Slavery has been fruitful in giving itself names . . . and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth next.
— Frederick Douglass1×1. Frederick Douglass, The Need for Continuing Anti-Slavery Work, in Frederick Douglass: Selected Speeches and Writings 577, 579 (Philip S. Foner & Yuval Taylor eds., Lawrence Hill Books 1999) (1950–75).
You have to act as if it were possible to radically transform the world. And you have to do it all the time.
— Angela Y. Davis2×2. Angela Y. Davis, Distinguished Professor Emerita, Univ. of Cal., Santa Cruz, Lecture at Southern Illinois University Carbondale (Feb. 13, 2014).
In 1997, Curtis Flowers was charged with murdering four employees of the Tardy Furniture store in the small Mississippi town of Winona.3×3. Flowers v. Mississippi, 139 S. Ct. 2228, 2236 (2019). Flowers is black.4×4. Id. Three of the victims, including the store’s owner, Bertha Tardy, were white, and one was black.5×5. See In the Dark: July 16, 1996, at 5:43–6:20, APM Rep. (May 1, 2018), https://podcasts.apple.com/us/podcast/id1148175292 [https://perma.cc/H44A-SDJK]. Flowers was tried for capital murder six times by the same white prosecutor, Doug Evans.6×6. See id.; Flowers, 139 S. Ct. at 2236. More than two decades after Flowers was first sentenced to death, his case reached the U.S. Supreme Court on one issue: whether Evans’s jury selection tactics in the sixth trial violated Flowers’s Fourteenth Amendment rights.7×7. See Flowers, 139 S. Ct. at 2234–35, 2238. By that point, the prosecutor’s scheme for getting a capital conviction of a black man was crystal clear: Evans “relentless[ly]” sought to try Flowers before an all-white jury.8×8. Id. at 2246. Over the course of six trials, Evans used peremptory challenges to strike forty-one of forty-two prospective black jurors.9×9. See id. at 2235.
On June 21, 2019, the Court overturned Flowers’s conviction.10×10. See id. at 2228, 2251. In a 7-2 decision, written by Justice Kavanaugh,11×11. Id. at 2229. the Court held that the prosecutor’s blatant pattern of racial discrimination was so “extraordinary” that it violated the Equal Protection Clause of the Fourteenth Amendment.12×12. Id. at 2251; see id. at 2242 (“Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.”). In dissent, Justice Thomas, who excused Evans’s strikes of black jurors as “race-neutral,”13×13. Id. at 2253 (Thomas, J., dissenting). found solace in one aspect of the majority’s decision: “The State is perfectly free to convict Curtis Flowers again.”14×14. Id. at 2274. Flowers remains incarcerated; upon his release from death row, he will be taken into local custody again, awaiting a decision from the State regarding the possibility of a seventh trial.15×15. See Alissa Zhu, Supreme Court Sided with Curtis Flowers. He Remains in Prison. What’s Next?, Miss. Clarion Ledger (June 27, 2019), https://www.clarionledger.com/story/news/2019/06/27/supreme-court-sided-curtis-flowers-he-still-prison-whats-next-forwinona-mississippi-man/1552081001 [https://perma.cc/HLN7-TMTS].
As Flowers v. Mississippi16×16. 139 S. Ct. 2228. indicates, criminal procedure and punishment in the United States still function to maintain forms of racial subordination that originated in the institution of slavery — despite the dominant constitutional narrative that those forms of subordination were abolished. Key aspects of carceral law enforcement — police, prisons, and the death penalty — can be traced back to slavery and the white supremacist regime that replaced slavery after white terror nullified Reconstruction. Criminal punishment has been instrumental in reinstating the subjugated status of black people and preserving a racial capitalist power structure.
Many individuals have therefore concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition.17×17. See, e.g., Abolishing Carceral Society 4 (Abolition Collective ed., 2018) (laying out a manifesto for “abolish[ing] a number of seemingly immortal institutions and drawing inspiration from those who have sought the abolition of all systems of domination, exploitation, and oppression — from Jim Crow laws and prisons to patriarchy and capitalism”); Abolition Now!, at xii (CR10 Publ’ns Collective ed., 2008) (collecting works that further the “struggl[e] to tear down the cages of the [prison industrial complex]”); Angela Y. Davis, Abolition Democracy 35–37 (2005) [hereinafter Davis, Abolition Democracy] (noting the connections between the prison industrial complex and the persistence of structural racism); Angela Y. Davis, Are Prisons Obsolete? 15–21 (2003) [hereinafter Davis, Are Prisons Obsolete?] (questioning why society takes prison for granted); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 242 (2007) [hereinafter Gilmore, Golden Gulag] (noting the “proliferation of antiprison groups” during the early 2000s); States of Confinement: Policing, Detention, and Prisons, at xiii (Joy James ed., 2000) (“Prisons . . . exist as a central dilemma for a racially constructed and class-stratified democracy.”); Introduction, in Developments in the Law — Prison Abolition, 132 Harv. L. Rev. 1568, 1568 (2019) (noting the “calls for urgent and drastic change” of the carceral system); End the War on Black People, Movement for Black Lives, https://policy.m4bl.org/end-war-on-black-people [https://perma.cc/PPA4-VY43] (demanding “an end to all jails, detention centers, youth facilities and prisons as we know them”). Incarcerated people have rebelled against prisons through spontaneous uprisings, organized protests, and legal claims since the 1960s.18×18. See Dan Berger, Captive Nation: Black Prison Organizing in the Civil Rights Era 11 (2014) [hereinafter Berger, Captive Nation] (providing a “critical history of racial justice activism and the prison between 1955 and 1980”); Ronald Berkman, Opening the Gates: The Rise of the Prisoners’ Movement 1–3 (1979) (tracing the rise of the prisoners’ movement in the 1960s); Jamie Bissonette, When the Prisoners Ran Walpole: A True Story in the Movement for Prison Abolition 9–12 (2008) (chronicling the struggle for prison reform at MCI Walpole in Massachusetts); Eric Cummins, The Rise and Fall of California’s Radical Prison Movement, at vii (1994) (chronicling the history of California prisoners between 1950 and 1980 and the “emergence of a highly developed radical convict resistance movement”); George Jackson, Soledad Brother: The Prison Letters of George Jackson, at ix (1970) (presenting the “testament” of George Jackson, an incarcerated man “who transformed himself into the leading theoretician of the prison movement”); Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy, at xiii (2016) (providing a “comprehensive history of the Attica prison uprising”); Donald F. Tibbs, From Black Power to Prison Power: The Making of Jones v. North Carolina Prisoners’ Labor Union (2012) (narrating a historic victory for prisoners’ rights that emerged from the struggle for black liberation); see also Lee Bernstein, America Is the Prison: Arts and Politics in Prison in the 1970s 1–17 (2010) (tracing the ways in which cultural expression in prisons allowed prisoners to participate in “American public life,” id. at 16). Some activists mark the launch of the current prison abolition movement as occurring at an international conference and strategy session, Critical Resistance: Beyond the Prison Industrial Complex, held at the University of California, Berkeley, in September 1998.19×19. See Abolition Now!, supra note 17, at xi; Rose Braz et al., The History of Critical Resistance, 27 Soc. Just., Fall 2000, at 6, 6; Angela Y. Davis & Dylan Rodríguez, The Challenge of Prison Abolition: A Conversation, 27 Soc. Just., Fall 2000, at 212, 216–17; Critical Resistance: Beyond the Prison Industrial Complex 1998 Conference, Critical Resistance, http://criticalresistance.org/critical-resistance-beyond-the-prison-industrial-complex-1998-conference [https://perma.cc/2AF5-A2ET]; Critical Resistance, The Hard Road to Abolition//Strategies to Win, Profiles in Abolition Event at 14:00, Vimeo (Sept. 19, 2016), https://vimeo.com/196237369 [https://perma.cc/HHK9-VT7U] [hereinafter Profiles in Abolition]. The prison abolition movement should be distinguished from the movement to abolish prostitution. See, e.g., Laura Agustín, The New Abolitionist Model, Jacobin (Dec. 6, 2017), https://www.jacobinmag.com/2017/12/sex-work-the-pimping-of-prostitution-review [https://perma.cc/566V-CCQ2]. Formed in 1997, the Critical Resistance organizing collective gathered more than 3500 activists, former prisoners, lawyers, and scholars over three days “to address the alarming growth of the prison system, popularize the idea of the ‘prison industrial complex’ (PIC), and make ‘abolition’ a practical theory of change.”20×20. Critical Resistance: Beyond the Prison Industrial Complex 1998 Conference, supra note 19. Critical Resistance founders developed the concept of the “prison industrial complex” to name the expanding apparatus of surveillance, policing, and incarceration the state increasingly employs to solve problems caused by social inequality, stifle political resistance by oppressed communities, and serve the interests of corporations that profit from prisons and police forces.21×21. See What Is the PIC? What Is Abolition?, Critical Resistance, http://criticalresistance.org/about/not-so-common-language [https://perma.cc/75BC-NGHP]. Along with Critical Resistance, which is now a national chapter-based organization working with various grassroots campaigns, a nationwide network of activists is organizing to abolish the prison industrial complex and to build a society that has no need for prisons.22×22. See CR Structure & Background, Critical Resistance, http://criticalresistance.org/about/cr-structure-background [https://perma.cc/67R3-TC8Z]. In this Foreword, I will use the term “prison abolition” to encompass the claim that various aspects of the criminal punishment system, including prisons, jails, detention centers, policing, surveillance, and the death penalty, should be abolished. Moreover, this Foreword focuses on abolition of carceral punishment, though abolition theory extends beyond the criminal punishment system to include other aspects of the carceral state, including the foster care and deportation systems. See infra section I.A, pp. 12–19.
It is hard to pin down what prison abolition means. Activists engaged in the movement have resisted “closed definitions of prison abolitionism”23×23. Overview: Critical Resistance to the Prison-Industrial Complex, 27 Soc. Just., Fall 2000, at 1, 5. and have instead suggested a variety of terms to capture what prison abolitionists think and do — abolition is “a form of consciousness,”24×24. Profiles in Abolition, supra note 19, at 1:27. “a theory of change,”25×25. Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y. Times Mag. (April 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html [https://perma.cc/4GZZ-NFM6] (quoting Michelle Alexander). “a long-term political vision,”26×26. Charlene A. Carruthers, Unapologetic: A Black, Queer, and Feminist Mandate for Radical Movements, at x (2018). and “a spiritual journey.”27×27. Spirituality and Abolition — Call for Submissions, Abolition (Aug. 2, 2018), https://abolitionjournal.org/spirituality-and-abolition-call-for-submissions [https://perma.cc/8SS4-8KAT]. Professor Dylan Rodríguez, a founding member of Critical Resistance,28×28. Critical Resistance: Beyond the Prison Industrial Complex 1998 Conference, supra note 19. lyrically describes abolition as “a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.”29×29. Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, in Developments in the Law — Prison Abolition, 132 Harv. L. Rev. 1575, 1578 (2019). Moreover, movements that refer to themselves as abolitionist are working to dismantle a wide range of systems, institutions, and practices beyond criminal punishment (such as “the wage system, animal and earth exploitation, [and] racialized, gendered, and sexualized violence”)30×30. Manifesto for Abolition, Abolition, https://abolitionjournal.org/frontpage [https://perma.cc/5P3V-JMHK]; see Allegra M. McLeod, Envisioning Abolition Democracy, in Developments in the Law — Prison Abolition, 132 Harv. L. Rev. 1613, 1617 (2019) [hereinafter McLeod, Envisioning Abolition Democracy] (“Abolitionist organizers understand their work to be related to the historical struggles against slavery and its afterlives, against imperialism and its legacies in more recent practices of racial capitalism, and against immigration enforcement and border fortification.”). and forms of oppression beyond white supremacy (such as “patriarchy, capitalism, heteronormativity, ableism, colonialism,” imperialism, and militarism).31×31. Manifesto for Abolition, supra note 30 (referring to “all revolutionary movements, insofar as they have abolitionist elements”); see Rodríguez, supra note 29, at 1578 (placing abolition within a “(feminist, queer) Black liberation and (feminist, queer) Indigenous anticolonialism/decolonization” tradition); Michael Hames-Garcia, Abolition Is a Goal that I Use to Orient My Thinking and Action: Michael Hames-Garcia on Abolition, Abolition (June 26, 2015), https://abolitionjournal.org/michael-hames-garcia-abolition-statement [https://perma.cc/66JS-VXHR] (positing that abolition is antiracist, antisexist, antihomophobic, and so forth). While I recognize that all of these oppressive systems and the movements for their eradication are interconnected,32×32. See Patricia Hill Collins & Sirma Bilge, Intersectionality 55 (2016) (discussing how “forms of violence within separate systems might in fact be interconnected”); How We Get Free: Black Feminism and the Combahee River Collective 4 (Keeanga-Yamahtta Taylor ed., 2017) [hereinafter How We Get Free] (describing “oppressions as ‘interlocking’ or happening ‘simultaneously,’ thus creating new measures of oppression and inequality”); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 318–24 (2013) (exploring the phenomenon of “coalitions across movements where political organizations focused on different causes, often rooted in differing identity categories, engage in collective action to achieve shared goals,” id. at 318); see generally Patricia Hill Collins, Black Feminist Thought (1990). this Foreword will focus specifically on the movement to abolish the prison industrial complex, conceived of as rooted in chattel slavery in the United States, as a starting point to examine the potential for a new abolition constitutionalism.
For purposes of my analysis, I find especially useful three central tenets that are common to formulations of abolitionist philosophy. First, today’s carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained.33×33. See infra section I.B.1, pp. 19–42; see also Rodríguez, supra note 29, at 1580–84. Second, the expanding criminal punishment system functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime.34×34. See infra section I.B.2, pp. 42–43; see also Rodríguez, supra note 29, at 1584–87. Third, we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems.35×35. See infra section I.B.3, pp. 43–48; see also, e.g., Profiles in Abolition, supra note 19. These tenets lead to the conclusion that the only way to transform our society from a slavery-based one to a free one is to abolish the prison industrial complex.
To date, there has been no sustained analysis of the relationship between the prison abolition movement and the U.S. Constitution. Prison abolition activists and scholars rarely seek support for their claims in constitutional law.36×36. Abolitionist theorizing and activism have largely occurred separately from lawyers and the legal academy. Introduction, supra note 17, at 1568–69. Nor have they included an abolitionist interpretation of the Constitution in their vision of a transformed society without prisons. Some not only have eschewed constitutional law as a means to achieve prison abolition but also have argued that constitutional law serves to facilitate and legitimate state violence against black and other marginalized people.37×37. Joy James, Introduction, Democracy and Captivity, in The New Abolitionists: (Neo)Slave Narratives and Contemporary Prison Writings, at xxii, xxv–xxx (Joy James ed., 2005) [hereinafter James, Democracy and Captivity]; see also Jalil A. Muntaqim, Musings on US Judicial Repression, The Abolitionist, Summer 2008, at 7, https://abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-9-summer-2008-english.pdf [https://perma.cc/783Y-T9JV]; Erica Meiners, Notes Against & Beyond Our Carceral Regime: Erica Meiners on Abolition, Abolition (Aug. 12, 2015), https://abolitionjournal.org/erica-meiners-on-abolition [https://perma.cc/8D76-JE74]. This oppositional approach to the Constitution is understandable given that so much of the Supreme Court’s constitutional jurisprudence since its inception in the slavery era has been anti-abolitionist.38×38. See infra section II.D, pp. 71–93. In response to Professor Jack Balkin’s observation that “[w]ithin our legal culture the idea of fidelity to the Constitution is seen as pretty much an unquestioned good,” J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1704 (1997), I once argued that “[i]n light of all the indignities showered upon blacks . . . under color of the Constitution, I would think the presumption would be that blacks should repudiate the document and all the injustice for which it has stood.” Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761, 1761 (1997) [hereinafter Roberts, Blacks’ Fidelity]. Yet the Constitution was interpreted by past freedom activists as an abolitionist document: many antislavery activists viewed the Constitution as a foundation for their arguments and for developing an alternative reading that called for freedom and democracy. Even after the Civil War, a Radical Republican Congress amended the text explicitly to end slavery and extend citizenship to black people based on the ideas and advocacy of an abolitionist movement.39×39. See infra pp. 62–64. At the same time, the Reconstruction Amendments contained compromises that blocked their potential for dismantling the racial capitalist structure.40×40. See infra pp. 65–67. By 1900, a campaign of white supremacist terror, laws, and policies had effectively nullified the Amendments and replaced abolition with Jim Crow as the constitutional regime.41×41. See, e.g., Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 443 (1988) [hereinafter Foner, Reconstruction] (recounting the violence perpetrated by the Ku Klux Klan and the ways in which it “raised in its starkest form the question of legitimacy that haunted the Reconstruction state”); Henry Louis Gates, Jr., Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow 29–35 (2019) (tracing the political, economic, and legal forces that led to dismantling Reconstruction legislation and “solidif[ying] Southern states as governed by legal segregation and discrimination,” id. at 35); Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction 5 (2008) (discussing President Ulysses Grant’s struggle to end Klan terror in the 1870s and stating that it “simply underscored the fact that Reconstruction, for all its initial promise, had turned into a long, violent slog”); id. at 251 (claiming that Reconstruction “ended amid bloodshed”); Rayford W. Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson 116–17 (1965) (claiming that the interpretation of the Fourteenth Amendment in the Civil Rights Cases, decided in 1883, “virtually assured the subsequent development of Jim Crow laws,” id. at 117); George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866, at 39 (2013) (arguing that the Reconstruction Amendments “were inadequate to prevent the regime of . . . Jim Crow”); Richard M. Valelly, The Two Reconstructions: The Struggle for Black Enfranchisement 115–16 (2004) (discussing the “white revolution” that spread from Louisiana to Mississippi and South Carolina, id. at 115); C. Vann Woodward, The Strange Career of Jim Crow 8 (1955) (“The new Southern system [under Jim Crow] was regarded as the ‘final settlement,’ the ‘return to sanity,’ the ‘permanent system.’”).
Engaging the relationship between past abolition constitutionalism and the current prison abolition movement raises a number of provocative questions. Can legal scholars help to revive the abolitionist values in the Reconstruction Constitution to support contemporary abolitionist claims? Can prison abolitionists strategically use an abolitionist reading of the Constitution to defend their radical vision and implement steps toward achieving it? Might prison abolitionists craft a new abolition constitutionalism that serves as a charter for a society without prisons?
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. Although there are many grounds for prison abolition and many venues for abolitionist advocacy, my purpose here is to examine prison abolitionist theory and organizing as it relates to the U.S. Constitution in particular. There are two paths this interrogation might take. One uses prison abolition theory to evaluate the Constitution’s provisions and the jurisprudence that has interpreted them in order to rebuke their failure to abolish slavery-like systems and install a democratic society. The other goes further to propose a constitutional paradigm that supports prison abolitionists’ goals, strategies, and vision. The first path is resigned to the futility of employing U.S. constitutional law to dismantle the prison industrial complex and other aspects of the carceral state. The second path finds utility in applying the abolitionist history and logic of the Reconstruction Amendments to today’s political conditions in the service of prison abolition.
I believe both approaches are worthy of consideration, and considering both is essential to developing a theoretically and pragmatically useful legal framework to advance prison abolition. Neither is based on a naïve faith in U.S. law or the judges who apply it to radically change carceral society. Indeed, it is the realization that white supremacy is deeply woven into the fabric of every legal institution in the United States and upheld by U.S. constitutional law that made me an abolitionist in the first place. The tension between recognizing the relentless antiblack violence of constitutional doctrine, on one hand, and demanding the legal recognition of black people’s freedom and equal citizenship, on the other, animates this Foreword as it has long animated abolitionist debates on the U.S. Constitution.42×42. See infra section II.B, pp. 54–62. As a legal scholar who works in academia, I also write this Foreword with the constant sense of tension between wanting my scholarship to be useful to abolition activists and recognizing the tendency of academic enterprises to “filter professionalism and conformity into activism.” Joy James, 7 Lessons in 1 Abolitionist Notebook: Joy James on Abolition, Abolition (June 25, 2015), https://abolitionjournal.org/joy-james-7-lessons-in-1-abolitionist-notebook “>https://abolitionjournal.org/joy-james-7-lessons-in-1-abolitionist-notebook/”>[https://perma.cc/Q6NN-6NXA] [hereinafter James, 7 Lessons]; see How We Get Free, supra note 32, at 13 (“Political analysis outside of political movements and struggles becomes abstract, discourse driven, and disconnected from the radicalism that made it powerful in the first place.”). From its inception, the prison abolition movement has included a mix of grassroots activists and former prisoners, as well as lawyers and scholars (and some who traverse these identities). Abolition is both a practical and intellectual endeavor. See Critical Resistance, Angela Davis, “We Need Intellectuals,” YouTube (Mar. 22, 2018), https://youtu.be/edqwL0bytVI [https://perma.cc/L3ZE-CDQQ]. I approach this Foreword with the aim that my analysis will be productive without detracting from the radicalism of prison abolition. Despite my disgust with the perpetual defense of oppression in the name of constitutional principles, I am inspired by the possibility of an abolition constitutionalism emerging from the struggle to demolish prisons and create a society where they are obsolete.
This Foreword analyzes the potential for a new abolition constitutionalism as follows. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation”43×43. See Profiles in Abolition, supra note 19, at 1:39. sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an abolitionist document. I interrogate the historic abolition constitutionalism by examining antebellum abolitionists’ readings of the Constitution and their partial incorporation into the Reconstruction Amendments, as well as the Supreme Court’s jurisprudence obstructing the Amendments’ transformative potential. I pay close attention to the Supreme Court’s most recent decision interpreting the relationship between the Fourteenth Amendment and carceral punishment — Flowers v. Mississippi — to analyze the Justices’ rejection of an abolitionist approach in their ruling.
Finally, Part III links Parts I and II by exploring the relationship between prison abolition and the U.S. Constitution. I argue that, despite the ascendance of proslavery and anti-abolition constitutionalism, we should consider the abolitionist history of the Reconstruction Amendments as a usable past to help move toward a radical future. I hope to show that the prison abolition movement can reinvigorate abolition constitutionalism. In turn, today’s activists can deploy the Reconstruction Amendments instrumentally to further their aims and, in the process, construct a new abolition constitutionalism on the path to building a society without prisons.
* George A. Weiss University Professor of Law and Sociology, University of Pennsylvania; Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of Pennsylvania Law School; Professor of Africana Studies and Professor of Sociology, University of Pennsylvania School of Arts & Sciences. The author thanks Mitchell Berman, Maggie Blackhawk, Jean Galbraith, Paul Heaton, Seth Kreimer, Serena Mayeri, Donald Moore, Shaun Ossei-Owusu, James Pope, Andrea Ritchie, and Tobias Wolff for helpful comments on an earlier draft of this Foreword. The author is indebted to University of Pennsylvania Law School students Madison Gray, Bridget Lavender, Anthony Sacco, and James Thompson for outstanding and dedicated research assistance, to Timothy Von Dulm and the Biddle Law Library staff for excellent research services, and to the editors of the Harvard Law Review. for rigorous editorial support.