Max Boot’s Anti-Desegregationism
I learned earlier this week that before Max Boot became a national security expert and acquired his current wingnut welfare perch at the Council on Foreign Relations he was involved in other branches of right-wing crankier and even wrote a book called Out of Order: Arrogance, Corrption, and Incompetence on the Bench decrying—wait for it—judicial activism. Searching around in the book you can tell that Boot is a cut above your standard-issue conservative since he has the good sense to recognize that the entire “activism” controversy was spawned not in some rights of the accused case, but rather in the Supreme Court’s decision to rule that school segregation was illegal in the landmark Brown vs. Board of Education decision.
As he writes, “as with all modern judicial activism, the answer comes back, ineluctably, to Brown v. Board of Education.” Or, since “judicial activism” is a made-up nonsense word, the way I would have put it would have been that “as with all modern complaining about judicial activism, the answer comes back, ineluctably, to the fact that white supremacists didn’t like Brown v. Board of Education.” But of course Boot, being a contemporary conservative rather than a 1950s or 60s conservative, isn’t a white supremacist at all. He even goes so far as to concede that “the result is one we can all applaud.” He’s just more upset by the prospects of courts overturning the demographically expressed will of a herrenvolk democracy that denied its black citizens the right to vote in order to better be able to oppress them with the systematic application of terrorist violence than he is by the apartheid regime itself.
And so we get yet another classic expression of the weird conservative view on racism. They’re not exactly for white racism, and they get very upset if you accuse them of being for it. They’re just against doing anything about it and very concerned that efforts to do something about it are having all manner of dire consequences.
69 Responses to “Max Boot’s Anti-Desegregationism”
Register
RSSLogin
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
September 5th, 2009 at 8:41 am
We all had a good system goin’ on here, and the colored folks was happy and wasn’t all confused with these new roles and people knew they place, until them outside agitators came in here and stirred everything up…
September 5th, 2009 at 8:48 am
They’re not racists, you see. They’re just against anti-racists. Big difference.
September 5th, 2009 at 8:48 am
The same thing is true about the emancipation of women (and gays), although in a more complicated way. And this fake complaint by conservatives goes all the way back to Jim Crow, and even earlier, to the Dred Scott decision and how it was overturned.
The late Father Neuhaus liked to complain about “bricolage” (great use of the word) in the way the Supreme Court dealt with individual rights in adult matters — first the Constitution was held to protect a right to privacy “emanating” in “penumbrae) from the First and Fourth Amendments, to include a right for married people to contraceptives. Then that right was extended (Neuhaus complained) to UNmarried people (which is also Virginia GOP candidate for governor McConnell’s complaint in his 1989 thesis), and so on to a nuanced, limited right to abortion (Roe), and on to gay rights and so forth.
It’s more complex with women for two reasons — First, women’s suffrage has a deep core of support, even with men, that is rooted in the conservative vision of America as more rural and Western than we really are: Wyoming was the first state to let women vote. Second, women’s right to vote was acknowledged (NOT created) in a Constitutional amendment.
But don’t imagine the two categories are unrelated, women and race. Before the Civil War, abolitionists and women’s rights organizers made common cause, notably Frederick Douglass and Susan B. Anthony, and both during and immediately after the War they fought for the 13th, 14th, and 15th amendments.
It’s a great exercise in intellectual hypocrisy, to ask conservative “strict constructionists” and “original intent” guys if Dred Scott was properly decided. I don’t think there is any serious dispute that the original Constitution clearly expected, in fact intended, to perpetuate slavery, and it was only the (righteous?) political temporizing that put off the problem until Taney finally said it plain — under the Constitution, “black men had no rights white men need respect”. What’s more, Taney’s decision held that NO state could actually abolish slavery — so much for the bullshit that any of this is about “state’s rights”, including now.
But the struggle for a truly national citizenship was harder, and more exhausting than anybody anticipated, which had unintended consequences: the 13th and 14th amendments (emancipation and national birthright citizenship for all) were ratified more easily than the 15th (voting), and as the formerly confederate state legislatures were allowed to send Senators and Reps to the Capitol after pledging their loyalty to the amended Constitution, the prospects for the 15th got pretty dicey.
So Douglass agreed to drop women — the 15th guarantees a right to vote regardless of race or former condition of servitude, not gender. It’s hard to see that he was wrong: the 15th might never have been ratified with women in it.
Susan B. was pissed — but she didn’t give up. She brought a lawsuit to get the Supremes to recognize that women had a right to vote — under the national citizenship of the 14th amendment, since “all persons born” would necessarily include women as full citizens.
This posed a real problem for the Justices, since the plain language of the Constitution supported the rights of women. So they resolved their dilemma by determining — under the 15th amendment — that states determined the rules for voting.
Which is how we got Jim Crow.
So the “judicial activism” that Max Boot and conservatives like to bitch about is a lot older than Brown vs. Board of Education, and it’s based on a very different idea of citizenship, not on the role of the judiciary.
September 5th, 2009 at 8:48 am
Well, he is a Zionist swine, isn’t he. So, what do you expect, this is all perfectly normal for militant racist scum, which is what every Zionist is, in this day and age. And, of course, there’s absolutely nothing ‘conservative’ about it.
September 5th, 2009 at 9:25 am
I thought Marbury v. Madison was supposed to be the cornerstone of judicial activism.
September 5th, 2009 at 9:28 am
Waiting for the usual anti anti-racism folks to appear. Still a bit early.
September 5th, 2009 at 10:01 am
Which of course makes Obama’s opposition to gay rights
all the more incomprehensible.
Nice to see him aligned with Boot on more than one issue.
September 5th, 2009 at 11:26 am
Isn’t it possible for someone to agree with the results of Brown without agreeing that the method used was the correct method? I haven’t read Boot’s book or any arguments by him about this issue, but if he’s saying that the judiciary has been asked to step in (and has stepped in) where the Constitution didn’t originally intend, then I don’t think that he’s out of line.
September 5th, 2009 at 11:35 am
I’m just glad he’s writing boilerplate wingnut books instead of “history”. I’m sick of his books clogging up shelfspace in the History section of my local bookstore.
September 5th, 2009 at 11:50 am
Take Barry Goldwater. He was the governor who desegregated public employment in Arizona. He wasn’t a segregationist, but a desegregationist.
And yet, his opposition to segregation paled beside his concern that a really racist person who opens up a business to the public might have to serve a black patron.
September 5th, 2009 at 11:53 am
Oh please. I defy you to name a single action Obama has even taken to oppose a bill or policy that extends gay rights. Take as much time as you need.
Picking your battles isn’t remotely the same things as opposing gay rights.
September 5th, 2009 at 12:50 pm
The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.
The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.
The decisions of the Supreme Court in the school cases are a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.
The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.
September 5th, 2009 at 12:51 pm
Take Barry Goldwater. He was the governor who desegregated public employment in Arizona. He wasn’t a segregationist, but a desegregationist.
And yet, his opposition to segregation paled beside his concern that a really racist person who opens up a business to the public might have to serve a black patron.
I think that’s quite illustratie. Goldwater wasn’t, exactly, what one would term a bigot. He, after all, proactively desegregated the government under his adminnistration.
His opposition is one of principle; essentially, the rights of privacy, which he long championed, would in its most expansive form protect the right of a regrettably racist shopowner to express his personal racism. As schools were public entities, while shopowners conduct private commerical transactions, there is indeed a difference, which is that private individuals should be able to be racist, on an individual level, toward other private individuals.
Goldwater wasn’t a bigot by any measure, and it would be wrong to tar all those views which he held, as being somehow tangentially racist through its opposition to anti-racist actions that invade the rights of privacy.
September 5th, 2009 at 12:54 pm
That’s the fundamental principle to which Goldwater adhered: that unless a matter of grievous harm or danger (lynching, KKK, etc.) private individuals had the right to act in a race-conscious way, as private individuals, toward other private individuals.
September 5th, 2009 at 12:57 pm
The original Constitution does not mention education.
It does not mention murder and rape either. I guess it makes them perfectly legal.
September 5th, 2009 at 1:42 pm
ABB,
Murder and rape are not Federal crimes, unless perpetrated against a Federal employee. The Constitution specifically reserves to the various states the right to make laws on topics other than those granted to the Congress.
The Supreme Court has ruled frequently that the specific prohibitions on legislative activity in the Constitution and the Bill of Rights apply equally to the states but that they have the right to pass laws on any topic that does not contravene those restrictions.
Your argument is juvenile.
September 5th, 2009 at 1:44 pm
Can I get arrested for public nudity if I waggle me naughty bits at a lunch counter?
Yes. In fact, those racist shop owners would probably be the first to call the police.
Even the Civil Rights Act exempted truly-private places, like homes and social clubs, from its provisions. Places of public accommodation like motels and lunch counters are not private. Goldwater argued for treating them as such not because of a racial agenda but because, as Myles said, he held a radical view about the proper limit of government action. I disagree with this view, but it’s a respectable one, not like, say, the segregationist beliefs one finds in National Review.
I’ll just add that, given the contempt with which contemporary movement conservatives treat the idea of privacy rights, this probably doesn’t work as an explanation of their behavior.
September 5th, 2009 at 1:53 pm
Murder and rape are not Federal crimes, unless perpetrated against a Federal employee. The Constitution specifically reserves to the various states the right to make laws on topics other than those granted to the Congress.
Right. So, you are of the opinion that a state can legalize murder, correct? For example, a state could pass a law stating that anyone whose first name starts with the latter A should be executed, and the SCOTUS should have no objection to it, is that what you’re saying?
September 5th, 2009 at 2:00 pm
It seems to me that Goldwater’s position was a reasonable and principled one. It has coherence and is consistent with his Libertarian principle of limiting what government can and should regulate to those things which affect society’s legal framework.
I think it fails on a human level because it ignores the sadistic thrill that comes from the exercise of undeserved power and the soul-deadening effect of being always excluded based on something one cannot change. In Jim Crow days a black person in the south would only be seen for his or her personal character by a small minority of white citizens. While it’s true that many mid- and upper-class whites had “affection” for their house servants, the underlying corruption of the relationship exposes those feelings as little more than sentimental noblesse oblige.
It was easy for craven racists to gain political power by catering to the unquestioned prejudices of most of the electorate.
In other words, most southern whites were not Barry Goldwater. They were quite satisfied with Jim Crow and in fact would have been ecstatic with an even more Apartheid system. In order for genuine relationships based on character and affinity to grow between people of different races, they must be together from childhood as peers, not master and servant.
For the United States to become “a more perfect Union” the system of rigid social stratification based on race had to be destroyed. That process is not complete, but great strides have been made, and we should celebrate it.
September 5th, 2009 at 2:07 pm
Well, they could just, like, move. They’re choosing to keep living in the South. Nobody is holding a gun to their heads. /libertarian
September 5th, 2009 at 2:11 pm
That’s an interesting hypothetical. I doubt that any state would try such a thing, because the people with names starting from B through Z would probably wonder “am I next?” and vote the rascals out.
It does assume that no one with a name beginning with A was in the state’s upper house or that house has no equivalent to the filibuster……
In any case, I expect that the Supremes would declare such a law invalid based on the cruel and unusual punishment clause as applied to all citizens by the 14th Amendment.
September 5th, 2009 at 2:21 pm
Joe,
As many as could scrape together the bus fare or knew enough about railroads to hop a freight north did in the years leading up to World War II. I don’t think any of us alive today, except some very old black folks, really understand how poor African-Americans living in the “black belt” across Mississippi, Alabama and western Georgia and “the Delta” regions were in those days. This was poverty of means and of information for nearly all of them.
Yes, there was a small minority of educated, cultured black folks in the South. There were a few lawyers and many educated ministers, so in the cities with a significant black population there were opportunities to learn and to dream. But for rural black people life was circumscribed in ways that we think of as the “Third World” today.
September 5th, 2009 at 2:27 pm
I expect that the Supremes would declare such a law invalid based on the cruel and unusual punishment
That doesn’t make sense: it doesn’t have to be either cruel or unusual. They can be executed in a humane and ordinary way, using electric chairs.
September 5th, 2009 at 2:31 pm
The cruel and unusual punishment clause has been interpreted to limit capricious laws, as your hypothetical most assuredly is.
September 5th, 2009 at 2:33 pm
You’re no fun, Ana!
The correct response would have been: “Why should I have to pay for other people’s transportation? /libertarian.”
September 5th, 2009 at 2:35 pm
The cruel and unusual punishment clause has been interpreted to limit capricious laws, as your hypothetical most assuredly is.
Ah. So, interpreting is not a problem, after all. But in that case, why is it important that education is not mentioned in the constitution?
September 5th, 2009 at 3:04 pm
It’s perhaps worth mentioning that Out of Order was published in 1998, and not, say, 1958. Boot’s hand was still cramped from writing it when he started working on Savage Wars of Peace. (Hat tip to Kipling.) Added bonus: Andrew McCarthy, the noted idiot, called Out of Order a “stream of vitriol” in a Commentary review.
Two peop[le have suggested that Goldwater was once Governor of Arizona. I don’t believe this is so.
September 5th, 2009 at 3:27 pm
Imagine a Boot stamping on a black face forever.
He does.
September 5th, 2009 at 3:42 pm
abb1, you’re getting close, but I think Anandakos is simply saying that Brown v. Board of Education should have been decided on Fourth Amendment grounds – given that segregation is capricious.
September 5th, 2009 at 3:44 pm
ABB,
Did I say anything about the Constitution and education?
Look, let’s just say that you’re right about everything. I pledge I’ll never respond to one of your posts again, if you’ll agree for me. We clearly do not speak the same dialect of English.
September 5th, 2009 at 3:45 pm
Or I could use the correct, Eighth Amendment. I have no idea where I got “Fourth” – ugh
September 5th, 2009 at 3:47 pm
K is correct. Goldwater was not governor of Arizona. His desegregation efforts came in posts he held with the Phoenix City Council and Arizona Air National Guard.
My bad.
September 5th, 2009 at 3:50 pm
Anandakos, in all seriousness, you picked up on an thread that had been suggested by “Anonymous.” abb1 and I were working from there.
see: Anonynous @ 12
September 5th, 2009 at 4:05 pm
Since when is the Court using a capability that it has had since Marbury v. Madison in the late 18th century “naked power”?
They also under-estimated the capability of the states and government to exclude a large group of people from those rights by legal and illegal action.
On the contrary, the school cases simply stated that existing legislation was unconstitutional, using Judicial Review, a right they’ve had largely unquestioned since the late 18th century.
I’m getting real tired of these literalist arguments that also seem to miraculously forget the ability of Congress to pass laws promoting the general welfare.
September 5th, 2009 at 4:22 pm
I think this is fairly notable:
And this:
This is fairly illustrative of the very unfortunate, and hopefully transicent, necessity of some fairly constitutionally unconscionable government action (Civil Rights Act), to compensate for the fundamental illiberalism of the conditions which enveloped black life in the South.
The fact that the fundamental mindsets of those people, both black people in the South and their persecutors, were not in any way conducive to the mechanisms of a modern, liberal, free society, meant that drastic action was necessary.
However, my bone of contention is that the Civil Rights Act should not, and cannot, be extended forever. It is unhealthy, for a society which has universally embraced the liberal free-society framework, to keep such a relic pertaining to an illiberal age much longer.
September 5th, 2009 at 4:54 pm
A couple of thoughts:
1. Anonymous – rubbish. The 14th Amendment guarantees equal treatment under the law; public institutions were discriminating by law against one group of tax-payers in favor of another group of tax-payers. The Supreme Court did exactly what it was supposed to in the post-Reconstruction Constitutional order: defend the rights of American citizens against a hostile state government.
My only problem with the Warren Court’s decision-making is that they were too cautious in repairing the damage done by the late 19th century court. Instead of the gradual accumulation of rights through due process and equal protection, they should have simply overruled the Slaughterhouse Cases, and said that the 14th Amendment’s Privileges and Immunities Clauses guaranteed the entirety of the Bill of Rights against the states.
Likewise, with “emanation” – here, I think they needed to bite the bullet and say the 9th Amendment means that rights belong to the people – if people feel they have a right to privacy, it belongs to them.
2. Barry Goldwater was no paragon of virtue. Whatever his personal inclinations about race, his opposition to civil rights law was not founded merely upon a principled objection to Federal power – he made political alliance with Dixiecrats in 1964, knowing exactly what they were up to and why they agreed with him, and he didn’t have a principled opposition to that.
September 5th, 2009 at 4:59 pm
Myles:
“The fact that the fundamental mindsets of those people, both black people in the South and their persecutors, were not in any way conducive to the mechanisms of a modern, liberal, free society, meant that drastic action was necessary.”
What rubbish. The black people in the South, and their white Unionist allies, had no problem running a modern, liberal, free society and did it successfully for a decade or more. Their opponents made a conscious political decision to use violence to overthrow that ruling coalition.
The Civil Rights Act should be eternal, as the living embodiment of the social contract made with the Reconstruction Amendments, that political and civil rights in America should not depend on the friendliness either of the minority or the majority, and that the Federal government will stand as the aegis of the people in protecting them against state governments.
September 5th, 2009 at 6:52 pm
(at 21) That’s an interesting hypothetical. I doubt that any state would try such a thing, because the people with names starting from B through Z would probably wonder “am I next?” and vote the rascals out.
First they came for the cripples, but I was not a cripple….
A state may well not try such a thing, but a pretty well known historic example suggests folks with names beginning with B-Z might very well not behave as you suggest, so too a very well known experiment by S Milgrim.
September 5th, 2009 at 7:04 pm
The Civil Rights Act should be eternal, as the living embodiment of the social contract made with the Reconstruction Amendments, that political and civil rights in America should not depend on the friendliness either of the minority or the majority, and that the Federal government will stand as the aegis of the people in protecting them against state governments.
It most certainly should not be, but I suspect you are immune to the (widely held) reasoning behind my position. Simply put, it was meant as a temporary reprieve against the tyranny of some Southern political institutions, and thus this act should expire as soon as the said tyranny, which is a historic relic, no longer exists. I find it unconscionable that people are still advocating the permanence of the said Act in the year 2009.
The grievous infringement upon states’ rights and the separation of federal and state powers, by the Civil Rights Act, is something we ought to keep within the constitutional mind.
But again, you are probably impervious to constitutional arguments. So, screw you.
September 5th, 2009 at 7:07 pm
The coastal port city of Wilmington, NC was in the 1890’s the state’s biggest city and its economic center, and it had an elected majority black city government until a violent coup d’etat in 1898.
September 5th, 2009 at 7:20 pm
Only possible in a future where the country in question is not the United States. The Civil Rights Act enshrines the essential promises of the United States to its citizens into enforceable law. One could argue that such a law is incompatible with the ideals of, say, a small middle eastern emirate, but until the United States has any plans to be one of those, things like the civil rights act are going to be an essential part of the legal landscape. You can’t promise a society that idealizes equality and freedom while simultaneously allowing others with economic and social power to infringe upon it. It is actually similar to hoping that laws against murder will not be necessary in the future where, one hopes, the country will not be full of people willing to commit murder.
September 5th, 2009 at 7:46 pm
In this view, then, the real anti-Constitutionalists are, therefore, the segregationists, who through their dogmatic intransigence pushed this nation’s citizens and politicians into having to limit the state level authorities (not “rights”) that they clearly abused and that they possessed neither regard for their own state level responsibilities nor for the U.S. Constitution itself.
September 5th, 2009 at 8:19 pm
Guys, Anonymous is copy and pasting from the Southern Manifesto of the 1950s. You’re literally arguing against a bunch of dead white Southern Senators.
September 5th, 2009 at 10:26 pm
Myles:
Under what circumstances should the U.S government not protect the following rights enshrined in the Civil Rights Act of 1964?
Title 1 – barring unequal treatment of voter registrations.
Title 2 – outlawing discrimination in public accommodations.
Title 3 – outlawing state and local governments from discriminating on access to public facilities.
Title 4 – authorizes the Attorney General to sue to desegregate schools.
Title 5 – empowering the Civil Rights Commission.
Title 6 – barring government agencies that take Federal funds from racially discriminating.
Title 7 – prohibiting employment discrimination.
Title 8 – mandating the gathering of voter registration data.
Title 9 – allowing moving civil rights cases from state courts to Federal courts.
Title 10 – establishing a service to help deal with community disputes.
And it’s not unusual to keep outdated laws on the books to prevent a legal recurrence of the outdated behavior. For example, there hasn’t been duelling as a common practice since the mid-19th century, when it was outlawed many states. But abolishing the law isn’t a good move; if it’s not needed to be used, then it doesn’t affect anyone; if it’s abolished, it’s legal.
September 5th, 2009 at 10:41 pm
Under what circumstances should the U.S government not protect the following rights enshrined in the Civil Rights Act of 1964?
My understanding is that as a result of the Act, certain Southern states have had to effectively ask the federal government for permission, every single time, for things like constituency or functional district border redistribution and the like. Apparently this is only one of the many examples of an overly, and unnecessarily, intrusive federal power which has (unequally, as some provisions in effect apply only to certain districts and states and not others, for example, Massachusetts) usurped much of the sovereign dignity of states, and has had a lamentable influence on the political tone therefore.
I think the rights could continued to be assured in a general way, but some of the specific stipulations, of specific powers and actions of oversight, need to be removed and repealed. It’s high time we allow Southern states to grow up and assume their full political dignity.
The Act in its current form hampers the maturity of gubernatorial and local governance with its excessive intrusiveness in everyday action, and thus prevents the formation of elevated and productive political culture; that cannot be allowed to continue.
September 5th, 2009 at 10:46 pm
Actually, that’s the Voting Rights Act.
Which really doesn’t need to be repealed, either. There’s a reason why it wasn’t implemented in Massachusetts.
September 5th, 2009 at 10:49 pm
I have just read Title IX, and my understanding is that it ought be constitutionally questionable, in the present day, given the non-exigency of circumstances. Moving those cases out of states courts, where they properly belong constitutionally, to federal courts, was permissible when state courts were hopelessly bigoted, but as that is no longer the case (even the most conservative judge could not forthrightly ignore higher-court precedent), this title at least should be invalidated.
Also with Title VIII, the original scope of the section, meant to address fairly severe conditions and such worded in a fairly severe way, is now being used in a manner that does not advance good common-law jurisprudence. In the absence of the desperate conditions which made it temporarily necessary, I find it highly dubious an original writer of a general, unspecific anti-discrimination clause would have worded it in the way we have it now. It needs to be removed or at least severely modified to reflect present realities.
I am sure there are similar stories in other sections.
September 5th, 2009 at 10:50 pm
Anonytroll tries way too hard.
September 5th, 2009 at 10:58 pm
Overly and unnecessarily intrusive? Not directly related to voting rights, but some of these southern states (I’m thinking of Texas) will start teaching the bible as a historical document and start telling kids that senator mccarthy was a pretty awesome guy if you turn your back on them for one second (link). Some of these just states can’t be trusted to run shit on their own. Until the power structure of these places isn’t run by the sons of people who were in the KKK then the Civil Rights Act is still performing an important function.
September 5th, 2009 at 10:58 pm
Actually, that’s the Voting Rights Act.
Which really doesn’t need to be repealed, either. There’s a reason why it wasn’t implemented in Massachusetts.
Actually it absolutely does. I quote:
September 5th, 2009 at 11:01 pm
Ack I’m tired. switch around just and states, and I meant the voting rights act rather than the cra as well, but i think both apply.
September 5th, 2009 at 11:12 pm
Again, while Section 5 of the Voting Rights Act was surely necessary then, it cannot be held to be pernanent, and is eminently inappropriate and unacceptable for a liberal free society, in the year 2009.
To argue the reverse is to argue for the continuation of blunt paternalism. That’s not liberalism, that is pure and unadulterated illiberalism.
September 6th, 2009 at 12:27 am
Ever notice how Matt is much, much more comfortable discussing issues related to race in 1954 than in 2009?
September 6th, 2009 at 12:34 am
Which is pretty funny considering how Matt was born in the 1980s.
September 6th, 2009 at 10:44 am
Myles -
Re: Title 9. You make a mistake here: “Moving those cases out of states courts, where they properly belong constitutionally.” Civil rights cases do not properly belong constitutionally in state courts. The very purpose of the 14th amendment was to say that civil rights would henceforth be a Federal concern to protect citizens against state government infringement of their rights; Federal jurisdiction goes hand in hand with Federal enforcement.
Re: Title 8. I think you’re referring to Title VII, about non-discrimination in employment. First of all, I dispute that it “is now being used in a manner that does not advance good common-law jurisprudence,” and I dispute that “desperate conditions” are the only things that make it necessary. Persistent evidence of racial discrimination in hiring, promotion, access to credit, and real estate continues to the current day, and it is precisely the lack of “desperate conditions” that allows it to persist – discrimination is naturalized, routinized, and systematized.
Moreover, given the current limitations of anti-discrimination laws, I think the burden of proof is on you to show how a more general non-discrimination clause would be more conducive to combating discrimination than a stronger, and thus more specific clause.
Regarding the Voting Rights Act, I think the solution is to nationalize the sections that apply only to the South. The right to vote is a national right belonging to all citizens, and should be protected nationally.
September 6th, 2009 at 11:43 am
Opportunism is the explanation for this paradox. From 1900 to 1970, the real power center of the hard right was the bloc of Southern Democrats in Congress.
Segregation-era poll taxes disenfranchised not only blacks but working-class whites (more numerous than blacks in most states of the Upper South); so most voters were upper-middle- and upper-class whites who elected doctrinaire right-wingers. (There were a few exceptions, such as Hugo Black and William Fulbright.)
These Dixiecrats remained in office essentially for life and wound up chairing most of the important congressional committees, where they blocked most progressive legislation except during brief interludes (early New Deal, Great Society) when Democrats held such overwhelming majorities that they didn’t need Dixiecrat votes.
Even when progressive legislation got through, Dixiecrats were able to insert poison pills, such as the no-man-in-the-household provision of AFDC, the single biggest contributor to the fragmentation of black families.
Republican efforts to restrict voting rights today aim to revive the Dixiecrat reign (and expand it into states with large Hispanic populations), producing small, unrepresentative electorates that can sustain a solid bloc of reliable hard-rightists.
September 6th, 2009 at 1:57 pm
The right to vote is a national right belonging to all citizens, and should be protected nationally.
I find it extremely dubious that race-based gerrymandering should be acceptable at all, much less nationally. Lapse Section 5, for gods sakes.
September 6th, 2009 at 3:10 pm
Ever notice how Matt is much, much more comfortable discussing issues related to race in 1954 than in 2009?
Ever notice how … oh, what’s the use?
September 6th, 2009 at 5:25 pm
Matt on race is like the neocons on foreign policy. For the neocons, it’s always 1938 and the Holocaust looms unless we attack now! For Matt, it’s always 1953 or 1876 or something. It’s never, ever his own lifetime.
September 6th, 2009 at 7:15 pm
#15: It does not mention murder and rape either. I guess it makes them perfectly legal.
As others have pointed out, laws against murder and rape are for the most part done at the state level, not the federal level.
#18 So, you are of the opinion that a state can legalize murder, correct?
Well, technically, yes, a state should be able to legalize murder without the federal government stepping in. But it’s a ridiculous premise. No one ever felt a need to put something into the Constitution allowing the federal government to step in in such a case, because no state is going to legalize murder.
#18 (continued) For example, a state could pass a law stating that anyone whose first name starts with the latter A should be executed, and the SCOTUS should have no objection to it, is that what you’re saying?
A law that arbitrarily* legalized killing a particular class of people would violate the 14th amendment. The 8th amendment would have nothing to do with it. But the federal government would not, in theory, have the power to stop the state from legalizing murder in toto.
*There are justifiable non-arbitrary reasons to legalize killing, e.g. self-defense).
#34: I’m getting real tired of these literalist arguments that also seem to miraculously forget the ability of Congress to pass laws promoting the general welfare.
Which is irrelevant to the current debate, which is about whether or not the Supreme Court had the power to desegregate education; Congress’ ability to “promote the general welfare” has nothign to do with this, because no act of Congress was at issue.
September 6th, 2009 at 8:38 pm
The difference, Mr. Sailer, is that while Hitler and the Nazis are all dead, your lot continues to plague us.
September 6th, 2009 at 11:52 pm
The difference, Mr. Sailer, is that while Hitler and the Nazis are all dead, your lot continues to plague us.
The problem, Joe, as I see it, is that Grant didn’t put up a struggle when Phil Sheridan was transferred west to fight Indians, rather than hang traitors.
Sherman gets the press, but what Sheridan did to the Shenandoah makes even the march through So. Carolina look like a picnic.
Had he stayed in Texas, he would have provided a good model to the other military district commanders. Specifically, if any former good ole boys from Northern Virginia or Tennessee tried anything funny, he’d hang them higher than Haman.
That goes triple for one Mr. Forrest (undisputed military genius, but then, so was Walther Model). Considering how pissed off he made the old Grant crew during the war, it would have been great to see Sheridan have an excuse to put him on trial.
And I’d love to see the look on his face when Sheridan’s jury of freedmen gets to pass judgment on one of the worst slave owners in history.
September 7th, 2009 at 2:56 am
#37: What rubbish. The black people in the South, and their white Unionist allies, had no problem running a modern, liberal, free society and did it successfully for a decade or more. Their opponents made a conscious political decision to use violence to overthrow that ruling coalition.
I think you are whitewashing Reconstruction a fair bit, just as some try to whitewash the Confederacy.
You probably also believe that post-Apartheid South Africa is a successful, racially tolerant paradise.
September 7th, 2009 at 10:20 am
Greg,
Personally, I think we could have used malice towards a few more, and charity to fewer.
September 7th, 2009 at 10:45 am
I think you are whitewashing Reconstruction a fair bit, just as some try to whitewash the Confederacy.
You probably also believe that post-Apartheid South Africa is a successful, racially tolerant paradise.
Whatever other problems those two eras might have, they didn’t include slavery or a race and class-based apartheid system enforced by state and quasi-state terrorism.
Cleaning up the cultural damage done by generations of despotism takes generations of hard, self-aware effort.
A comparison of the American Civil War and the Boer War came up on Amazon the other day. The parallels, as I saw it, went like this:
The Boers, after being defeated on the battlefield, fought on as guerillas for three years. While they were beaten into impoverishment, they actually gained most of their objectives. After a few years, the British granted them autonomy, apartheid, and the peonage of the Black population in exchange for their peaceful integration into the larger polity.
The Southern secessionists, after being defeated on the battlefield, declined to fight on as guerillas. They avoided the level of devastation and impoverishment suffered by the Boers, but like them, eventually gained most of their objectives. After a few years, most of the Federal army had been removed from the South, so they started up a guerrilla campaign of terrorism and political subversion that avoided the Federal troops and instead attacked their local political opponents. Tired of war, the northern politicians granted the former secessionists autonomy, apartheid, and the peonage of the black population of the South in exchange for their peaceful integration into the larger polity.
There were restraints and motivations acting in the American Republican government quite different from those operating on the British imperial government, but both took actions corrupted by racism. The British sold out the African blacks to buy peace, the Americans sold out Southern blacks to buy peace, actions they might not have taken dealing with a white population.
In South Africa, official state regulation and police violence enforced racial separation. In the Southern United States, official racial oppression could not be as thorough because of the restraints of the Federal constitution, so the terrorist/guerrilla network of the original “Redemption” movement was kept in place as a shadow branch of government, providing enforcement in the form of intimidation, mob violence, beatings and lynchings, etc.
September 7th, 2009 at 10:49 am
I think you are whitewashing Reconstruction a fair bit, just as some try to whitewash the Confederacy.
Really, because I seem to remember two things about Reconstruction.
1. The defeated members of the Confederate Army put together one of the most vicious terrorist organizations in history, so awful that Congress passed an act explicitly condemning them and supporting Grant’s measures to do whatever necessary to break them.
2. In the 1860s, blacks represented no more than *their proportion* of the Southern population in Congress. And no one, except for the aforementioned bastards, thought this was a bad thing. In fact, there was one white congressman from Alabama, I believe, who married an ex-slave and continued to serve in his white-majority district.
We talk a lot about racial equality today. But I guarantee you that if a white guy, let alone a black guy, was part of an interracial marriage in the South today, he’d be more likely to be shot than elected to Congress.
There is *no* comparison between the whitewashing of the Confederacy and the revision of the “black legend” of Reconstruction. As He died to make men holy…
September 7th, 2009 at 10:51 am
Or, as Midland said.
September 7th, 2009 at 12:36 pm
Some municipalities singled out in the Act for their practices in the 1960s, are still required by law to receive federal permission for certain changes to election law or changes in venue.
People, not states, are guaranteed equal treatment under law. States are administrative entities, some of which must be treated differently under the law, and there is no constitutional redress for them, since states do not have any abstract claim to “equal rights” outside of what’s specifically outlined in the Constitution (eg, Senate representation).
From 1900 to 1970, the real power center of the hard right was the bloc of Southern Democrats in Congress.
One could argue that the southerns as the power brokers in Congress lasted right up through 2006, when a Democratic majority was elected for the first time that was not heavily weighted by numbers and seniority in favor of southerners.
September 7th, 2009 at 2:13 pm
Myles SG,
In 2000, over 40% of the population of Alabama voted against changing the state constitution articles prohibiting interracial sex and marriage.
I believe that’s good evidence as to why the federal government still needs to keep an eye on some of our Southern State. Racism is alive and well, particularly nowadays when it is fomented by professional racemongers like Mr. Steve Sailor from the pages of this very blog.