggressively pursuing viable race-neutral alternatives with promising outcomes