In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. 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” 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.
Criminal law, constitutional law, legal history, punishment, police, incarceration, prison-industrial complex, abolitionism, race, slavery, Jim Crow, Reconstruction Amendments, Supreme Court of the United States, SCOTUS, Flowers v. Mississippi
Harvard Law Review
Roberts, Dorothy E., "Foreword: Abolition Constitutionalism" (2019). Faculty Scholarship at Penn Carey Law. 2354.
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133 Harv. L. Rev. 1 (2019)