Volume 25, Issue 3

Table of Contents

ARTICLES

Reinventing Black Politics: Senate Districts, Minority Vote Dilution and the Preservation of the Second Reconstruction
By Terry Smith

The United States Senate is an unsung power in the tripartite division of our constitutional government. Yet, through its advice and consent role in the appointment of federal judges, the Senate’s actions permeate the separation of powers and the daily lives of Americans, at times eclipsing the authority of the President himself. One need only witness President Clinton’s recent surrender of power to the G.O.P.-controlled Senate in the selection of a federal court of appeals nominee to the Ninth Circuit to understand the extraordinary power vested in this body. See Neil A. Lewis, Clinton Agrees to G.O.P. Deal on Judgeships, N.Y. Times, May 4, 1998, at A1.

Perhaps no groups of Americans have been more affected by the Senate’s advice and consent power than racial minorities, who have historically looked to the federal judiciary for protection of their civil rights. The increasingly conservative cast of the federal judiciary, however, has led to retrenchment rather than protection of minority interests. The character of the judiciary, in turn, is in large part attributable to the Senate which must confirm members of the federal bench. The vicious cycle perpetuated by a disproportionately White and conservative Senate confirming a disproportionately White and conservative federal bench is abundantly evident in the Supreme Court's recent voting rights jurisprudence, which has erected unnecessary and unprincipled barriers to the creation of majority-minority legislative districts. Without reform of the manner in which Senators are elected, such that minorities have a greater voice in that institution, further erosion of minority voting rights is inevitable.

While other commentators have argued that a constitutional amendment to eliminate the equal representation of the states in the Senate would aid minorities, in this Article, Professor Smith finds the tools for reforming the Senate in the Seventeenth Amendment to the United States Constitution and the Voting Rights Act of 1965. Drawing on his earlier work in which he argued that states may voluntarily create United States Senate districts to aid minority voters, Professor Smith now makes the further and more controversial claim that states can be compelled to create majority-minority or minority-enhanced Senate districts in order to remedy minority vote dilution. Professor Smith discovers support for this novel proposition in the text and legislative history of the Voting Rights Act and in the legislative history of the Seventeenth Amendment, which, contrary to its placid, race-neutral text, focuses primarily on minority disenfranchisement and attempts to prevent the implied repeal of the Fifteenth Amendment.

Employing illustrative Senate districts and original empirical analysis of voting returns, Professor Smith demonstrates that his proposed remedial Senate districts will avoid the obstacles created by the Supreme Court’s recent reverse-racial gerrymandering cases and thus will reinvent Black politics by infusing the Senate with more representative voices.

Welfare Reform Under the Personal Responsibility Act: Ending Welfare as We Know It or Governmental Child Abuse?
By Nancy A. Wright

In August of 1996, in an effort to "end welfare as we know it", Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("the Act"). The Act terminates welfare entitlement programs which have provided crucial safety nets for indigent families for the past sixty-two years. The Act also mandates that states impose work requirements and time limits on the length of time poor families can receive public assistance. In addition, the Act permits states to deny assistance to teenage mothers or to children born to parents more than ten months after the family went on welfare.

Since more than two-thirds of the 14 million people eligible for welfare checks are children, any welfare reform scheme that pushes parents abruptly off the rolls or refuses extra benefits for additional offspring is the equivalent of governmental child abuse since it will spawn a generation of hungry and hopeless American children. In an effort to throw out the bath water of a flawed welfare system, these plans threaten to toss out the baby as well. This is clearly not the desired result of enlightened welfare reform.

The author suggests alternative ways to reform the current welfare morass while at the same time encouraging economic independence and replacing the specter of governmental child abuse with the vision of a governmental commitment that all American children will be provided with the basic essentials of life. In Part I, the author describes the demographics of families on the poverty continuum, including both welfare recipients, members of the working poor and their children. In Part II, the author discusses and dispels some of the most prevalent myths regarding welfare recipients, which form the premises underlying welfare reform provisions involving time limits, family caps and terminating assistance to teenage parents. In Part III, the author suggests several ways to regain some of the costs of providing enlightened social programs. Finally, in Part IV, the author describes humane and effective alternatives for reforming welfare with the goal of enabling all those on the poverty continuum to achieve economic independence without the threat of governmental child abuse through sacrificing the health and well-being of America’s impoverished children.

NOTES

By Molly Peterson

James Madison noted that "[t]here are two methods of curing the mischiefs of [a] faction: the one, by removing its causes; the other, by controlling its effects." Campaign finance regulation, often spoken of as curing the mischiefs of special interest groups, has experienced a popular resurgence spawned by inquiries into extranational contributions in the 1996 presidential election and the 104th Congress’ filibuster of the McCain-Feingold reform package. Since the Supreme Court’s decision in the 1976 case Buckley v. Valeo, striking several parts of the Federal Election Campaign Act for infringing upon First Amendment-protected political expression, the efficacy of campaign finance reform laws has been significantly abrogated by the Buckley-articulated necessity that to survive, such laws must be narrowly tailored to serve compelling government interests. While the Buckley Court relied solely on the interest of corruption, it concurrently indicated the possibility that other "ancillary" interests could also bolster reform. Subsequent Court decisions have characterized corruption as the sole interest emerging from Buckley, and have maintained a nearly impregnable strict scrutiny in this context of political expression.

During the past decade, several states have enacted more radical reforms, involving variable contribution limits or "cap gaps," partial public financing and aggregated group contribution limits—all of which have struggled to survive First Amendment challenges in federal and state courts. Most recently, in November of 1996, the state of Maine passed by referendum its Clean Election Act, structuring a full public financing system for state gubernatorial and representative races. Several groups are now challenging these laws on First Amendment grounds.

This Note reexamines the question of compelling government interests for campaign finance reform in light of "radical" reforms in Kentucky, Minnesota, Missouri, and Wisconsin and unprecedented full public financing in Maine. It concludes that a broader interpretation of corruption, preservation of representative government, and equalizing access to the process could each or together qualify as compelling government interests to withstand First Amendment review. In particular, both a broad conception of corruption and the interest in preserving representative government could justify Maine’s Clean Election Act. While the First Amendment requires a high level of review, other constitutional interests in tension with the freedom of expression could require a broader conception of the interests of the state.

Fetal Homicide Laws: Shield Against Domestic Violence or Sword to Pierce Abortion Rights?
  By Alison Tsao

Under the common law, the intentional killing of a fetus by a party other than the pregnant woman did not constitute murder. A child had to be born alive for homicide statutes to apply. The primitive state of medicine during the common law period necessitated this "born alive" rule because doctors could not determine whether a fetus was capable of independent existence before the baby was born. Nor could doctors accurately determine the cause of death of a fetus. The present sophistication of the medical profession has largely removed the difficulties in determining the exact stage of fetal development and whether a fetus died as a result of injuries inflicted upon the pregnant woman by third parties.

Approximately half of the states have enacted fetal homicide, also known as feticide, statutes while the remaining states retain the "born alive" rule. This Note discusses the differences among the feticide statutes enacted by various state legislatures. It addresses the constitutional implications raised by feticide statutes, specifically in terms of equal protection and due process challenges that have been raised by criminal defendants prosecuted under feticide laws. This Note hypothesizes on the policy reasons legislators have enacted feticide laws and tracks the debate between supporters of feticide statutes and abortion rights advocates, who generally oppose feticide legislation. Finally, this Note proposes a model feticide statute to address the constitutional and policy concerns raised by feticide laws.