Are We Inadvertently Conceding Moral Ground?

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The Importance of Language Choices in the Reproductive Justice Movement

By Marcella Kocolatos, Staff Editor

“No one is pro-abortion.”

This is a common refrain in the reproductive justice movement. It is uttered in response to opponents of reproductive choice who suggest that those who advocate for universal access to safe and legal abortion are somehow intent on maximizing the number of pregnancies terminated.[1] It is uttered in response to the accusation that abortion is a profit-driven industry[2] akin to the “$8 billion Abortionplex” satirically imagined by The Onion.[3] And it is clear why people use this response: when not only laypersons but elected lawmakers[4] perpetuate outlandish myths about the goals of the reproductive justice movement, choice proponents naturally seek to dispel such offensive misrepresentations of their beliefs.

I do not consider myself “pro-abortion” because such an ideological position seems flatly inconsistent with the notion of choice. I understand the term “pro-abortion” to signify a general preference for abortion over childbirth, without regard to how any individual woman wishes to proceed with her pregnancy. For me the term evokes support for forced abortions, such as the one Chinese family planning officials forced 23-year-old Feng Jianmei to undergo in 2012, seven months into her pregnancy.[5] To say that I am “not pro-abortion” means that I would not value an individual’s choice to terminate her pregnancy any more than I would value her choice to give birth.

For others who support legalized abortion, the statement “I am not pro-abortion” might carry an implicit value judgment, a suggestion that abortion is an ethically undesirable—even if sometimes justified—procedure. These individuals might morally disapprove of abortion but recognize that their personal disapproval should not dictate whether others may legally access abortion. This sentiment is reflected in statements made by politicians such as Hillary Clinton, who has emphasized her belief that abortion should be “safe, legal, and rare.”[6]

The acknowledgment that one’s own moral compass should not impose upon the decisions of others undoubtedly comports with the reproductive justice movement, which seeks to secure reproductive autonomy for all individuals. However, the simultaneous suggestion that abortion is a morally objectionable procedure—even if this suggestion is unintentional—arguably conflicts with the movement’s goals.

It should be of concern to those of us working in the area of reproductive justice that the declaration “no one is pro-abortion” might easily be misinterpreted by our opponents—willfully or not—as a concession of moral high ground, as an admission that abortion is in fact a “bad” thing and that all women who choose it must necessarily view it as such, rather than as a morally neutral medical procedure.

Even more worrisome is the stigma that rhetoric of this sort might confer on women who obtain abortions. Evidence suggests that stigma around abortion—unlike abortion itself[7]—can negatively impact the mental health of women who have had abortions. A 2008 report issued by the American Psychological Association found that “interpersonal concerns, including feelings of stigma, perceived need for secrecy . . . and low perceived or anticipated social support for the abortion decision, negatively affected women’s . . . psychological experiences” following an abortion.[8]

At the same time, we cannot avoid all rhetoric that may be read to implicitly condemn abortion. If we did so, we would risk alienating important reproductive justice allies by appearing flippant about the procedure. This is liable to hurt our cause. We do not want to lose opportunities for potential collaboration with those who do not feel comfortable aligning themselves fully with the reproductive justice movement.

There are inevitably going to be certain trade-offs involved in the language choices we make when we advocate for reproductive justice, whether as laypersons or as trained activists. This is a lesson I have learned firsthand as a member of NYU’s inaugural Reproductive Justice Clinic. Through the Clinic, I participated in drafting a press release applauding a decision in a child custody case with which the Clinic was involved. My classmates and I had to make painstakingly careful decisions about how we wanted to represent our position and about how best to do that without using language that might lend itself to distortion. One struggle we encountered was how to recognize the role that men play in the reproductive lives of most women without suggesting that men may make reproductive decisions for women. We also had to figure out how to concisely explain the legal dynamics at play, including the constitutional rights implicated, in a manner that was colloquial but, at the same time, did not mischaracterize the relevant statute, procedural history, or the court’s holding.

The rhetorical savvy generally required for good lawyering takes on a different hue when engaging the public than it does when engaging a court. Attorneys working to advance reproductive justice—particularly those who interact with the media—must remain as conscientious of the words they use as must on-the-ground advocates. Those of us who advocate for universal access to safe and legal abortion do so because we believe that complete reproductive freedom is necessary to a moral and just society. We must be wary of using language that might inadvertently convey to our adversaries, as well as the women and men we advocate for, that we believe otherwise.

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[1] See, e.g., Steven Ertelt, Planned Parenthood Wants to Increase Abortions Globally 82%, LifeNews.com (Jan. 17, 2012, 8:50 PM), http://www.lifenews.com/2012/01/17/planned-parenthood-wants-to-increase-abortions-globally-82.

[2] See, e.g., Susan Michelle, What Does Planned Parenthood Do With Its Millions?, LifeNews.com (Nov. 23, 2011, 11:24 AM), http://www.lifenews.com/2011/11/23/what-does-planned-parenthood-do-with-its-millions.

[3] Planned Parenthood Opens $8 Billion Abortionplex, The Onion (May 18, 2011), http://www.theonion.com/articles/planned-parenthood-opens-8-billion-abortionplex,20476.

[4] See, e.g., Dino Grandoni, Congressman Falls for The Onion’s Planned Parenthood ‘Abortionplex’ Story, The Wire (Feb. 6, 2012, 11:41 AM), http://www.thewire.com/national/2012/02/congressman-falls-months-old-onion-story-about-planned-parenthood-abortionplex/48344.

[5] David Barboza, China Suspends Family Planning Workers After Forced Abortion, N.Y. Times, June 16, 2012, at A6, available at http://www.nytimes.com/2012/06/16/world/asia/china-suspends-family-planning-workers-after-forced-abortion.html.

[6] See, e.g., New Beginnings: Foreign Policy Priorities in the Obama Administration: Hearing Before the H. Comm. on Foreign Affairs, 111th Cong. 24 (2009) (statement of Hillary Rodham Clinton, Sec’y of State of the United States), available at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg48841/pdf/CHRG-111hhrg48841.pdf.

[7] Susan A. Cohen, Still True: Abortion Does Not Increase Women’s Risk of Mental Health Problems, Guttmacher Pol’y Rev., Spring 2013, at 13, 13 (2013), available at http://www.guttmacher.org/pubs/gpr/16/2/gpr160213.pdf.

[8] Brenda Major, Mark Appelbaum, Linda Beckman, Mary Ann Dutton, Nancy Felipe Russo & Carolyn West, American Psychological Ass’n, Report of the Task Force on Mental Health and Abortion 92 (2008), available at http://www.apa.org/pi/women/programs/abortion/mental-health.pdf.

Intervening in Hate Violence

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By Katherine Erickson

Legal professionals don’t often get the chance to be Batman,[1] but last month Ejeris Dixon led a workshop, Intervening in Hate Violence,[2] that sounded like it was going to tell us how.

Sponsored by NYU OUTLaw, the NYU LGBTQ Student Center, and the Office of Student Affairs, this workshop was a community reaction to the string of hate crimes against LGBT individuals last spring.[3] Together with Dixon, Deputy Director in charge of Community Organizing and Public Advocacy at The Anti-Violence Project, we explored strategies for how to effectively respond and intervene when one witnesses or experiences a hate crime.

I found the workshop incredibly useful and incredibly frustrating, at the same time.

Lesson One: You still don’t get to be Batman.

Despite the temptation to stand up straight and yell at people who are hassling your friends, allies can actually put LGBT people in more danger by physically or verbally expressing anger. Many of us in the public interest law community tend to enter these situations with a hero complex, and activists in the LGBT community have experimented with responding with force to hate violence by way of community safety patrols when police protection proved inadequate or counter-productive.[4]

However, as Dixon explained, on an individual level the ability to confront violence with violence is a hallmark of privilege. As a white cisgender[5] ally, I can get angry and yell with impunity when my trans Black friend is targeted on the subway. My friend is the one stuck taking that same subway every day and potentially running into the aggressor again, at a time when I’m not there to protect her.

Lesson Two: Aggressors are victims.

Did we mention intersectionality? The world has its fair share of privileged rich, cis, straight, white, male violent criminals, sure. But many of the perpetrators of LGBT violence are future clients of my public defender friends—indigent victims of violence themselves.[6]If nothing else, they were probably taught to be racist by their parents, which some now contend is form of child abuse. [7]

Lesson Three: Consider alternatives to prosecution.

As it turns out, prison is bad for people.[8] If you’re really dedicated to decreasing societal injustice, it’s good to at least consider how we can avoid contributing to the phenomenon of mass incarceration in our responses to violence.

Lesson Four: Progress is infuriatingly slow.

Some de-escalation methods taught in this workshop have been in use for decades.[9] Dixon quite properly included them as recommended techniques, but I found it infuriating that we’re using the same techniques to prevent the violent deaths of LGBT people that we were using thirty years ago. Nonviolence is all well and good, but it’s 44 years after the Stonewall Riots. Why are we still relying on members of the LGBT community to use nonviolent resistance, to whistle, to report to the police, or to provide other means of strategic community pressure? Shouldn’t we be at a point where prevention of hate crime is a mainstream activity? I found myself wondering, “Why is there still a need for a specialized training on this?”

I don’t want to live in a city where the law provides redress for my friends only after they’re dead. Or after they’ve been beaten. Or after they’ve suffered outrageous, ongoing verbal abuse. “He made me want to commit suicide” is not a cause of action—except if there is a special relationship between the parties, such as that of therapist and client.[10] At the same time, individual prosecution or civil litigation is not necessarily the best way to combat a transphobic and homophobic culture.

Lesson Five: The law has limits.

Many of us in the public interest law community would like to believe that societal problems have legal remedies, but the more I learn, the more I realize that you can’t end violence with litigation. However much I may believe in taking sides and making distinctions between the “good guys” and “bad guys,” at the end of the day we all just have to take care of each other because we have to live together.

I can sue perpetrators, but I can’t sue hatred.

Many advocates during the Civil Rights Movement used nonviolence tactically, despite being targets of horrific violence, because of what it did for the movement—they wanted to force racists to see Black people as human beings.[11]

The LGBT rights movement’s focus on marriage has similarly been strategic because of its communicative nature; it encourages public recognition of the dignity of all LGBT people, not only those who wish to participate in the institution of marriage.[12]

However frustrating it may be, we don’t get to play Batman outside of the courtroom—or, I would argue, within. I will advocate zealously for my clients, but the movement cannot only be about the victim because the division between perpetrator, victim and bystander is illusory in the long-term. We’re all victims of hatred, and violence, and injustice. The LGBT rights movement isn’t about fighting homophobes; it’s about fighting homophobia.

When I take a stand against racism, or homophobia, or when I yell at somebody who is dehumanizing my friend, I’m not solving the problem—I’m making myself feel better. At best, I’m drawing attention to a problem, but it can’t end there. It absolutely has to end with increased mutual understanding because that’s the only way violence actually ends, instead of being sublimated, or repressed, or pent up for another day.

And that’s what this workshop taught—Dixon taught us to slow down, use empathy, and speak slowly. Draw the aggressor in, allow the victim time to escape, and build understanding. I learned that in the short-term, like in the long-term, hate violence can be prevented when we see each other as human beings.

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[1] If desired, please substitute your own superhero of choice. Suggestions include: Batwoman, Wiccan and Hulkling, the new Ms. Marvel, or the new Aqualad.

[2] What Would You Do?: Intervening in Hate Violence, N.Y.U. School of Law (Oct. 30, 2013), available at http://blogs.law.nyu.edu/docket/student-affairs/what-would-you-do-intervening-in-hate-violence/10319/.

[3] Tina Moore, Gay-bashing Attacks on the Rise in City, Could Double Last Year’s Total, N.Y. Daily News (Aug. 18, 2013), http://www.nydailynews.com/new-york/gay-bashing-attacks-rise-city-article-1.1430370.

[4] Kirstin S. Dodge, “Bashing Back”: Gay and Lesbian Street Patrols and the Criminal Justice System, 11 Law & Ineq. 295, 296 (1993) (“Abandoned and even assaulted by those charged with protecting them, those in gay and lesbian communities have taken matters into their own hands; they have organized groups of citizens trained to patrol predominantly gay neighborhoods to deter assaults against members of the community and to directly intervene in bashings when they happen. This self-help effort has met with great criticism both from within and outside of the gay and lesbian community.”).

[5] Cisgender people are those whose assigned sex at birth reflects their actual sex.

[6] Annie Steinberg, Jane Brooks, & Tariq Remtulla, Youth Hate Crimes: Identification, Prevention and Intervention, 160 Am. J. Psych. 979 (2003), available at http://ajp.psychiatryonline.org/article.aspx?articleID=176221 (“Data on convicted hate crime perpetrators have revealed that many of the more serious forms of hate violence are committed by individuals with prior criminal histories, those who are economically marginalized, and those who have a propensity for substance abuse.”).

[7] See Brooke A. Emery, The Upbringing of a Creature: The Scope of a Parent’s Right to Teach Children to Hate, 4 Mod. Am. 60 (2008) (“Teaching racism to a child jeopardizes a child’s mental and physical health.”).

[8] E.g. Ernest Drucker, Population Impact of Mass Incarceration Under New York’s Rockefeller Drug Laws, 79 J. Urb. Health 5 (2002) (discussing the reduced life expectancies of prisoners in New York convicted of non-violent drug offenses); Alfonso A. Castillo, Guilty Plea in Gruesome Murder Deal Slammed, Newsday, Sep. 13, 2007, at A4 (noting that life expectancy of prison inmates is shorter than that of the civilian population “because of unhealthy living conditions and violence.”).

[9] Dodge, supra note 3, at 295, 320 (discussing New York’s Pink Panthers, who used whistle-blowing and radios to startle attackers and call the police).

[10] Richard Fossey & Perry A. Zirkel, Liability for Student Suicide in the Wake of Eisel, 10 Tex. Wesleyan L. Rev. 403, 406 (2004) (“At common law, an individual did not have a duty to prevent another from committing suicide. This view was an extension of the common-law view that one has no duty to rescue another from peril.”).

[11] See Nicholas J. Johnson, Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy, 45 Conn. L. Rev. 1491, 1496 (2013) (“Blacks in the leadership and at the grassroots, sustained and supported armed self-defense as a matter of policy by insisting upon a fundamental distinction between private self-defense against imminent threats and collective political violence that was considered damaging to group goals.”); Bruce Hartford, Two Kinds of Nonviolent Resistance, Civil Rights Movement Veterans (2004), available at http://www.crmvet.org/info/nv2.htm.

[12] Mathew S. Nosanchuk, Response: No Substitutions, Please, 100 Geo. L.J. 1989, 1994 (2012) (“[Marriage] represents an affirmative public sanction for gay and lesbian relationships, according them a societal legitimacy that could not otherwise be obtained. Finally, support for marriage equality provides straight allies for LGBT rights with a means to express support for LGBT rights that is familiar, resonates with their own experience, and can be described in a way that emphasizes common experience rather than difference.”).

Whither Reform? Domestic Surveillance in the Electronic Age

Photo by Sean MacEntee / Available on Flickr

By Aimee Thomson

The recent and ongoing disclosures by Edward Snowden have revealed massive U.S. government-operated surveillance programs that vacuum up almost every aspect of modern communication in the name of national security. Since the first documents came to light last June,[1] a broad coalition of civil rights and privacy advocates has demanded reform of the substantive laws and procedural safeguards underlying these programs. Six months later, however, domestic surveillance remains little changed.

A full exploration of the legal authority for, and scope and use of, the signals intelligence collected by the National Security Agency (NSA) exceeds the scope of this article.[2] But, in brief, the revealed surveillance programs fall into two principal legal categories.

Bond v. United States and the Future of the Treaty Power

By Thomas Dollar

The strange case of Carol Anne Bond returned to the Supreme Court in November. While the facts of the case are straight out of Jerry Springer, the outcome of Bond v. United States could determine the future of the United States’ power to enter into and enforce treaties. The story began when Ms. Bond discovered that her husband had impregnated her soon-to-be-ex-best friend, Myrlinda Haynes. Bond sought revenge—against Ms. Haynes, naturally. A trained microbiologist, Ms. Bond stole some highly-toxic powder from her employer, the Rohm and Haas chemical company. She spread this powder on the doorknobs and mailbox of Ms. Haynes’s suburban Philadelphia home in the apparent hope that the chemicals would cause Ms. Haynes severe burns. Ms. Haynes reported the suspicious powder to local authorities, who then tested it for cocaine. When the tests returned negative, the local police lost interest in the matter.

It was only after Ms. Haynes notified the Postal Service that federal authorities launched an investigation. Ms. Bond was indicted in the Eastern District of Pennsylvania and convicted of violating 18 U.S.C. § 229(a)(1), a criminal statute implementing the United States’ treaty obligations under the 1993 Chemical Weapons Convention. Ms. Bond appealed her conviction, arguing that § 229 exceeded Congress’s authority to enforce treaties.[1]

The Constitution empowers the President to sign treaties, which must be approved by a two-thirds majority of the Senate.[2] A treaty may be self-executing by its own terms. The whole Congress may also enforce and give effect to a non-self-executing treaty through the Necessary and Proper Clause.[3] Treaties validly enacted under the Constitution are the “supreme Law of the Land,” and preempt contrary state laws.[4] Does this Treaty Power give the Senate and President—perhaps even to the exclusion of the House—the power to enact laws Congress could not otherwise enact? In 1920, the Supreme Court attempted to address the meaning and limits of the Treaty Power in Missouri v. Holland,[5] a short opinion that has since ruffled many feathers.

At the time, a fashion for extravagant plumage on ladies’ hats and table settings was leading some migratory-bird species to the brink of extinction. The trouble with migratory birds is that they migrate, with no apparent regard for jurisdictional boundaries or states’ authority. New York might enact a law to limit the taking of swans, but New York authorities would be helpless to protect the bold fowl that was foolish enough to fly into the New Jersey Meadowlands. Enter Congress, which in 1913 enacted the Weeks-McLean Act. Weeks-McLean empowered federal regulators to limit the taking of migratory birds and declared these birds to be “within the custody and protection of the Government of the United States . . . .”[6] But Weeks-McLean had a major shortcoming: it was not at all clear in 1913 that Congress had the authority to enact such a law. Under the common law, migratory birds belonged to the states, and the Commerce Clause had not yet evolved to extend Congress’s authority to matters beyond the direct effects of interstate trade.[7] Congress solved this constitutional predicament by invoking the Treaty Power. President Wilson signed the Migratory Bird Treaty[8] with the United Kingdom, which at the time governed Canada’s foreign affairs. After the Senate ratified the treaty, the full Congress gave it force through the Migratory Bird Treaty Act of 1918.[9]

This is the statute that the Court confronted and upheld in Holland. Missouri argued that the Necessary and Proper Clause gave no additional power to Congress to regulate intrastate activity than could be exercised under the Commerce Clause—even when executing a validly ratified treaty. Justice Holmes, writing for the Court, shot this argument down and declared that, while “[a]cts of Congress are the supreme law of the land only when made in pursuance of the Constitution . . . , treaties are declared to be so when made under the authority of the United States.”[10] The Court thereby appeared to hold that the Treaty Power extends beyond the powers enumerated in Article I to encompass all matters that modern nation states might deal with. These implications caused a fair amount of consternation on the political right. A constitutional amendment was considered at one time that would have restricted the Treaty Power to only those matters over which Congress would otherwise have the power to legislate.[11] While this amendment failed in the Senate, the Supreme Court clarified that treaties could not abrogate the Bill of Rights.[12]

By mid-century, Congress’s Commerce Clause powers had expanded greatly since the time of Holland. The Supreme Court abandoned its pre-New-Deal formalism[13] and freed Congress to address national concerns without judicial interference.[14] The Court also construed more broadly Congress’s power to enforce the Reconstruction Amendments.[15] Given this shift by the Court, Congress simply had no need to use the Treaty Power as a basis for domestic legislation. This era of judicial deference to Congress ended in 1995, when the Court struck down the Gun Free Schools Zones Act in United States v. Lopez.[16] Congress had enacted the law without really bothering to explain how it related to interstate commerce.[17] To the Court’s new conservative majority, it looked too much like Congress exercising the general police power.

Five years later, the Court took another step back toward its old formalistic view of federalism in United States v. Morrison. [18] Morrison struck down 42 U.S.C. § 13981, a part of the Violence Against Women Act (VAWA) that created a federal cause of action over “crimes of violence motivated by gender.” Unlike in the Gun Free School Zones Act, here Congress compiled a “mountain of data” to demonstrate that sexual- and gender-based violence in the aggregate had substantial negative effects on interstate commerce.[19] Congress also found that a “pervasive bias” existed in state courts to deprive victims of gender-based violence of their equal protection of the laws.[20] These constitutional bases would have been sufficient for the McClung and Morgan Courts, but they were not sufficient for the five conservative justices in 2000. The Court invented a new rule: because gender-based violence was not itself an economic activity, its aggregate effects would be ignored for Commerce Clause purposes. States’ failure to provide a remedy to victims was also not enough to justify congressional action under the Fourteenth Amendment, even if the effect of that failure was to deny victims their equal protection.

“If the allegations are true, no civilized system of justice could fail to provide [the victim, Christy Brzonkala,] a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States,”[21] wrote Chief Justice Rehnquist. Of course, Ms. Brzonkala only filed suit under VAWA because the officials at her Virginia state university had failed to take her sexual-assault claim seriously.

Stripped of its Commerce Clause and Fourteenth Amendment powers,[22] could Congress ever re-enact a statute like the part of VAWA the Court struck down? The Treaty Power may provide an open door—one that the conservative justices look eager to slam shut in Bond. The U.S. is a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), although the Senate has never ratified it. CEDAW requires parties to “pursue by all appropriate means and without delay a policy of eliminating discrimination against women . . . .”[23] If the Senate ever ratified CEDAW, Holland suggests that Congress could then enact a new VAWA as a necessary and proper means for meeting the treaty’s obligations. At oral argument in Bond, Justice Alito worried about this possibility. Solicitor General Donald Verrilli did little to mollify him and reiterated the principle of Holland: “I think the question in that case would be whether the treaty is a valid exercise of the Treaty Power.”[24]

While no one contests that the Chemical Weapons Convention is itself valid, even Justices Breyer and Ginsburg expressed concern that, without some limiting principle, Congress could use the Treaty Power to do whatever it wanted. But the limiting principle might be in the Treaty Power itself, which demands the cooperation of the President and two thirds of senators. Since treaties are usually non-self-executing, the full Congress must then enact enabling legislation through the normal process. These are no small obstacles, and as a result the U.S. has failed to ratify treaties that nearly every other nation on earth has.[25] The justices hypothesize outrageous and absurd consequences of an unrestricted Treaty Power, when in reality getting any treaty enacted is a difficult feat. The only question is how restrictive the Court decides to be in policing the elected branches’ prerogative. Will Bond do to the Treaty Power what Morrison did to the Commerce Clause and Fourteenth Amendment Powers? The justices’ questions at oral argument suggest as much.

There’s a sad symmetry between the two cases. As Justice Ginsburg noted,[26] the saga of Carol Bond and Myrlinda Haynes never would have reached the Supreme Court if Pennsylvania authorities had taken Ms. Haynes’ pleas for help seriously. If federal actors usurped the state’s police power, it is only because the state had failed to exercise it. The justices may once again conclude that under our federal system, a victim’s remedy must be provided by her state, and not by the United States.

Thomas is currently a 2L at NYU School of Law. He is a Staff Editor on the Review of Law & Social Change and Co-Chair of NYU Law Students for Reproductive Justice.

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[1] See United States v. Bond, 581 F.3d 128, 132 (3d Cir. 2009).

[2] U.S. Const. art. II, § 2.

[3] See, e.g., Medellin v. Texas, 552 U.S. 491, 505 (2008).

[4] U.S. Const. art. VI.

[5] 252 U.S. 416 (1920).

[6] A Guide to the Laws and Treaties of the United States for Protecting Migratory Birds, Migratory Bird Program, U.S. Fish & Wildlife Serv. (Apr. 11, 2011), http://www.fws.gov/migratorybirds/regulationspolicies/treatlaw.html.

[7] See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918); United States v. E.C. Knight Co., 156 U.S. 1 (1895).

[8] 39 Stat. 1702 (1916).

[9] 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703–12 (2012)).

[10] 252 U.S. at 433–34.

[11] See Nelson Richards, The Bricker Amendment and Congress’s Failure to Check the Inflation of the Executive’s Foreign Affairs Powers, 1951–1954, 94 Cal. L. Rev. 175, 178 (2006), available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1277&context=californialawreview.

[12] Reid v. Covert, 354 U.S. 1, 16–17 (1957).

[13] Wickard v. Filburn, 317 U.S. 111 (1942).

[14] See, e.g., Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) (holding that Congress’s Commerce Power extended to banning racial discrimination in accommodations); Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that Congress’s Commerce Power extended to banning racial discrimination in small restaurants).

[15] Katzenbach v. Morgan, 384 U.S. 641 (1966) (holding that Congress could ratchet up civil-rights guarantees beyond what the Court had found to be required under the Constitution).

[16] 514 U.S. 549 (1995).

[17] Id. at 561.

[18] 529 U.S. 598 (2000).

[19] 529 U.S. at 634 (Souter, J., dissenting).

[20] Id. at 619–20.

[21] Id. at 621.

[22] Since Morrison, the Court furthered narrowed the Commerce Power in National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012). But see Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the application of the federal Controlled Substances Act against intrastate use of medical marijuana). Congress’s power to enforce the post-Civil-War amendments was also circumscribed in Shelby County v. Holder, 133 S. Ct. 2612 (2013).

[23] Convention on the Elimination of all Forms of Discrimination Against Women art. 3, opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13, available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article3.

[24] Oral Argument at 47–48, Bond v. United States, No. 12-158 (U.S. Nov. 5, 2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-158_8m58.pdf.

[25] See Jo Becker, Dispatches: Will US be Last to Endorse Child Rights Convention?, Human Rights Watch (Nov. 26, 2013), http://www.hrw.org/news/2013/11/26/dispatches-will-us-be-last-endorse-child-rights-convention (noting that only the United States and Somalia have failed to ratify the Convention on the Rights of the Child).

[26] Oral Argument at 10–11, Bond v. United States, No. 12-158 (U.S. Nov. 5, 2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-158_8m58.pdf.