Ours is a racist Constitution. Despite its soaring language, it was founded on slavery and a commitment to racial inequality. This vision is etched in the constitutional text, from the notorious Three-Fifths Clause to the equally repugnant Fugitive Slave Clause. And despite the Civil War and the Reconstruction Amendments, the Constitution retains these vestiges of slavery in its fabric. After 230 years, it is time to remove these troubling provisions from the Constitution. This Essay offers a radical departure from prior constitutional practice. Instead of appending yet another amendment that would simply require readers to ignore the offending language, this Essay proposes a constitutional amendment that excises these words from the text. While this amendment would not abridge, enlarge, or modify any substantive rights, it would generate a document that further distances the United States from its racist past and better reflects this present moment in the journey to form a more perfect Union.
When can a noncitizen bring her claims directly before a federal district court? The answer is complicated, due in large part to a provision of the Immigration and Nationality Act, codified at 8 U.S.C. § 1252(b)(9). That provision states that if a noncitizen’s claims “arise from” her removal proceedings, they cannot be heard by a federal district court. Instead, those claims would be subject to more limited judicial review in a federal court of appeals only after the noncitizen’s immigration removal proceedings have concluded. If, however, a noncitizen’s claims do not “arise from” removal proceedings, § 1252(b)(9) poses no obstacle to district court jurisdiction. In these instances, noncitizens may have a more immediate opportunity to obtain judicial review and hold the government accountable for its potentially unlawful action. This Comment argues that § 1252(b)(9) should be read narrowly in light of the Supreme Court’s decision in Jennings v. Rodriguez. To effectuate that interpretation, this Comment offers and evaluates several factors and frameworks that district courts can employ when confronted with claims that may implicate § 1252(b)(9).