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[Abigail Thernstrom, guest-blogging, August 17, 2009 at 3:15am] Trackbacks
The Messy, Murky Voting Rights Act: A Primer.

First and foremost, much gratitude to Eugene Volokh for creating space for me on his splendid, indispensable blog.

Voting Rights — and Wrongs is my second effort to understand a statute that has become, in the words of Richard Pildes, "one of the most ambitious legislative efforts in the world to define the appropriate balance between the political representation of majorities and minorities in the design of democratic institutions."

Defining that appropriate balance was not the original aim of the 1965 Voting Rights Act. Its initial purpose was simple: enfranchising southern blacks ninety-five years after the passage of the Fifteenth Amendment.

The statute has become such an eye glazing mess that it's easy to forget that in 1965 it was beautifully designed and absolutely essential. Southern blacks were still kept from the polls by fraudulent literacy tests, intimidation, and violence.

Black ballots had been the levers of change that white supremacists most feared, and they were not prepared to go quietly into the night. Enforcing Fifteenth Amendment rights thus required overwhelming federal power — radical legislation that involved an unprecedented intrusion of federal authority into state and local election affairs.

In this first post, I provide a little guide to that radical (and confusing) legislation.

The act put southern states under the equivalent of federal receivership in the conduct of their elections. It suspended literacy tests throughout the region. It provided for the use of federal registrars where necessary. And it demanded that racially suspect jurisdictions submit all proposed changes in their methods of election to the Justice Department (or the seldom-used D.C. district court) for pre-approval — "preclearance." A statistical trigger that had been reverse-engineered identified the "covered" jurisdictions; the framers of the act knew which states should be covered and arrived at the proper formula.

In states and counties covered by section 5 — initially all in the South — the burden of proving that changes in voting procedure were free of racial animus was placed on them. A city, for instance, that submitted for preclearance a proposed enlargement of its governing council had to prove a negative, an absence of discriminatory purpose or effect. Suspected discrimination was sufficient to sink a proposed change.

The provision compelled states to "beg federal authorities to approve their policies," and thus so distorted our constitutional structure as to almost erase the distinction between federal and state power, Justice Hugo Black complained in 1966 when the Supreme Court upheld the constitutionality of the statute.

It was a constitutionally serious point, and should not have been forgotten in later years. At the time, however, all other attempts to secure Fifteenth Amendment rights had failed. That, too, is a point that needs to be remembered.

The act very quickly succeeded in meeting its original aim. Southern black registration skyrocketed. But ensuring black electoral equality was more difficult than originally understood. In Mississippi and elsewhere, counties and other political subdivisions began to structure elections to minimize the number of blacks likely to win public office.

In the face of racist maneuvers to maintain white supremacy, in 1969 the Supreme Court expanded the definition of discriminatory voting practices to include devices that "diluted" the impact of the black vote. At-large voting, districting lines, and other election procedures whose impact could deprive blacks of expected gains in officeholding became subject to preclearance.

The Court had put the enforcement of the act on a proverbial slippery slope. Ensuring that black ballots carried proper political weight became the expanded goal of the act. From there it was but a short slide to a constitutionally problematic system of reserved seats for minority group members, even in settings with no history of racist exclusion.

And from there, with another short slide, proportional racial and ethnic representation became the only logical standard by which to measure true electoral opportunity. Anything less than proportional officeholding suggested a "diluted" minority vote — one that was less effective than it could be.

In any case, civil rights advocates saw proportional results as the proper measure of opportunity — in employment, education, and contracting, too — and those who wrote, interpreted, and enforced the law consistently took their cues from these advocates.

Thus, when the Justice Department rejected a districting map as racially suspect, the jurisdiction was obligated to go back to the drawing board. New lines had to be drawn, with the understanding that the maximum number of possible safe black legislative seats would be created.

The original statute was altered in other important respects. Section 5 was an emergency provision with an expected life of only five years. It was repeatedly renewed, most recently in 2006 for another quarter century.

Every renewal became an occasion for amendments that strengthened the act; never did Congress stop to consider whether the statute's unprecedented powers should, in fact, be pared back in recognition of its success. Thus, as black political participation was steadily and dramatically rising, federal power over local and state electoral affairs was paradoxically expanding.

In 1970 and 1975, new groups and new places came under preclearance coverage. An arbitrary, careless change in the statistical trigger, for instance, made section 5 applicable to three boroughs in New York City (although not the other two), even though black New Yorkers had been freely voting since the enactment of the Fifteenth Amendment in 1870, and had held municipal offices for decades.

In 1975, amendments added Hispanics, Asian Americans, American Indians, and Alaskan Natives to the list of those eligible for extraordinary protection, although their experience with racist exclusion from the polls was not remotely comparable to that of southern blacks.

With more mindless changes to the statistical trigger, preclearance was also extended to Texas, Arizona, Alaska, and scattered counties in California and elsewhere across the nation.

In 1982, Congress rewrote an innocuous preamble, section 2. Preclearance kicked in only when a jurisdiction altered some aspect of electoral procedure. But, as amended, section 2 provided plaintiffs with a powerful tool to attack long-standing methods of election anywhere in the nation that had the "result" of denying the right to vote on account of race or color.

Section 5 had provided a remedy for vote dilution only relative to the electoral strength that blacks and Hispanics enjoyed before a jurisdiction altered a districting map or other voting practices, the Supreme Court held in 1976. It was an interpretation that squared with the structure of the Voting Rights Act, and delegated to Justice Department attorneys and staff remote from the scene a limited, and thus manageable, task: stopping the institution of new electoral arrangements that undermined the force of the 1965 law.

But section 2 guaranteed electoral equality in some absolute sense — undefined and indefinable. The obvious solution, once again, was to resort to proportionality as the standard by which to measure of racial fairness, even though it rests on a profound misconception of the "natural" distribution of racial and ethnic groups across the residential, occupational, and other aspects of the social landscape.

Moreover, racist exclusion, not statistical imbalance, should have been the concern.

At the same time, race-conscious districting brought real gains in political integration — gains that cannot be easily dismissed. But this is the topic of the next post.

J. Aldridge:
Defining that appropriate balance was not the original aim of the 1965 Voting Rights Act. Its initial purpose was simple: enfranchising southern blacks ninety-five years after the passage of the Fifteenth Amendment.

The problem there is the Fifteenth Amendment has nothing to do with enfranchising blacks. The power over the elective franchise remained with the states after the Fifteenth Amendment had been adopted by deliberate design. If blacks could qualify to vote they could not be denied on account of race, color, or previous condition of servitude was the only right they could claim. Here is what the framers and congress said of the Fifteenth Amendment:

Sen. Jacob Howard:

So far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars' worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars' worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil. …

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects.

Sen. Lyman Trumbull, Chairman of the Senate Judiciary:

[A]ny State may require a property qualification, may require an educational test, may impose such conditions upon voting as it thinks proper, so they are uniform on all classes of citizens. That power has not been taken away from the States. The only power that has been taken away from them is the authority to discriminate on account of race, color, or previous condition.


House Judiciary Committee describing the intent and meaning of the Fifteenth Amendment in House Report No. 22, January 30, 1871 (report approved 8-2):

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein "on account of race, color, or previous condition of servitude." The adoption of the Fifteenth Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein.

The limitations specified in the Fifteenth Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law, which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude.



"When Georgia's representation is officially restored by the very letter of your reconstruction acts, all colorable excuses for imposing any civil or political conditions upon her shall no longer exist." (John Bingham, June 24, 1870)
8.17.2009 5:43am
Soronel Haetir (mail):
I find your statement about Alaska interesting as well. Given the documented actions of BIA agents preventing candidates from visiting many villages and other interferences in the voting process I fail to see how the problem wasn't entirely as pervasive. Even worse, in Alaska the infringers were often federal employees rather than state agents, though just like the South much of it was to hold on to personal power bases.

JA:

Lots of what you quote would have been fine at the time of Reconstruction but was only later made unconstitutional by the prohibition on poll taxes. I do find it interesting that the ban on literacy tests survived court challenge, given that there is no constitutional ban on such practices. I do not find it surprising at all that the tests that were actually administered were struck down however.
8.17.2009 8:17am
PeteP:
50 years ago, there was a need for correction in the system, which excluded blacks in many areas.

Sadly, our fearless leaders chose the bluntest instrument possible, a quota system called 'minority majority districting', to acheive their results-driven agenda.

Manipulating voting districts on the basis of race is a most blatant form of fundamental racism, in that it is based on the assumption 'all black people will vote for the black guy'. What more obvious example of 'making assumptions about people based on race' could you find ? And that is the heart of racism.

Further, it is on topic to note that there is a major powerful organization that restricts membership based soley on skin color. What , you say ? You thought that was illegal ? Not if you're the Congressional Black Caucus. The membership requirement is clear - you must have black skin. It is not based on 'the majority makeup of the district you represent', as one white Congressman found out recently when he tried to join. He was elected in a 'majority black district', so he felt obligated to represent the interests his constituents by joining the CBC. He was told, oficially, in writing 'Sorry, you're white, you can not join, regardless of the fact that you represent a black district'.

Today, no one raises an eyebrow if a black person is elected in a 'majority white' district. As long as our society includes such entrenched legalized racist devices and institutions as 'racial gerrymandering', the CBC, etc, which are based soley on racist assumptions about both blacks and whites, this country will never be, by definition CAN never be, color blind.
8.17.2009 8:43am
byomtov (mail):
So let's see. Lack of property or literacy was sufficient grounds to deny the right to vote even in the face of the 15th Amendment, because they obviously had nothing to do with "previous condition of servitude." Maybe Howard and Trumbull, among many others, needed to think a little more deeply about that.

the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread.
8.17.2009 8:55am
PatHMV (mail) (www):
Soronel, the 15th Amendment expressly gave Congress the power to enforce it. I think it is well within Congress' discretion to determine that every state using literacy tests was in fact using them as a proxy for race, and applying the tests in a racially biased manner. The widespread use of such practices, Congress could quite rationally decide, necessitated a wholesale ban, rather than, say, sticking federal poll watchers to observe the uniform application of the literacy test to all voters.
8.17.2009 10:08am
MarkField (mail):
Let me make sure I'm understanding your argument. I'm combining the two posts because there's some problem with the later one and the comment box isn't open.

As I understand what you're saying, it is that the Constitution expressly provides that race shall not be a hindrance to voting. Congress -- finally! -- passed a statute to enforce that provision. Thereafter, people continued to try to hinder blacks from voting by clever dodges of the enforcement statute. And your claim is that the attempts to put an end to the continued resistance to black voting rights are the real problem?
8.17.2009 10:23am
Soronel Haetir (mail):
Pat,

Sorry, on this score I actually have to agree with J. Aldridge, there was simply enough history of voting limitations being acceptable that I don't see the 15th embodying some broad principal that such limitations are verboten. I do agree that he completely overlooks the ban on poll taxes, but that is a separate issue.
8.17.2009 10:28am
Steve:
Does anyone actually propose to return to the "original intent" (not sure we can even call it original understanding) of the Fifteenth Amendment, whereby literacy tests and such would be legal? Justice Scalia? Justice Thomas?
8.17.2009 10:39am
PatHMV (mail) (www):
Soronel, so you would hold that Congress' (not the Court's) express authority to enforce the 15th Amendment is not sufficiently broad to decide that literacy tests, under the real facts existing in the country at that time, should be banned?

Remember, we're not talking here about the COURT deciding that literacy tests are unconstitutional. There, I would agree with you. But here, we're talking about an express power granted to Congress, and its exercise of that power (and all powers necessary and proper thereto, of course). Big difference.
8.17.2009 10:40am
PatHMV (mail) (www):
Steve... see my last post. It's not the Court that banned literacy tests in general; Congress did. The Courts quite properly, of course, struck down the discriminatory use of literacy tests (in most places in the South, the tests were administered ONLY to black people). If the Court tried to declare fairly administered, objective literacy tests in general unconstitutional, then I might tend to agree that the 15th Amendment does not give the Court sufficient authority to do so. But since Congress has banned literacy tests (relying on several of its powers, not just the power to enforce the 15th Amendment), we're not faced with that situation.
8.17.2009 10:44am
PatHMV (mail) (www):
MarkField. I don't think the poster is saying that at all. Rather, she seems to be saying, quite clearly, that the statutes subtly shifted from guaranteeing equality of opportunity (the right to participate freely in all elections) with equality of result (the right to have the racial results of the elections resemble the racial distribution in the population).
8.17.2009 10:46am
Steve:
Steve... see my last post. It's not the Court that banned literacy tests in general; Congress did.

Well, I might agree that the Fifteenth Amendment gives Congress very broad remedial powers, but there are plenty of people who don't agree with me, or else the recent Voting Rights Act case wouldn't have been so suspenseful.
8.17.2009 10:49am
David M. Nieporent (www):
As I understand what you're saying, it is that the Constitution expressly provides that race shall not be a hindrance to voting. Congress -- finally! -- passed a statute to enforce that provision. Thereafter, people continued to try to hinder blacks from voting by clever dodges of the enforcement statute. And your claim is that the attempts to put an end to the continued resistance to black voting rights are the real problem?
Let me make sure I'm understanding your argument. As I understand what you're saying, it's that if a law was well-intentioned, were trying to stop something bad, it doesn't matter what it actually does, how it operates, or whether it's still needed.

The VRA, of course, is not limited to "resistance to black voting rights." For one thing, its sweep, like too many modern 'civil rights' laws, is unrelated to intent. Facially neutral policies enacted without discriminatory intent (e.g., 'disparate impact') are covered also. Perhaps more importantly, the VRA's current interpretation has nothing to do with black people (or other minorities) being allowed to vote, but has to do with black politicians getting elected.
8.17.2009 10:54am
David M. Nieporent (www):
Well, I might agree that the Fifteenth Amendment gives Congress very broad remedial powers, but there are plenty of people who don't agree with me, or else the recent Voting Rights Act case wouldn't have been so suspenseful.
Obviously the 24th amendment is a sign that many people thought that Congress's remedial powers weren't quite as broad as all that. After all, under the most expansive interpretation of the 15th amendment, poll taxes could be outlawed without constitutional amendment.
8.17.2009 10:57am
Soronel Haetir (mail):
Pat,

I would in fact say that Congress' powers are not that broad. Broad enough to ensure that if a literacy test is used that it must be applied equally, yes. But not so broad as to classify such tests as a forbidden proxy, no matter what the use of such tests produced. Of course, I also believe that most public accomidation law is also unconstitutional, so I don't expect to convince many people.
8.17.2009 10:59am
Steve:
Obviously the 24th amendment is a sign that many people thought that Congress's remedial powers weren't quite as broad as all that. After all, under the most expansive interpretation of the 15th amendment, poll taxes could be outlawed without constitutional amendment.

I don't agree that the proposal of a constitutional amendment equates to some kind of concession that the same objective could not be accomplished through legislation.
8.17.2009 11:15am
MarkField (mail):

MarkField. I don't think the poster is saying that at all. Rather, she seems to be saying, quite clearly, that the statutes subtly shifted from guaranteeing equality of opportunity (the right to participate freely in all elections) with equality of result (the right to have the racial results of the elections resemble the racial distribution in the population).


Perhaps I'm being too skeptical. It reads to me like a classic "blame the victim" post. But you're right -- I should wait for the remedies before I reach that conclusion.

As for equality of result, I think it's important in assessing this to consider that representative democracy operates on 2 levels. One is the level of elections, which is what the post seems to be focused on. But the other is the one where actual governance takes place, i.e., Congress. The purpose of an election is to give us a Congress which, withink reasonable limits, mirrors the electorate. Thus, equality of result at the electoral level isn't necessarily a problem AFAIC.

Moreover, if elections were truly colorblind, then we'd expect something quite close to equality of result. Or maybe, more precisely, we would not expect to see systemic bias. The actual outcomes thus serve as a check on the fairness of the system.


The VRA, of course, is not limited to "resistance to black voting rights." For one thing, its sweep, like too many modern 'civil rights' laws, is unrelated to intent. Facially neutral policies enacted without discriminatory intent (e.g., 'disparate impact') are covered also. Perhaps more importantly, the VRA's current interpretation has nothing to do with black people (or other minorities) being allowed to vote, but has to do with black politicians getting elected.


See above.
8.17.2009 11:19am
Soronel Haetir (mail):
Steve,

Since the amendment process is so much more difficult than straight legislation that is pretty much exactly how I view the process. There is another possibility, that of entrenching some change beyond the ability of the opposition to negate easily, but few enough amendments have been ratified that I don't see that being realistic.

Why go to the trouble of amendment if you already have to power to do whatever it is that you are after? Legislative inertia is such that your changes are unlikely to be repealed anyway.
8.17.2009 11:22am
SuperSkeptic (mail):
Ms. Thernstrom says:

The Court had put the enforcement of the act on a proverbial slippery slope. Ensuring that black ballots carried proper political weight became the expanded goal of the act. From there it was but a short slide to a constitutionally problematic system of reserved seats for minority group members, even in settings with no history of racist exclusion.

And from there, with another short slide, proportional racial and ethnic representation became the only logical standard by which to measure true electoral opportunity. Anything less than proportional officeholding suggested a "diluted" minority vote — one that was less effective than it could be.

In any case, civil rights advocates saw proportional results as the proper measure of opportunity — in employment, education, and contracting, too — and those who wrote, interpreted, and enforced the law consistently took their cues from these advocates.
(emphasis added)

and:

But section 2 guaranteed electoral equality in some absolute sense — undefined and indefinable. The obvious solution, once again, was to resort to proportionality as the standard by which to measure of racial fairness, even though it rests on a profound misconception of the "natural" distribution of racial and ethnic groups across the residential, occupational, and other aspects of the social landscape.


She acknowledges the (necessarily limited) good done by the statute, but the problem (must I even say "as usual" when congress or government intervenes) comes with the unintended consequences to the fundamental or baseline positions and assumptions that undergird race debate and policy. We are now stuck with the logic of quotas and proportional divying-of-the-spoils - in so many areas. (This was the ideological heart of and the division in the Ricci decision).

One side refuses to acknowledge this while debasing any attempts at a "colorblind" society as mythical reactionary racism, (which, arguably it is mythical, just like the "rule of law" is mythical in a sense; but yet are they both not desirable ideals?).

The other side would do well to acknowledge that racism still exists (albeit to a lesser extent) and will continue to exist even if colorblind rules were to apply. Giving credit to attempts to cure it by these antiquated, insufficient methods, as Ms. Thernstrom does, is good because it points to how they've helped - to that extent and no farther - while also highlighting the shortcomings, which I believe to be ideological. The important point is to show how purer principles will lead to the eradication of it and to full, real equality sooner.
8.17.2009 11:26am
Steve:
So all those state constitutional amendments prohibiting gay marriage are admissions that the states don't have the power to ban gay marriage legislatively? No, not really.

Without more, the proposal of a constitutional amendment simply indicates a concern that the constitutionality of legislation wouldn't be 100% certain, or perhaps just a desire to make the result more durable.
8.17.2009 11:27am
einhverfr (mail) (www):

Moreover, racist exclusion, not statistical imbalance, should have been the concern.


This seems clear in retrospect, but when we look back at developing jurisprudence of civil rights law and the problem that 14th amendment rights had also proved elusive for blacks, I think the concern was justified whether or not the decision was.

For example, one had the stark fact that although Plessy v. Fergusson had stated that the state was required to provide equal accommodation regardless of race, state and local governments were using such a standard to build infrastructures of discrimination. These were, of course, major problems and I think the court saw such limited interpretations as unworkable at the time.

Some of these things don't get into opinions, but often one can see overriding legal concerns a court addresses across issues regardless of precedent.
8.17.2009 11:29am
SuperSkeptic (mail):
Moreover, if elections were truly colorblind, then we'd expect something quite close to equality of result. Or maybe, more precisely, we would not expect to see systemic bias. The actual outcomes thus serve as a check on the fairness of the system. (emphasis added)

MarkField,
This is what I see as the fallacy of the current ideological assumptions. There is no reason to assume this. Moreover, the only way to judge "systemic bias" is through the same disproven lens.
8.17.2009 11:33am
Soronel Haetir (mail):
SuperSkeptic,

One tangent to your post, I'm not certain that private racism is an ill that government should even address. Certainly government should be blind to such factors, but I'm not at all certain that applying such rules to private interaction is a good thing.

Let other private interaction, boycotts etc find the equilibrium.
8.17.2009 11:33am
PatHMV (mail) (www):
SuperSkeptic said:
The other side would do well to acknowledge that racism still exists (albeit to a lesser extent) and will continue to exist even if colorblind rules were to apply. Giving credit to attempts to cure it by these antiquated, insufficient methods, as Ms. Thernstrom does, is good because it points to how they've helped - to that extent and no farther - while also highlighting the shortcomings, which I believe to be ideological. The important point is to show how purer principles will lead to the eradication of it and to full, real equality sooner.

Exactly. Well said.

Moreover, what is often missing in these debates (and I think the original poster is providing a valuable service in bringing it up) is the idea that at various times, some types of evil may be so great that some type of intervention may be necessary of a sort which we would not and should not tolerate in other times, or to combat other ills. At the time, the 1964 Civil Rights Act was needed. The evils of racial discrimination were doing terrible damage both to individuals and to our society as a whole. Thus, at the time, it was necessary to curtail, for example, the rights of individual business owners to decide who they would and would not serve, should they exercise that choice is racially discriminatory ways. Why? Because, among other things, the cumulative impact of all those racially discriminatory practices (along with vicious sheriffs, etc.) was infringing on the ability of black people to exercise a whole slew of their own rights, including the right to interstate travel, the right to vote, etc.

Now that the worst forms of discrimination have largely passed away, it is indeed time to start revisiting some of the decisions made back then. This is not because of any desire to return to the past, but because they have largely served their purpose, and society has changed sufficiently that other forms of action, less intrusive on the rights of others, will help ensure the equal rights of all.
8.17.2009 11:41am
SuperSkeptic (mail):
For example, one had the stark fact that although Plessy v. Fergusson had stated that the state was required to provide equal accommodation regardless of race, state and local governments were using such a standard to build infrastructures of discrimination.

This is all the more reason to support a principled eradication of distinctions based on race then as now. As long as distinctions remain, they can be used and abused to perpetuate the racial divide, to the advantage of the few, and to the disadvantage of the very very many.

In retrospect, we may appreciate the gains to this point, but I would argue that X years from now, in retrospect, we may appreciate the accelarated gains that come from truer foundational principles of equality.

Half-measures with inadequate principles will continue to spawn half-gains and the other half unintended consequences perpetuating ills for the entire half-life of the issue...
8.17.2009 11:44am
SuperSkeptic (mail):
Let other private interaction, boycotts etc find the equilibrium.

Very much agreed.
8.17.2009 11:47am
Soronel Haetir (mail):
Pat,

I would argue that the private actions would not have been possible without government backing. So I don't see the evil as being as great as you wish it to be.
8.17.2009 11:50am
David M. Nieporent (www):
So all those state constitutional amendments prohibiting gay marriage are admissions that the states don't have the power to ban gay marriage legislatively? No, not really.
Yes, really; they're admissions that they think the courts will rule that way.
8.17.2009 11:51am
SuperSkeptic (mail):
Pat,

I agree with your approach:

Now that the worst forms of discrimination have largely passed away, it is indeed time to start revisiting some of the decisions made back then. This is not because of any desire to return to the past...

But:

the idea that at various times, some types of evil may be so great that some type of intervention may be necessary of a sort which we would not and should not tolerate in other times, or to combat other ills.

This may be true, but as my previous comment on plessy shows, I'm (fortunately or unfortunately) too radical to accept such a reality.
8.17.2009 11:56am
MarkField (mail):

This is what I see as the fallacy of the current ideological assumptions. There is no reason to assume this.


Why not? In your response, note that I'm not suggesting that perfect equality has to result. But if the composition of the House shows extremely wide disparities from the composition of the nation as a whole, and those disparities aren't temporary, then it's worth asking if this result isn't a data point that we should be considering.
8.17.2009 12:16pm
PatHMV (mail) (www):
SuperSkeptic... Every now and then I fantasize that the Plessy Court had ruled the other way, holding that racial segregation could never, by its very nature, be "equal" in any sense. I think we'd be in such a better place by now.

Alas, the Court decided to reach a "political" result rather than one based on the Constitution and its Amendments, and so racial discrimination in the law was perpetuated for several generations longer than it should have been.
8.17.2009 12:17pm
PatHMV (mail) (www):
As to your radicalness, I'll simply say that the Constitution is not a suicide pact. If there is a wide-spread evil which is rending our country in two, and legislation has a realistic chance at limiting that evil, then barring outright, clear, and direct violation of the text of the Constitution, I'm willing to look for a way to find that Congress has the power to act against that deep evil.
8.17.2009 12:21pm
Repeal 16-17 (mail):
Every now and then I fantasize that the Plessy Court had ruled the other way, holding that racial segregation could never, by its very nature, be "equal" in any sense. I think we'd be in such a better place by now.


Back in 1896, who would have enforced such a decision? Clearly, the South would have been even less tolerant of such a decision than it was of Brown. Plessy was the SCOTUS wussing out, because it felt that any decision which was faithful to the Reconstruction Amendments would have been ignored.
8.17.2009 12:38pm
einhverfr (mail) (www):

Back in 1896, who would have enforced such a decision? Clearly, the South would have been even less tolerant of such a decision than it was of Brown. Plessy was the SCOTUS wussing out, because it felt that any decision which was faithful to the Reconstruction Amendments would have been ignored.


One thought I frequently bring up:

Brown is to Plessy, what Casey is to Roe. Both cases in each set held the exact same Constitutional rights existed, but the later case in each set held the previous test to be unworkable in practice and fundamentally changed the approach of the courts to an issue. Whether or not a decision overrules past precedent is often as much a matter of perspective as it is actual fact.

Personally, I think the Plessy to Brown progression shows the courts at their best, starting with minimal rulings and issuing more invasive ones only as it becomes fundamentally clear that minimal rulings are not working. While it might be nice to fantasize about a supremely wise and active judiciary, the actual implementation of such an ideal exists to my knowledge only in Iran, which suggest it is not the model we really want.
8.17.2009 1:21pm
Tritium (mail):
LOL, you guys and your conspiracy theories.
8.17.2009 1:44pm
J. Aldridge:
Soronel Haetir,

I don't see how "poll taxes" changed anything in regards to educational, property or literacy qualifications.
8.17.2009 1:52pm
Abdul Abulbul Amir (mail):


Let us not forget that Republican administrations were more than happy to stuff as many black voters into a district as possible so as to make the rest of the districts more Republican.

Frankly, it would seem that one district that is 100% black and two that are 100% white diminishes black voting power compared three distrucis that are each 33% black.
8.17.2009 2:05pm
J. Aldridge:
Every now and then I fantasize that the Plessy Court had ruled the other way, holding that racial segregation could never, by its very nature, be "equal" in any sense. I think we'd be in such a better place by now.


But that would had been misreading how the "equal protection of the laws" have been applied in England and in this country. The words "nor deny to any person within its jurisdiction the equal protection of the laws," is the words of the 40th chapter of the Magna Carta, said Bingham a half dozen times before and after the adoption of the amendment.
8.17.2009 2:10pm
David M. Nieporent (www):
Here is what the framers and congress said of the Fifteenth Amendment:
So what?
8.17.2009 2:20pm
PatHMV (mail) (www):
Abdul... I agree with you that 3 districts which are 33% black would generally (presuming such is the result of a normal, geographically compact district not drawn with racial lines in mind) be better and provide greater black voting power than segregating blacks into their own districts.

I'm not sure how you blame Republicans for that, though.
8.17.2009 2:43pm
Ken Arromdee:
Moreover, what is often missing in these debates (and I think the original poster is providing a valuable service in bringing it up) is the idea that at various times, some types of evil may be so great that some type of intervention may be necessary of a sort which we would not and should not tolerate in other times, or to combat other ills.

This reasoning would justify the Japanese-American internment. (And has often been used to do so.)
8.17.2009 2:45pm
PatHMV (mail) (www):
Yep. Sometimes good arguments can be used to support bad policies.
8.17.2009 2:56pm
SuperSkeptic (mail):
Hence my absolutism in opposition to any liberty restriction to counter even temporary evils
8.17.2009 3:02pm
keithwaters (mail):
Could we get away from ever again using the term "civil rights advocates?" Does this mean anyone against the policies of the NAALCP is a Klan advocate?
8.17.2009 3:04pm
Soronel Haetir (mail):
J. Aldridge,

In case you didn't notice I have been arguing that Congress overstepped its authority in banning literacy tests so long as those tests were actually applied in a race neutral manner.

Given how rarely people here agree with you on anything I would have thought you would be more attuned to those rare instances of alignment.
8.17.2009 3:33pm
J. Aldridge:
In case you didn't notice I have been arguing that Congress overstepped its authority in banning literacy tests so long as those tests were actually applied in a race neutral manner.

Thought you were arguing the 24th amendment allowed them to overstep their authority?
8.17.2009 3:50pm
Soronel Haetir (mail):
I do see property ownership requirements as falling within the ambit of prohibition of poll taxes, though not long duration residency requirements as another example I believe should still be a valid basis for restricting the franchise.

I brought up literacy tests because that was a specific example I argued against being constitutionally suspect earlier.
8.17.2009 4:06pm
David M. Nieporent (www):
Abdul... I agree with you that 3 districts which are 33% black would generally (presuming such is the result of a normal, geographically compact district not drawn with racial lines in mind) be better and provide greater black voting power than segregating blacks into their own districts.

I'm not sure how you blame Republicans for that, though.
Republicans and black Democrats entered into an informal, cynical deal starting in the late 80s or so, that they would agree to maximize black membership in Congress through redistricting. Black Democratic congressmen were given absolutely 100% safe districts, and since blacks are virtually all Democrats, this had the effect of taking Democrats out of marginal districts, making them more solidly Republican.
8.17.2009 4:09pm
David M. Nieporent (www):
In case you didn't notice I have been arguing that Congress overstepped its authority in banning literacy tests so long as those tests were actually applied in a race neutral manner.
Yeah, but that's like banning horses from a restaurant unless those horses are unicorns. The raison d'etre of literacy tests was to disenfranchise blacks. There were none applied in a race-neutral manner, and nobody had any interest in applying them in a race-neutral manner. Congress isn't required to pretend that some unicorns may exist somewhere in order to pass a law.
8.17.2009 4:13pm
Soronel Haetir (mail):
David M. Nieporent,

Just because those jurisdictions would have dropped the tests if forced to administer them fairly should not be seen as reason to give Congress the power to force the localities to stop using tests.

Congress has the power to enforce the 15th so far as a political unit were to qualify voting based on race or pretext for race. A fairly administered literacy test would not be such a pretext.
8.17.2009 5:03pm
PatHMV (mail) (www):
Soronel, David's point is that it is permissible for Congress to decide that, since every single known instance of literacy tests, at that point in time, were pretexts, it was appropriate to ban the entire practice, period, rather than to require exhaustive, case-by-case examinations of the practices at each of the tens of thousands of voting locations (or registrars of voters) to determine whether that particular test was being administered in a racially discriminatory manner.

To get rid of pretextual literacy tests under your analysis, suit would have to be brought against each unit of government allegedly discriminating on the basis of race in their implementation of the literacy test. Witnesses would have to be called, testimony taken, records studied. At every single location.

Congress has more leeway to act than that, because that would not, in fact, stop the problem any time soon.
8.17.2009 5:49pm
geokstr (mail):

David M. Nieporent:

I'm not sure how you blame Republicans for that, though.

Republicans and black Democrats entered into an informal, cynical deal starting in the late 80s or so, that they would agree to maximize black membership in Congress through redistricting. Black Democratic congressmen were given absolutely 100% safe districts, and since blacks are virtually all Democrats, this had the effect of taking Democrats out of marginal districts, making them more solidly Republican.

Can you please provide a link to something more definitive about this "informal, cynical deal" you're claiming occured other than your currently unsupported contention? I recall the furor about the bizarre gerrymandering of majority black districts around that time but I don't think the criticism was coming from the left.
8.17.2009 5:58pm
MarkField (mail):
DMN's description of how some racial gerrymandering occurs is accurate AFAIK. I thought it was non-controversial that this was happening (not non-controversial in the sense that it was/is a good thing, just the simple fact that he accurately described the way it happened(s)).
8.17.2009 8:58pm
byomtov (mail):
Yeah, but that's like banning horses from a restaurant unless those horses are unicorns. The raison d'etre of literacy tests was to disenfranchise blacks. There were none applied in a race-neutral manner, and nobody had any interest in applying them in a race-neutral manner. Congress isn't required to pretend that some unicorns may exist somewhere in order to pass a law.

Exactly right. At some point you put your foot down and say, "Stop the BS. Period."
8.17.2009 9:14pm
Eli Rabett (www):
Don't work on the Intertubes
8.17.2009 9:49pm

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