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- Title
Uniquely Common: The Cruel Heritage of Separating Families of Color in the United States.
- Authors
Johnson-Farias, Rachel
- Abstract
Headlines abound with news of migrant family separation at the United States- Mexico border. Many of those articles attribute the practice of family separation to recent policy shifts under the current administration. Though this administration's policies are especially cruel and punitive, they are not novel. The separation of Black families, noncitizens at the time, was a practice endemic to U.S. slavery. The historic practice of statesponsored family separation persists today--at least in part--via criminal and immigration incarceration. Family separation disproportionately impacts families of color. When confronted with family unity cases, United States courts have patched together a constitutional right to family unity. However, over time, courts have denied and/or eroded due process protections that should accompany the right. By removing due process protections, courts have removed the force of the right to family unity. And, courts have done so in a way that implicates Equal Protection violations as low-income families and families of color are disproportionately kept from enjoying a right to family unity. Guaranteeing adequate and equal due process in all parental termination proceedings is central to realizing an equitable right to family unity. This Article utilizes a reproductive justice frame to investigate the ways in which the family separation we are seeing today is rooted in slavery and exacerbated in carceral settings. In response, this Article calls for federal protection. First, the Article revisits the infamous Dred Scott case from a family reunification perspective and highlights how the Court's holding serves a reproductive injustice. Next, the Article evaluates the case of Abby Lassiter, in which the Supreme Court denied a right to counsel in parental termination proceedings. Together, Dred Scott and Lassiter highlight the ways in which white supremacy and the erosion of due process combine to create a legal system ripe for the immigration abuses we are currently witnessing. This Article goes on to examine some of those immigration abuses with an emphasis on family separation at the point of birth while incarcerated. In light of the heritage of family separation in the United States and the Supreme Court's failure to protect a right to family unity for families of color, this Article concludes by calling for a de jure constitutionalized right to family unity for all people subject to United States jurisdiction.
- Subjects
UNITED States; FAMILY separation policy, 2018-2021; FAMILY unity (Law); UNITED States immigration policy; SLAVERY laws; UNITED States citizenship; LAW
- Publication
Harvard Law & Policy Review, 2020, Vol 14, Issue 2, p531
- ISSN
1935-2077
- Publication type
Article