Balkinization  

Tuesday, December 29, 2015

Recovering Reconstruction

Gerard N. Magliocca

To build on Mark's post, I want to point out that there are significant obstacles for lawyers who are inclined to interpret Reconstruction broadly (or just correctly), let alone for those who aren't.

First, there are no detailed notes on the discussions of the Joint Committee on Reconstruction, which was created 150 years ago this month. While Madison's Notes on the Constitutional Convention are flawed (for example, they were not published until long after the fact and were revised substantially by him after 1789), at least we have some sort of record of what was said in Philadelphia.  For the Joint Committee, by contrast, we have only a journal with bare-bones minutes.  Imagine how much constitutional debate would have been enriched if we knew how John Bingham, Thaddeus Stevens, and the others on what amounted to the Second Constitutional Convention said behind closed doors.

Second, there is no Federalist Papers for Reconstruction.  Bingham and Stevens never had the time (or probably the motivation) to write a series of detailed essays defending and explaining their work.  Courts and lawyers, though, often need this sort of explication to understand the context of the text that they are required to apply.

Third, there is no equivalent of Farrand's Records on the Reconstruction Amendments.  Good luck trying to find a single source that nicely organizes the debates of the Thirty-Ninth Congress, the ratification debates in the states, or the public statements and private letters of those Founders.

There's nothing that we can do about the first two problems, short of a miraculous discovery of a lost manuscript, but we can address the last problem.  Perhaps the best way to honor Reconstruction on its sesquicentennial is to start creating a definitive collection of its primary sources.  This is not a sexy task and is probably too much to ask of one person, but we would all benefit from such an edition.

Comments:

I think the suggestion about primary sources is excellent. The most important objective is to accomplish what Gerard Magliocca notes: that the Reconstruction Congress was a second Constitutional Convention. There is excellent work to recognize. Gary Wills on the Gettysburg Address has spawned - left and right - a body of work recognizing Reconstruction, the 13th, 14th, and 15TH, as a re-founding based on the Declaration.
W.E.B. DuBois Black Reconstruction demonstrates the widely underestimated slave rebellion elements of the Union victory. That makes clear the public meaning of Reconstruction and the Post-war amendments: the equalization of the condition of African Americans. The travesty of current Supreme Court thinking is the conceptual debacle: that equal protection permits only race conscious remedies tied to a particular finding of intentional racial discrimination; and the delegitimization (see Milliken) of anything but remedies closely tied to particularized findings of intentional racial discrimination.
 

Re "a definitive collection of its primary sources": for Bingham, see the Guide to Research Collections at http://bioguide.congress.gov/scripts/guidedisplay.pl?index=B000471.

For Stevens, see the Guide to Research Collections at http://bioguide.congress.gov/scripts/guidedisplay.pl?index=S000887.
 

Let's not beat around the bush here. The problem with using the Reconstruction era as a guide to constitutional interpretation isn't a lack of good records.

The essential problem with taking Reconstruction era practices as a guide to how to interpret amendments 13-15, is that during reconstruction for all intents and purposes we didn't have constitutional government. Half the country was under military rule, amendments to the Constitution were being ratified at gun point, elections weren't free and honest...

Sure, it was mostly in a good cause, and I'm not being sarcastic about that. But are the practices from a time like that a proper guide to how the Constitution should be interpreted in a peaceful country with civilian rule? I don't think so.

Maybe if we have another civil war, and half the nation conquers the other half, we might look to Reconstruction as a guide to how to manage the aftermath while the winners subdue the losers. It is NOT a proper guide to how a free and peaceful country should conduct it's affairs 150 years after such a war.

So, no, we're not going to interpret the 13th amendment the way a government of occupation ruling at gun point over a population not permitted free and fair elections did. We're going to read the words and see how they can be applied in a time of normal constitutional order. Be glad we don't demand that they be ratified all over again, honestly this time. By all rights that's what ought to happen.

Seriously? Have you thought through what it means to advocate Reconstruction era practices?
 

My hope is that Volume 6ish of the Complete American Constitutionalism will have an extensive collection of documents and debates on the post-Civil War Amendments and various statutes passed under those amendments. This presumes I get my act together and finish Volume 2.
 

Brett shows his true colors with his not beating around the bush:

"So, no, we're not going to interpret the 13th amendment the way a government of occupation ruling at gun point over a population not permitted free and fair elections did. We're going to read the words and see how they can be applied in a time of normal constitutional order. Be glad we don't demand that they be ratified all over again, honestly this time. By all rights that's what ought to happen."

Consider how, pre-Civil War, the Constitution was interpreted/construed with respect to slaves/slavery despite no specific references in that Constitution of slaves/slavery. And Brett professes not to be sarcastic - actually he's quite open on his views of African-Americans. Slaves had no say in the 1787 Constitution; neither did Native Americans and women. So maybe we should go back to those Constitutions Convention days for a redo, as he suggests with the Reconstruction Amendments. While it seems likely that Brett would prefer to see the 13th and 15th As not ratified on a redo, it's not clear what his views would be on the 14th A. And Brett would seem sympathetic to Jim Crow laws post-Reconstruction.

Maybe originalists will jump in on how to interpret the 13th A. Also, does Mark's post on the Roberts Court suggest support for Brett's views by conservatives on the Court? And all this because of the changing demographics? Might a redo of the Reconstruction As change this change? Is that the Trump card?
 

Brett: constitutions are not written and rewritten in normal times but in conditions of deep political trauma and crisis. They are the last place you will find dispassionate Solons legislating at leisure.
 

Shag, to remind you, during Reconstruction large parts of the country were, literally, under military rule. The 14th amendment was, literally, ratified by those parts of the country with armed soldiers present in the legislative chambers when the votes were taken.

It's true that constitutions are not always revised in times of peace, but times of war and military occupation should not be our model for constitutional adjudication. Or maybe you'd suggest that Reconstruction precedent says that ratification of amendments at the literal point of a gun would be just fine even today?

No, I think Reconstruction serves as a valid precedent for how to handle a civil war followed by forcible subjugation of the defeated part of the country, but can not be a valid precedent for how a constitution should be interpreted in normal times.
 

Shag suggests a value judgment is being made here.

We accept the original Constitution, even though blacks were largely under "gunpoint" at the time, putting aside only a fraction of the non-black population that now votes had the power of suffrage. A far from ideal situation in various ways, but we still use various means to understand how the text was formulated. On that point, James Wimberley is correct too. There were many pressures in 1787 too including pressure for Rhode Island to join the new constitutional union. Some perfect freedom of choice here is more of a thought experiment.

To the extent Brett thinks the ill nature of the times cautions us not to apply the Constitution as they did then given their misguided beliefs on what was proper [including the Guarantee Clause justifying not sitting ex-Confederate leaders in Congress until basic civil rights were protected, perhaps by means of a 14A] but should be done how we understand things now, it's appreciated.

Still, the 13A at least (I'd say more, but let's use the easiest case) seems justified, especially if we factor in black members of the country. The ex-Confederate states realized slavery was dead and accepted the need to formally end it. They were not involved in the passage of the 13A, since their governments treasonously was killing others on the battlefield and such, but especially as compared to other amendments where "free" and "honest" means a minority of adults voting helped by violence to deter others from doing so, as a whole it seems fairly reasonable how things worked here.
 

I've got no particular objection to enforcement of the 13th and 14th amendments, as written. I've got a big problem with the way Reconstruction era Republicans just ignored any part of the Constitution that got in their way. That is not a precedent that deserves any respect.

The 13th amendment, formally, abolished slavery and involuntary servitude in the US except as punishment for a crime. That's great, but once you've gotten rid of slavery, it kind of lacks application. Maybe we should recognize that it prohibits conscription, but that's about it.

The 14th amendment, literally, requires equal protection of the law. Also great, and exactly the opposite of what is being done under it's name. Understandable in a country with huge numbers of recent slaves and slave owners. To be expected at the hands of people who really didn't care to be constrained by a constitution, which was the Radical Republicans to a T.

Not so understandable a century and a half later.

I want everybody to be clear about what sort of precedents they're endorsing, when they claim that we should interpret the Constitution the way it was during Reconstruction. That's something pretty ugly you're endorsing.
 

It's a curious world view indeed which views Reconstruction as evil, in place of the actual evil it was designed to eradicate. It's also rather odd to claim that the Radical Republicans were the ones who "felt unconstrained by a constitution" in the context of treason in defense of slavery.

As for the 13th A lacking application, the drafters didn't think so. They passed the 1866 CRA on its authority. Of course, lots of white supremacists denied that the 13th actually granted such authority, so they passed the 14th A just to make certain.
 

It might be useful to add a bit more context.

So, a large part of the country rebelled after a fair/honest election resulted in a President they didn't like, one who agreed to a new "13A" that would protect slavery in the existing states. They lost the war but as a whole was allowed to go peacefully back to their homes.

While this was happening a new 13A was passed by Congress, various states not represented since those members freely resigned and the de facto governments in place refused to send senators or allow normal elections for representatives. Congress was out of session when the war was over; Andrew Jackson of Tennessee oversaw the end of the war and the creation of new loyal state governments. The necessary number of states ratified by December. The ex-Confederates as a whole realizing slavery was over and consenting to a formal amendment. Oregon, California, NJ and Iowa ratified shortly after.

Congress came back into session. In time, a lot of information came that newly freed blacks were being denied their rights, often violently. It was also determined that basic republican government was not being guaranteed in the ex-Confederate states. The Constitution guarantees a republican form of government.

Federal troops were in place to protect the peace and rights of newly freed blacks and others. A "reconstruction" scheme was set up, including the passage of the 14A to secure the rights of all citizens. Elections were set up, including involving blacks who were now free and equal members of society, to pass new state constitutions and vote on the 14A. It was also soon determined that a formal constitutional amendment to protect black suffrage was necessary as well, passed by Congress (voted in by the people and states) and set to vote.

The last federal troops left in 1877, part of an agreement to accept a dubious presidential vote count, and the rights of blacks were severely affected as a result. The three amendments were deemed settled. In the end, the "forcible subjugation" seems more fittingly applied to Southern blacks, but ymmv.

Not all of this was "just fine" -- though the bad parts probably will be debated -- but not sure any such process would be that smooth. Various aspects, including not just letting the old guard come back and suppress the rights of black citizens but setting up new elections with a more complete representation of the people etc., seems better than possible alternatives though.
 

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ETA: Regarding the 13A's application, one major application was to guard against debt peonage. This was important well into the 20th Century. I also thought Brett thought forcing people to serve blacks was a form of involuntary servitude.

Anyway, if we shouldn't be guided by those who wrote and ratified the texts since they were so horrible, fine, but let's be consistent about it. I'm no originalist myself though I question some of the historical analysis here.
 

Just to add one more point to Joe's fine summary of the "context", remember that the Supreme Court had already held in Luther v Borden that it was up to Congress to enforce the guarantee of republican government.
 

Ugliness is in the eye of the beholder. So let me modify Brett's closing paragraph as follows:

"I want everybody to be clear about what sort of precedents they're endorsing, when they claim that we should interpret the 1787 Constitution the way it was during the Constitutional Convention of 1787. That's something pretty ugly you're endorsing."

The 1787 Convention was called to amend the Articles of Confederation, which required unanimity by all the states. Yet the form of the 1787 Convention evolved quickly from amendment to a ratification procedure that did not require such unanimity. The ratification came about under that procedure without the unanimity of all the states. Subsequent to such ratification, eventually the remaining states joined ratification. But as precedent, the 1787 Convention was indeed ugly. Yet we continue to honor the Framers, Ratifiers, who avoided the unanimity requirement of the Articles. James Wimberley's point is well taken.

We still look back to the 1787 Constitution to understand how it is to be interpreted/construed some 2+ centuries later, despite the manipulation by the Convention of the Articles. Is that understandable?

What's really ugly is Brett's reference to the "Radical Republicans" responsible for the Reconstruction As, to be contrasted with the current base of the Republican Party that may share Brett's views, that base having come about since Brown v. Bd. of Educ. (1954), the civil rights movement, and the Civil Rights Acts of the mid '60, urged by Nixon's Southern Strategy in his 1968 campaign that reformulated the Republican Party as clearly not the Republican Party of Lincoln. Up to Brown, apparently Jim Crow was acceptable, despite the 14th A's efforts at equality.

Rather than concern with precedents, Brett has a problem with the changing demographics.


 

Joe, I don't think the Radical Republicans where altogether unreasonable in what they did, given the context they did it in. The point, rather, is that context matters, and they were faced with a hugely different context than we are today. They stretched things to the breaking point, and beyond, to try to put the country back together while abolishing slavery.

We today have no comparable excuse for stretching constitutional language like that. This isn't a fractured nation held together by the military, populated by former slaves and former slave owners. The 13th amendment abolishes slavery, not everything that makes blacks look bad. The 14th amendment guarantees equal protection of the law, not equal outcomes.

The time to torture constitutional language is a century and a half past.
 

As usual, Shag, you're incapable of treating political disagreement as anything but proof of utter depravity. Makes you rather boring to argue with, actually.
 

Brett, the implication of your argument seems to be: pay attention to original intent when I agree with it; ignore it when I don't. This accords pretty well with the Roberts court, per Mark Graber's recent post.
 

I believe that Kurt Lash is under contract with the University of Chicago Press to produce a set of "Founders' Constitution" volumes for the Reconstruction Amendments. I agree with Gerard that having such a set of volumes will be very helpful for lawyers wishing to engage with the history of this period.
 

Others have made the point that immediately came to mine upon reading Brett's comment, that it's odd to be troubled by the context of the Reconstruction Amendments but not by, say, the Founding itself where many of the states saw a third or more of their population held in chattel slavery at gunpoint. For me, the context of the Reconstruction Amendments is actually critical to their interpretation: they were enacted to empower a vigorous and necessarily forceful federal response to racist state oppression, terror and denial of basic rights. That should always be kept in mind when interpreting them.
 

The implication I indended was that you shouldn't treat extraordinary precedents from wartime as binding in peace. You guys seem to be kind of selective about the Reconstruction precidents you object to being ignored. Don't want to uphold the precedent that amendments can be ratified at gunpoint? That the government can shut down opposition newspapers, jail opposition politicians, and disenfranchise people who oppose government policies? Why not? The Copperheads didn't like those precedents, either. Doesn't that cement them as beyond criticism, too?

The 13th and 14th amendments have texts, during the Reconstruction era they were interpreted contrary to those texts. Not shocking, because the Radical Republicans weren't big on following ANY part of the Constitution that got in their way; They thought what they were doing was more important than any constitution.

After Reconstruction those amendments were differently interpreted contrary to their texts, bad faith, too, and maybe worse motivations for the bad faith, but it was bad faith in both cases.

I suggest we interpret them as meaning what they say, in good faith. What excuse have we got for not doing that? Starving ex-slaves being preyed upon by their former masters? Kind of in short supply today.
 

Let me try to give a specific example of what I'm talking about in the case of the Voting Rights Act and a case like Shelby. Given the context of the 15th Amendment, where federal troops had to be garrisoned in states which had just been defeated in a treasonous war aiming to preserve slavery and which were using state sanctioned terror to further oppress their citizens, it's preposterous to argue as the Robert's Court did that legislation empowered by the 15th Amendment is restrained by a requirement to treat all state's equally and not offend their dignity. This is an example of how the context of the Reconstruction Amendments should be kept in mind when interpreting them today.
 

Brett, would you say we should do the same with, say, the 2nd Amendment? We could say 'sure, there was this paranoia which manifested itself in a desire to ensure the people (or their militias) would always be armed to police the new government for tyranny, but that was in the context of just coming off a revolution and that attitude shouldn't be used to interpret the Constitution today?' I mean, are you aware of how Loyalists were treated during and even following the revolution?
 

Mr, Whiskas, given the context today, where federal troups are NOT garrisoned in states which were last at war 150 years ago, and which aren't using state sanctioned terror to further oppress their citizens, why should we treat those states as though the Civil war was last year?

Why do you want to pretend that the context is the same today, and the federal government is entitled to treat those states as though they were in rebellion last year?

Yes, I'd like to see the 2nd amendment treated the same, interpreted as meaning what it says. No problem at all with that.
 

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The 13th and 14th amendments have texts, during the Reconstruction era they were interpreted contrary to those texts.

How? How specifically was the Thirteenth Amendment interpreted contrary to the text? Some, such as Rep. Bingham (which Prof. M. wrote a book on) thought the 14A was required for some of what was passed, but not sure how much "gun point" factored in there really. Northern voters also expressed support with what Congress was doing there, contra the Andrew Johnson's (not Jackson!) strong opposition. And, the "gun point" argument is especially weak as applied to the 13A.

I suggest we interpret them as meaning what they say, in good faith. What excuse have we got for not doing that?

The fact you disagree with the interpretation, including all nine justices one way or the other at times (see, e.g., D.C. v. Heller, which you think the majority wrote incorrectly, if not quite the way Shag does), doesn't mean it is not being done "in good faith." That isn't the point here. It is (1) it's useful to determine what the people at the time thought when they wrote/ratified, even though certain things weren't ideal [it wasn't in 1787 either, but we do that) (2) Your analysis of how bad it was is somewhat confused. At least, that is what I take from it.

The 13th amendment abolishes slavery, not everything that makes blacks look bad.

Be careful with open flames around that much straw. Moving past that, e.g., just what freedom from slavery and involuntary servitude entailed & congressional power to protect it is greatly debated. How they understood such questions are of some interest.

The 14th amendment guarantees equal protection of the law, not equal outcomes.

The 14A guarantees various things. The fact the people of the time, e.g., generally didn't think interracial marriage was protected shows we should not take everything they thought at face value but again various things are of interest. For instance, a few courts at the time held that Congress could protect the rights from inaction of states, even if civil rights were violated by private action. This actually still happens today so is of some relevance. The debt ceiling also touches upon a mostly forgotten section. A range of other things also come to mind here. As to "equal outcomes," just what equal protection etc. warrants is greatly debated. For instance, many at that time thought congressional funding of education was important toward equal citizenship.

Why do you want to pretend that the context is the same today

Not sure who wants to do this. Again, I'm no originalist, so if done consistently with an informed knowledge of the past, applying the text in good faith using what we know today is a good principle. So, e.g., how "marriage" was understood when spousal rape was accepted in not how I'd go.
 

Brett

Yes, we are no longer at a place where we have to garrison troops in Southern states to protect blacks from the kind of terrors common following the Civil War, but we're also no longer at a place where we just had an unrepresentative national government move to disarm the populace either. Provisions like the 15th and 2nd have terms in them that have to be interpreted. For example, what's meant by 'arms?' Are sawed of shotguns included? Machine guns? Rocket launchers? Handguns? Or what's meant by 'the people?' Everyone? Just those in the militia? And what's meant by 'keep' and 'bear?' Would that cover concealed carry? Etc. In answering these questions in Heller Scalia looked at the historical context and understanding of these words. That context included the closeness of the Founders to English traditions dealing with governments trying to unarm citizens. Should the fact that we're hundreds of years away from that lead us to interpret the words of the 2nd differently today, as you argue should be done with the 15th? Likewise when we look at words like 'appropriate' in the 15th we should look at the historical context of the 15th Amendment, and when we do one thing we find is that treating states differently was going on concurrently with the ratification of the 15th Amendment.


 

Better yet, think of Macdonald. In Alito's opinion and Thomas' concurrence much mention is made of the very context we are talking about here, as the argument was that the 2nd should be incorporated to the states because the ratifiers of the 14th Amendment set out to protect, among other things, the rights of freedmen and their supporters to protect themselves against Southern terrorists and their black codes.
 

Brett, Joe, Mark Graber, et al.
I'll repost my comment on this page from 2012

Arguments could be made that the original intent of the reconstruction amendments was "unconstitutional", inconsistent with previous understandings, or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work.

Constitutional consistency and Biblical inerrancy are related. Reading is interpretation, and saying with Scalia, "the constitution as I interpret it is a dead constitution" is oxymoronic [also hypocritical, see Jack Balkin http://balkin.blogspot.com/2009/10/scalias-biggest-problem-isnt-brown-its.html].
To quote Karl Rove, "we invent our own reality".

From "A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments". J.J. Gass and Nathan Newman for the Brennan Center: https://www.brennancenter.org/publication/new-birth-freedom-forgotten-history-13th-14th-and-15th-amendments

---[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts. Opponents, including Johnson, raised the same arguments that would be marshaled against affirmative action programs a century later, but well more than the necessary two-thirds of Congress concluded that the 13th and 14th Amendments authorized race-conscious legislation to ameliorate the social condition of blacks.---

"to the point that black children in the South were often better educated than their white counterparts." How's that for a brilliant way to sow anger and mistrust among the poor white trash? Divide the poor, and conquer. The policy was blatantly unconstitutional, but it was the only call the white liberal elite were capable of making.

When Harold Washington won his first term as mayor of Chicago, after an election in which the white vote was split between two white candidates, one of the first things he did was tour white working class neighborhoods. He walked around and said "Hey, These streets are a mess! These garbage cans haven't been emptied for weeks! We'll have to do something about that!" And he did. The locals were shocked. They never thought a black mayor would give a damn about them. Washington won his second term running against only one significant opponent.

Elite liberalism is the philosophy of people slightly abashed by their own power, but not willing to give it up. It's noblesse oblige as opposed to winner take all; winner take all comes to down to loser offspring of the winner inherits the spoils. Reconstruction, and the New Deal, preserved the republic of rulers and ruled. They made the world safe for capitalism.
Conservatives left to their own devices would have given us a US as a third rate power made up of a bunch of constantly feuding mini-states.

If you want to understand politics and culture, remember that Derrick Bell, who disagreed with the Brown decision, and Harold Washington were black men in a white man's world. That gave them a perspective all of you lack.

And by the way, for all of you "liberal Zionists" who write for and read this blog. a headline from Haaretz "Israel Bans Novel Depicting Arab-Jewish Love Story From Schools Over Miscegenation Fears"

Palestinians know the Israel was founded on Jim Crow. They have a perspective that you lack.
 

That last comment reads like several comments were put into a blender and it came out.
 

"to the point that black children in the South were often better educated than their white counterparts."

Unconstitutional as policy and lousy, self-destructive politics. Making the white poor angry does not help long term stability.
"40 acres and a mule for all" was never an option. Reconstruction was just that: re-construction. It was preservationist, not radical.

 

Brett's response:

"As usual, Shag, you're incapable of treating political disagreement as anything but proof of utter depravity."

focuses on "political disagreement" whereas his screed is that the ratifications of the Reconstruction As were flawed, even seeming to suggest a redo. The utter depravity was the institution of slavery under the 1787 Constitution. It was slave states that seceded from the Union. Since the Union prevailed in the Civil War, it set the terms for readmission of the southern slave states that had seceded. I assume those seceding states wished to rejoin the Union, but they were not forced to rejoin; it was in their economic interests to do so. The terms of readmission were appropriately determined by the Union. Consider that the legality of the ratifications of the Reconstruction As have not been challenged, via the Court, to date. Of course, during the days of Jim Crow, there was no need for such challenges, as Jim Crow kept African-Americans in their place. But when that changed starting with Brown (1954) as I noted earlier, "the fit hit the sham."

Now, some 60 years after Brown, the changing demographics have riled up Brett and his ilk to question the validity of these ratifications. While Brett may be too bored to argue with me, this doesn't mean that others shouldn't consider Brett's obvious biases against African-Americans. America is not yet post-racial. Alas, the superiority for Brett and his ilk is in numbers only, as I said before the Trump card. Perhaps if Brett recognized the utter depravity of slavery, as well as the depravity of Jim Crow, he might provide a lesson for his mixed-race (Asian-American) young son.
 

Shag, Meet Derrick Bell
http://news.stanford.edu/news/2004/april21/brownbell-421.html

---While honoring the efforts and sacrifices of the people whose struggles culminated in Brown v. Board of Education, the Supreme Court case that ended school segregation in this country, New York University Professor Derrick Bell provocatively suggested last week that generations of black children might have been better off if the case had failed.

"From the standpoint of education, we would have been better served had the court in Brown rejected the petitioners' arguments to overrule Plessy v. Ferguson," Bell said, referring to the 1896 Supreme Court ruling that enforced a "separate but equal" standard for blacks and whites. While acknowledging the deep injustices done to black children in segregated schools, Bell argued the court should have determined to enforce the generally ignored "equal" part of the "separate but equal" doctrine---.
Bell's dissent is published here:
http://nyupress.org/books/9780814798904/
What Brown v. Board of Education Should Have Said
The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision
Edited by Jack Balkin



 

"Perhaps if Brett recognized the utter depravity of slavery, as well as the depravity of Jim Crow, he might provide a lesson for his mixed-race (Asian-American) young son."

Perhaps if you could admit that the utter depravity of slavery doesn't justify racial discrimination 150 years after it was abolished, and that opposition to racial discrimination isn't the mark of a racist, you'd be less boring.


 

I'm not exactly sure what D. Ghirlandaio is trying to say, but I recently re-read "What Brown v. Bd. Should Have Said." Prof. Balkin also was involved in an effort of that sort as to Roe v. Wade. Both were interesting.

Anyway, going back to the OP, we do have a formal official record on congressional debates as to the 13-15A, the process not done secretly behind closed doors. We might have a "bare bones" only of the Joint Committee specifically, but seems a bit more than we have on some level regarding Madison's Notes ... notes a recent book shows leaves more to be desired than many think.

As to the Federalist Papers, I think too much credit is given to a series of op-eds myself, especially to the degree Alexander Hamilton is far from the median voice on the question. There are various essays available, on both sides, besides those documents. I am not aware of something exactly like that regarding the 13-15A, especially that level of detail, but there were various people who (including Bingham) who did discuss their views on various issues there. A collection in one volume would be useful there as was done, e.g., for Anti-Federalist Papers etc.

[Prof. Levinson's new book is entitled An Argument Open to All: Reading "The Federalist" in the 21st Century; such a work as applied to the Reconstruction Amendments would be useful as well.]


I do appreciate those who do the work to put all these things together though especially with modern techniques, it should be easier.
 

"I'm not exactly sure what D. Ghirlandaio is trying to say"
Did you read Bell's essay? Did you read my previous comment with the quote from the essay about the reconstruction amendments?

I know people from the old days of civil rights activism who admitted in private that affirmative action based on race was unconstitutional, but they defended it because it was the only way to get things done. You can't have a republic based on equality under law with millions of people opposed to equality in society. You need to change the people.
The Supreme Court was ahead of the public at large for a few years, and now they're behind it. Judicial review was a tool for the left, and now it's not. Strategies change, life and politics go on.

White liberals want to feel good about themselves. Bell and Harold Washington were black. It made them realists.
 

Brett should identify the racial discrimination (which I assume he means not against Arrican-Americans but against Whites?) that he says exists today. When did it start? Did it start in 1954 with Brown, or after the reaction to the civil rights movement that followed, or after the Civil Rights Acts of the mid '60s? Brett fails to address the disproportionality with jim Crown after the Reconstruction As. So let's pinpoint when Brett claims such discrimination he came about. Does it have to do with the election of Pres. Obama in 2008? Or did such discrimination start with the handing down of Brown? Of course Brown was not self-implementing, as evidenced by the opposition particularly in the former slave states.
 

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As I said, I read the whole book, including Prof. Bell's essay.

Think I get the gist (as Mr. W. noted, the first comment is a bit garbled) though Bell argued in that essay that Brown v. Bd. was a tool of the white establishment, not necessarily "the left" as such.

As to affirmative action being "unconstitutional," first, "affirmative action" means a range of things. Second, there was and remains a range of opinions on the matter. Some did defend it (and I have read Thurgood Marshall himself was wary of it) as the best approach available. Such is often how reality works -- imperfect means.

As to the SC being "behind," depends on the issue. The Warren Court, according to various commentators, was not really "ahead" in various respects except to the extent certain regions were lagging. Desegregation was agreed upon by the nation as a whole. Again, this was basically a theme of Prof. Bell's "dissent" in the Brown v. Bd. book. The opinion was more 'establishment' than one might thing, not as much concerned about the immediate needs of the blacks in question.

Don't think feeling good about oneself is merely a "white liberal" thing; some white liberals these days seem pretty cranky. Realism comes from all sides too. The current Supreme Court being "behind" also is again depending on the issue. I might want it to go further at times, but not always in the majority there. The majority, e.g., is fairly accepting of imperfect criminal justice & at times the Court goes a bit ahead of them (e.g., banning certain forms of the death penalty).
 

"(as Mr. W. noted, the first comment is a bit garbled)"
It wasn't garbled. It was mocking a range of popular assumptions.

There is no "true meaning" to the second amendment. We argue over what we want it to mean.

I'm done. Bored out of my fucking mind.


 

Bell and Harold Washington were black. It made them realists.

I don't think that the late Derrick Bell's controversial opinions were necessarily realistic or appropriate guides to policy. In this regard, I recall reading an interview with him in the long-defunct Portland Oregon alternative paper, Clinton Street Quarterly, in which he advocated voting for Reagan in 1980 because "America won't change until white people suffer as much as black people already have" (as if that will ever happen).

I managed to discuss this with him shortly after, in a one-to-one conversation, while we waited to run in the 10K Butte-To-Butte race in Eugene, where he was Dean of the School of Law. (The Upper Left Coast, where anyone can talk to the Dean.) He confirmed this same opinion to me. This thinking does not seem like the mark of a realist. It was, in fact, a tactic of the German left in the run-up to the Nazi period. That didn't work out too well.
 

At the time of Brown (1954) were the states - all of them - prepared to expend the funds for a realistic "separate but equal" segregation? I don't see evidence of that. The many decades of Jim Crow following the Reconstruction As served the goals of segregationists to impede the advancement of African-Americans. A level playing field was never in the hearts and minds of segregationists. This suggests a fear of fair and just competition. And that was before changing demographics was developing. Alas, it seems the segregationists of today do not consist of the scions of the slaveowners class of yore, but of the poor whites of those days.

George Wallace's "segregation now, segregation tomorrow and segregation forever," was rejected by America. But pockets of White Supremacy continue to challenge desegregation, perhaps fearing that with the changing demographics they may be treated as poorly as they treated people of color back in Kim Crow days.
 

When did you progressives become born again disciples of original intent?

Unless the words and terms of the Civil War amendments are somehow vague, there is no real reason apart from historical curiosity to consult with legislative history to apply these amendments.
 

Inconvenient texts are always vague, Bart. In this case, we have one amendment which does no more than prohibit slavery, and another which mandates that people are entitled to the equal protection of the law. The left wants to do more than abolish slavery, and want in the process to treat people unequally.

Since the actual text of the amendments gets in the way of that, they cannot be clear. Clarity isn't determined by the quality of the language, but by whether that language, if it were admitted to be clear, would get in their way.
 

The "actual text" of the Thirteenth Amendment:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.


The Civil Rights Cases (1883), not just "the left" (Brett's usage of language is inconveniently inexact; "the left" is some nebulous term as he uses it given the reach of his targets), noted:

It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.

The reach of this concern for "badges and incidents" was debated and John Marshall Harlan, who's Plessy dissent is at times appealed to by critics of certain forms of affirmative action, argued it included racial discrimination in a range of public accommodations. But, beyond that, the reach of the 13A language (which goes back to the Northwest Ordinance) was a matter of debate before and after the Civil War. The OP wishes to advance study in this area. The author of the OP has expressed in the past something of a Republican leaning.

Now, Brett might have disagreed with the people before and after the Civil War that supported a range of beliefs as to what the language means. Brett also has voiced support of the idea that requiring service to blacks is a form of involuntary servitude. But, historical study is a productive enterprise, and does not merely bring forth conservative lessons.

I also don't think the text of the Equal Protection Clause is overall inconvenient. I disagree with Brett et. al. on certain applications. I find it quite useful, e.g., to appeal to broad language when some want it to have a hidden limitation (such as "for race" or "as was understood in 1868"). As noted, history can be productive here, including support into the 1880s for federal funding of education to ensure equal citizenship.

http://www.yalelawjournal.org/article/education-equality-and-national-citizenship

BTW, another possible 13A avenue was discussed by a sometime blogger here:

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1031&context=facultyworkingpapers

Levinson and Balkin also wrote this:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115222 [dangerous 13A]

Have a good new year all.
 

When did you progressives become born again disciples of original intent?

That query is ridiculous on the face of it. The point is to expose the hypocrisy of those who claim to be disciples of original intent but slough off that discipline whenever it suits them, as Mark Graber pointed out in his recent post "The Copperhead Court?" at http://balkin.blogspot.com/2015/12/the-copperhead-court.html.
 

Larry:

I share Scalia's criticism of the uselessness divining original intent from legislative history.

Applying the original meaning of the law is the only honest means of interpretation


 

Joe:

Equal means equal. The meaning of the term is only conveniently vague for those who desire the government to discriminate against similarly situated groups.
 

"In this case, we have one amendment which does no more than prohibit slavery, and another which mandates that people are entitled to the equal protection of the law."

Why does Brett keep forgetting the 15th Amendment?

"Equal means equal."

You kind of realize it's not quite as simple as you make out when you use the words 'similarly situated' later.

 

Mr. W:

Similarly situated is not a particularly difficult concept either.
 

https://www.loc.gov/rr/program/bib/ourdocs/15thamendment.html

15th Amendment
Amendment XV
Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2.

The Congress shall have power to enforce this article by appropriate legislation.


"What's the meaning of this?!!!!"

"This means this, sir."

 

Our own MRO = Macro 'Rhoidless One.

By the Bybee [expletives deleted], I note that our own MRO has yet to pick up on Brett's concerns regarding the manner in which the Reconstruction As were adopted/ratified, suggesting a redo might be appropriate.
 

Joe:

Do you seriously consider Section 1 of the Fifteenth Amendment to be in any way vague?

If so, what don't you understand about this prohibition?
 

The second part of my last comment was not really merely in reference to the 15A (Mr. W.'s comment had two parts; I responded to each in turn), but that works.


The words of both sections do seem a bit "indefinite" in various respects. They led to a range of Supreme Court cases, e.g., that split the justices in a range of ways.

Surely, I am serious. And, stop calling me Shirley. (That works better verbally.)

 

Joe:

My question is whether Section 1 of the 15A was in some manner vague, not whether Congress and/or the Supreme Court rewrote the provision.


 

Given rights that cannot be abridged by "previous condition of servitude," where acceptable "servitude" is only for punishment for a crime, how are felons barred from voting in so many states? How can "involuntary servitude" takes place within the jurisdiction of the United States at Guantanamo Naval Base, where detainees have not been duly convicted? Do the words of the 13th & 15th mean something more than their mere texts? Did dictionaries available when the 14th was drafted offer definitions of "citizens" or "person" as corporations? Since we're granting corporate rights under 14-1, why aren't they counted in the census under 14-2?

"Plain language" leaves some questions begged, it seems to me, layman that I am.
 

"The words of both sections do seem a bit "indefinite" in various respects. They led to a range of Supreme Court cases, e.g., that split the justices in a range of ways."

I take these as generally honest differences of opinion on what the text means. The reach of "deny," "abridge," the enforcement power of Congress etc. has been reasonably debated for quite some time.

===

LK cites some provisions that raise some questions though answers can be provided to some degree. For instance, "servitude" in prison would be something like prison labor. The felon barrier is not for laboring in prison, but for being in prison at all. I don't know what sort of "involuntary servitude" is present in GITMO; merely being held as an enemy combatant or POW, would not be "involuntary servitude" as that term in defined. And, yes, corporations were legal "persons" in certain respects in 1868 but not "citizens." These are not all crystal clear and would require some analysis that will result in dissent.
 

"My question is whether Section 1 of the 15A was in some manner vague, not whether Congress and/or the Supreme Court rewrote the provision."

Because of course the presence of disagreement by majorities on the Supreme Court are not indicative of these being something other than obvious, but bad faith on the part of those that don't see it the way you do. All disagreement is 'usurpation' for fanatics.

I also like how you narrowed the question to Section 1 of the 15th, when Sec. 2 famously contains a term that it seems even you can't argue is obvious ('appropriate').
 

"Similarly situated is not a particularly difficult concept either."

Ah, but the 14th says nothing about 'similarly situated.' It says 'equal protection of the laws.' You've interpreted that to mean a prohibition on against measures that would 'discriminate against similarly situated groups'. Apart from the fact that deciding when groups are 'similarly situated' is an area where reasonable people can find much disagreement, it's not obvious that equal protection of the laws contains this similarly situated idea, or was meant to.
 

Larry:

Status as a felon or a prisoner of war is not a condition of servitude.

Instead of applying the legal fiction that a corporation is a person, courts should view s corporation as an association of persons exercising their own individual rights.


 

Joe:

Deny and abridge means to fully or partially deny the right to vote. What is vague about this?
 

Mr. W:

Appropriate means legislation which enforces the preceding provisions of the 14A. This term is analogous to the phrase necessary and proper.

Similar situation is another term for equal. The government treats the same people the same.

None of these concepts are difficult.

 

Our own MRO (Macro "Rhoidless One) continues to rely upon "Constitutional Law in a Peanut Shell." As he says, "None of these concepts are difficult.? Not for a Simpleton.
 

Bart, did you really just point to the *Necessary & Proper Clause* in making an argument about straightforward, obvious Constitutional provisions? Wow.


 

"partially deny the right to vote"

What in the world would be *obvious* about 'partially denying the right to vote?'

"The government treats the same people the same."

Taken literally, that's like a line from Alice in Wonderland. If the people are 'the same' then there's been no distinction made between them!

A huge debate over the word 'equal' involves whether it means treating everybody the same or the more narrow like cases alike.

An excellent SCOTUS case illustrating how non-obvious this term is Michael M. v. Superior Court of Sonoma County, where a young man challenged a statutory rape statute that applied only to men. Is it obvious that equal protection would mean that the law should apply the same (a literal synonym for equal) to men and women, or is it obvious that the men are not 'similarly situated' and treating them 'the same' under the law is not required?
 

repeats of repeats

"...or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work."

"You can't have a republic based on equality under law with millions of people opposed to equality in society."

You can't resolve a conflict by denying contradiction. Reconstruction was like the affair that saves the marriage.
Pedantry is for schoolmen; disastrous for politics.
 

Roberts uses the history of duels to make a point in his end of the year report:

http://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf


 

Mr. W:

I did indeed point to the N&P Clause as something which is simple and straight forward. The provision is simply an enabling provision which grants Congress the power to enact legislation to implement the powers granted by the Contsitution. The fact that intellectually dishonest judges and commentators have sought to rewrite the provision does not make it otherwise.
 

Mr. W:

Fully denying the vote is keeping someone from casting a ballot under any circumstances.

Infringing the right to vote is making it more difficult to cast a ballot.

These terms are not vague or difficult to understand.
 

"I did indeed point to the N&P Clause as something which is simple and straight forward. The provision is simply an enabling provision which grants Congress the power to enact legislation to implement the powers granted by the Contsitution."

That is nonsense, but more to the point, unresponsive to my point that what it grants is not obvious. It's on it's face an grant of indefinite, unenumerated powers, to call this kind of provision 'simple and straightfoward' is borderline laughable. Nothing could be more 'vague,' more open to disagreement among reasonable people in the political realm than the question of what, for example, is 'necessary' to regulate interstate commerce.

"Infringing the right to vote is making it more difficult to cast a ballot."

Like requiring certain identification papers be presented first? You seem caught squarely here: you've said here before you don't think ID requirements are unconstitutional, but there's no way to argue they don't make it more difficult to cast a ballot than not requiring it. You might argue, well, it only makes it a smidgen more difficult and that's OK, but now look: you're already treating the term you're arguing is obvious on its face with some interpretative qualification. Seems an odd thing to do with such a simple and obvious provision ;)
 

Mr. W: The N&P Clause is "on it's face an grant of indefinite and unenumerated powers."

Have you read the provision? The N&P Clause states Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof."

The N&P Clause is expressly limited to enforcing the Constitution's enumerated powers.

Like requiring certain identification papers.

Showing a free government provided photo ID does not deny the right to vote in whole or in part.
 

Bart,

That limit is about the *ends* of the use of N&P powers, the powers themselves that are granted are indefinite and unenumerated, that's the entire point of the clause. It's granting powers that are not listed in the 'forgoing' powers, but which would be necessary to carry them out. What powers are granted is entirely indefinite and unenumerated, they are only limited by this: that they have to be necessary and proper to one of the listed ends. What's necessary to, say, establish post offices and roads might be different than what is necessary to, say, regulate interstate commerce. They'll involve different governmental acts of power, the N&P grants Congress the authority to do them both though. But of course, what is necessary to carry out the enumerated powers is something reasonable people have been disagreeing with for our entire national history.
 

"Showing a free government provided photo ID does not deny the right to vote in whole or in part. "

No wait, you said this: "Infringing the right to vote is making it more difficult to cast a ballot."

It's ludicrous to argue that it is not more difficult to vote when ID is required. It's an additional requirement, by definition it would be *easier*, less *difficult* if I did not have to go obtain, bring and show the ID in order to vote. Perhaps it's only minimally more difficult, but then, of course that's not what you said. And therein lies the non-obviousness of what we're talking about!

 

Mr. W:

What are you talking about?

The Constitution only grants enumerated powers. There is no general police power.

The N&P Clause expressly refers to those enumerated powers. This provision does not grant Congress the power to enact any law it considers necessary and proper.
 

Voter ID does not make voting any more difficult than filling out a ballot.
 

Voter ID does not make voting any more difficult than filling out a ballot.
# posted by Blogger Bart DePalma : 9:05 PM


The great thing about Bartworld is that you can deny reality any time it becomes inconvenient.
 

BB:

I have spent far more time filling out ballots over the years than I spent obtaining a photo ID.
 

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”


"Difficult" means what "I" choose it to mean, neither more nor less. "Choose" can mean after some degree of reasonable contemplation of meaning, not arbitrarily so. When others disagree with me, they are dim sorts or acting in bad faith. Both sides at times has this sentiment -- see how the 2nd Amendment is applied or the Equal Protection Clause.

I gathered as to voting, we were talking about the 15th Amendment, so one can argue an id is race etc. neutral. (1) kinda isn't [but determining the rules here is a big debate; see, e.g., City of Mobile v. Bolden] (2) voting is a fundamental right so shouldn't be wrongly (implied) "deprived" or "denied" or "abridged" generally speaking.

Anyway, Mr. W. did cite an interesting case & if interested, people can listen to the oral argument (and opinion announcement) at Oyez.com. FWIW, I think the dissents have the better argument, but the majority puts forth a reasonable stance too.
 

Justice Breyer in a separate opinion in Van Orden v. Perry (involving a Ten Commandments display) noted:

I see no test-related substitute for the exercise of legal judgment. That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts–and might well lead to the same result the Court reaches today –no exact formula can dictate a resolution to such fact-intensive cases."

He applies opaque text in this fashion with insights obtained from history and precedent. He wrote a couple books expanding on his views, but the inexact nature of the results to me is honest. As he ended his concurrence:

"I do agree with Justice O’Connor’s statement of principles in McCreary County, post, at 1, though I disagree with her evaluation of the evidence as it bears on the application of those principles to this case."

You can even agree with someone on basic principles but might disagree with the person as applied (fwiw, I think O'Connor was probably correct in this case, but again, don't think the majority put forth an unreasonable argument).

This level of judicial discretion (which honestly involves some sort of "personal" judgment if one done by judges) bothers some people and some try to find alternatives to restrain discretion. But, the workarounds (see, originalism etc.) tend to be most convincing to the convinced.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=317084
 

My first time voting was in the Fall of 1952, in Boston where I then resided. In mid 1973, we moved to Brookline, where I continue to reside. I don't think I have missed any elections since becoming eligible to vote (age 21 at the time), except for perhaps one or two municipal elections. So I too have spent "far more time filling out ballots over the years than I spent obtaining a photo ID." But in voting over all those years, I was never once required to produce a photo ID to get access to the ballot.

Over the years, the MA DMV has been cursed for its long lines. The system is updated from time to time but the cursing continues. These curses are not based upon voting needs but upon the time spent renewing licenses, etc. Yes, the system continues to improve, with Internet access for certain matters. Youth need photo IDs for non-voting reasons. The elderly might have a tad of difficulty with DMV Internet access/operation.

I am not aware of claims of voting fraud in MA, where voting registration is accomplished fairly simply. Voting is time consuming with more extensive ballots, petitions, etc. But here in MA, checking in to vote - and checking out - without the need for photo IDs has worked well. I always decline to accept the "I VOTED" sticker, as that was my personal decision that I prefer not to advertise. Then I am instructed to place my ballot in a machine. As I do so, I ask: "Is this the shredder?" Some laugh, some frown. But as one gets older and gives up driving (as I have), the steps required for a photo ID to vote become more of a chore. Fortunately when I seek an adult beverage, I'm no longer carded.
 

This comment has been removed by the author.
 

Legal judgment, my ass. Breyer rewrites the express peovisions of the Constitution and statute as he personally sees fit. See the Arizona Legislature and the Obamacare decisions from the last session.
 

Ladies Shag's age should be carded.

"Sorry ma'am ... wasn't quite sure."
 

"The Constitution only grants enumerated powers. There is no general police power."

I didn't say the N&P Clause grants a general police power. It grants unspecified powers to carry out the enumerated. Its plain the clause grants unenumerated powers, for example, the Constitution enumerates no power of eminent domain, but in carrying out its enumerated postal power the federal government could take land for that purpose.

"Voter ID does not make voting any more difficult than filling out a ballot."

Even if the pains of going to the motor vehicle department were not so well accepted as to be common fodder for comedians, it would certainly be 'more difficult' to require an ID to vote because it absolutely would be an additional thing to do other than the voting itself. You're caught in your own words.
 

"Fortunately when I seek an adult beverage, I'm no longer carded."

I always laugh at the conservative talking point that everyone must have ID because you constantly have to provide it in our world. I can truthfully say that I haven't shown my ID to anyone for years.
 

"See the Arizona Legislature "

Recognizing that something is functionally the equivalent of an expressly named other thing is hardly 'rewriting.' For example, you've said on this discussion board before that you're fine with Authorization to Use Military Force to do the work that a formal Declaration of War does, but they are certainly not the exact same thing.
 

Mr. W.'s replies seems to be using objective reasoning in response to subjective reasoning. Anyway, he's the master of his domain so is not caught at all. Nice try though.
 

Our own MRO's (Macro 'Rhoidless One):

"Legal judgment, my ass."

is illustrated with each of his comments.
 

Joe's 10:09 AM link at the end of his comment provides an Abstract for a book by Daniel A. Farber and Suzanne Sherry published in 2002, which of course is not downloadable. It is a most interesting abstract, with its focus on various themes or theories on originalism. This brings to mind a 12/3l/15 post at The Legal Theory Blog announcing the Originalism Summer Boot Camp at Georgetown Law, 5/23-27/15. A link is provided to the brochure, which is worth a read. Perhaps the reference to "Boot Camp" has a semantic meaning, whether intended or not, touching upon originalism principles. Students can get a $3,000 stipend and get to meet Justices Scalia and Thomas. Boot Camp?
 

Mr. W:

Let's try this again.

The NPC is an enabling statute. Standing alone, it does not grant Congress any power. It only allows Congress to enact legidlation to exercise other powers granted by the Constitution.

For example, the combination of the power to borrow money and the NPC alllows Congress to enact legislation to borrow money. Nothing more.
 

Unelected commissions are not the functional equivalent if elected legislatures. Indeed, the purpose of unelected redistructing commissions is to avoid the politics inherent in an elected body.

The Supreme Court illegally rewrote the Constitutionby decree.
 

I have spent far more time filling out ballots over the years than I spent obtaining a photo ID.
# posted by Blogger Bart DePalma : 8:22 AM


So fucking what? If the options are "go vote" or "get an ID and then go vote", then option 2 is, by definition, more difficult. The only way the step of getting the ID would not make the process "more difficult" is if it magically appeared in your hand when you showed up at the polling station. This isn't a matter of opinion. This is a matter of the generally accepted definition of "more difficult".

 

BB:

There are two necessary parts to voting - proving that you are an eligible voter and casting the vote. Neither are an added burden to voting.
 

When did photo ID start as a means of proof of being an eligible voter? What were the means of such proof pre-photo IDs? Was there significant evidence pre-phoyo IDS of "ineligible" voters? Are photo IDs foolproof evideence of being an eligible voter? Are there racial patterns to the adoption in various states of photo IDs requirements for voting? In such states, what is the extent of credible evidence of ineligible voting pre-photo IDs requirements?

Why this trend may beome a requirement for posting comments at this and other blogs and websites throughout the Internet. Of course some adopting this technique of photo racial identity can touch up their accompanying photos to lighten things up, you know, something to get a laugh.
 

http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx

This summary notes that S.C. was the first with a voter id law (1950) but it wasn't a photo id law. Hawaii came second years later.

A couple states had photo ID laws in 1977:

https://en.wikipedia.org/wiki/Voter_ID_laws_in_the_United_States

The chart includes rules for registration and "id" can mean utility bills and the like. It should also be noted that "picture ID" and "government ID" is not the same thing & the rules vary from state to state.
 

There are two necessary parts to voting - proving that you are an eligible voter and casting the vote. Neither are an added burden to voting.
# posted by Blogger Bart DePalma : 9:42 AM


Dumbfuck, if a law is passed that requires that you need a photo ID, then a burden is being added to voting. Period.


 

"There are two necessary parts to voting - proving that you are an eligible voter and casting the vote. Neither are an added burden to voting."

Holy word salad Batman! First, notice the begging of the question, attempting to define voting to include 'proving that you are an eligible voter.' Secondly, even accepting the question begging, note that as Joe notes 'proving that you are an eligible voter' has, for most of our history, not involved obtaining and showing a photo ID, so therefore this is obviously a requirement that is not a necessary part of proving you're eligible, but something that has been ADDED to the pre-existing process, an ADDED requirement, unless it is replacing a previous one, is by definition making it more difficult than without the requirement. Lastly, ignoring that 'proving you are an eligible voter' can include all kinds of things that are commonly accepted as burdensome infringements of the right to vote (grandfather clauses, poll taxes, and literacy tests were all procedures establishing whether a voter was eligible or not).

Just terrible Bart.
 

This comment has been removed by the author.
 

Mr. W, at al:

Because the Constitution limits voting to citizens, proving you are an eligible voter is indeed a necessary part of voting.

Photo IDs are simply the most efficient means of making this determination.

Poll taxes and literacy tests are not a means to accomplish anything required for voting and are not analogous to voter ID laws.

Immigrant non-citizen voting has always been a problem. Progressive voter registration slowed the problem, but now progressives need to import voters to remain viable.
 

Because the Constitution limits voting to citizens, proving you are an eligible voter is indeed a necessary part of voting.

Photo IDs are simply the most efficient means of making this determination.

Poll taxes and literacy tests are not a means to accomplish anything required for voting and are not analogous to voter ID laws.

Immigrant non-citizen voting has always been a problem. Progressive voter registration slowed the problem, but now progressives need to import voters to remain viable.
# posted by Blogger Bart DePalma : 4:14 PM


Nothing in this steaming pile of crap changes the fact that photo ID is an additional burden.
 

This comment has been removed by the author.
 

Photo IDs cannot be a necessary part of voting because voting went on before such a requirement and goes on in most of the US where there is no such requirement. It's something EXTRA, an ADDITIONAL requirement to what has been practiced before it and is practiced in other jurisdictions. By definition an added or additional requirement, unless it REPLACES ones that existed previously, adds to the requirements. This is not partisan, it's math and English Bart.

"Because the Constitution limits voting to citizens"

Where does it do that? States and localities have in the past and currently extended the franchise to aliens. There is a federal law preventing non citizens from voting in federal elections, but no constitutional provision that I'm aware of.



 

The history and current practice of states and localities enfranchising non-citizen residents by itself nullifies Bart's claim that proving citizenship is a 'necessary part' of voting.

Of course what Bart is trying to conflate with the actual act of voting itself, proving citizenship, is a single part of a larger set of requirements for eligibility. In fact, it's one possible way of 'proving' one possible eligibility requirement. Not requiring many eligibility requirements and not requiring many methods of meeting or proving them would undoubtedly make voting itself EASIER, and the converse would make it MORE DIFFICULT.

Now, maybe, in fact likely in my opinion, one can argue that the difficulty does not rise to the level of an 'abridgement' of the 'right to vote,' but not if one takes Bart's idea that 'abridgement' is a 'simple' idea meaning 'anything that makes voting more difficult.'
 

"The history and current practice of states and localities enfranchising non-citizen residents by itself nullifies Bart's claim that proving citizenship is a 'necessary part' of voting."

Like the history and current practice of rape nullifies the claim that consent is a necessary part of sex? It's kind of trivially obvious that people do things wrong occasionally, so that you can point to an occasional instance of something being done doesn't necessarily legitimize it. Moral and legal rules aren't like the rules of physics, which are just a description of what happens. They're a description of what is *supposed* to happen, with the understanding that somebody will probably try to violate them.

So, of course local officials who think illegal immigrants will vote for them, are going to be interested in letting illegal immigrants vote. Especially if they're not so certain they could win with the votes of citizens. That doesn't mean doing so is right.

In the election coming up here in S.C. I have a right to vote. But not a free-floating right to vote. I have a right to cast one single, solitary person's ballot, my own. Nobody else has a right to cast that particular ballot.

That makes demonstrating who I am a fundamental part of voting.

Does it have to be photo ID? In a society where people didn't do much moving around, obviously not: The poll workers would have recognized you. Back when I lived in Michigan, one of the poll workers was my HS bus driver. She didn't need photo ID to know who I was. Here, of course, the poll workers don't know me from Adam.

Now, in all candor, in person impersonation of voters is not a common thing. It happens at a non-zero rate, there are occasionally elections that are close enough to be decided by it, but still, dealing with it would be way down on my list of priorities. I'm much more concerned with systematic absentee ballot fraud, perpetrated by elections officials.

But, voter ID isn't being attacked just as a poor allocation of resources, bad prioritization. It's being attacked as unconstitutional. And, though you might think it a good idea, the Constitution doesn't actually mandate that the legislature address problems in strict declining order of importance. It's perfectly constitutional for the legislature to concentrate on trivial matters while big problems go unaddressed.

And, in all candor, while a lot of people support voter ID as a way of discouraging fraud, I'm quite certain it is mostly supported by legislators as a way of discouraging ill motivated voters from bothering to vote, on the assumption they're going to be voting for the other party.

This in no way distinguishes voter ID from a wide range of regulations adopted with the aim of discouraging people from exercising this or that civil right. Most gun control laws have exactly that motive: Hassling people who try to own guns, in the hope that fewer will.

Do you want to establish a general principle that discouraging the exercise of a constitutional right is an impermissible legislative motive, which renders laws adopted for that purpose unconstitutional? I'd be cool with that.

But a principle that discouraging the exercise of constitutional rights you approve of, or the exercise of which benefits you, is impermissible, while discouraging the exercise of other rights you don't like is just peachy? Nope, not going along with that.

You want me to take seriously the idea that you object to discouraging people from exercising constitutional rights, you're going to have to apply it across the board.
 

Has Brett given up on his challenge to the legality of the adoption and ratification of the Reconstruction As? It seems so to me in his recent comment as he is relying upon the Reconstruction As to support photo IDs for voting. But here's the money ball in Brett's comment:

"And, in all candor, while a lot of people support voter ID as a way of discouraging fraud, I'm quite certain it is mostly supported by legislators as a way of discouraging ill motivated voters from bothering to vote, on the assumption they're going to be voting for the other party."

That's been the pattern in the mostly former slave states, especially since the Court's Shelby County decision (5-4).

And Brett takes the opportunity to tie-in the 2nd A with photo IDs, i.e., gun regulations to limit gun ownership and voting regulations via photo IDs to limit voting. Is there a hidden Brett message in this, considering that he is a self-proclaimed anarcho-libertarian and a 2nd A absolutist? Brett seems to draw a sort of a line in the sand with his closing:

"You want me to take seriously the idea that you object to discouraging people from exercising constitutional rights, you're going to have to apply it across the board."

Does Brett have "open carry" voting in mind?
 

Nothing particularly hidden here. I've observed that the people whining the loudest about how voter ID burdens the exercise of a civil right, voting, are generally the same people who favor all manner of laws to burden the exercise of another civil right, gun ownership. Demonstrating to me that it's not a principled objection to burdening the exercise of civil rights.

It's all about the partisan consequences.

Don't expect me to care about complaints about burdening the right to vote, from people who are only too happy to burden other civil rights.
 

The "people" in Brett's:

"Don't expect me to care about complaints about burdening the right to vote, from people who are only too happy to burden other civil rights."

include even the 5-4 conservative majorities in Heller (2008) and McDonald (2010) regrding 2nd A regulations.
 

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Brett,

I'm not commenting on whether ID requirements are good policy or constitutional. Bart was arguing that there's no usefulness to the legislative history and social history surrounding Constitutional provisions because the text is so simple and straightforward. I suggested that the text is not so simple, for example, what would count as a 'partial abridgement' of the 'right to vote?' Bart replied the answer was simple, anything that made the right to vote more difficult. Knowing Bart supports ID requirements I merely pointed out that enacting an additional requirement to voting would meet the literal definition of making voting 'more difficult.' Remember, I don't think anything that makes voting 'more difficult' should be thought of as a 'partial abridgement' of the right to vote. Maybe a particular requirement to prove you're an eligible voter casting your one vote in the right place at the right time will be so, maybe it won't. I'm just saying it's not automatically clear from text alone and so it might be useful to know what those who drew up the text were thinking, understanding and possibly expecting.

I don't think your analogy to rape and sex works because I would certainly think an act of rape is still an act of sex. Bart was proving citizenship was a necessary part of voting, that voting without such proof wouldn't even be voting. That's of course not true (which is not to say that it might be a good idea to have such a requirement in voting).
 

As to Brett's comments about partisan hypocrisy in fighting certain burdens on certain rights, I agree in part and disagree in part. I disagree in part because I don't think that all of that is necessarily partisan. We have certain rights, like the 'right to free speech,' 'right to vote,' and the 'right to keep and bear arms,' which are not supposed to be 'abridged' or 'infringed' (in the case of the 15th not even partially based on race). I think it's pretty clear that none of these mean that every and all conceivable restriction is barred. Even a free speech absolutist would likely say the military could prohibit its members from telling the enemy our plans or that a mafiaso could threaten someone with arson or harm. Likewise there must be some things that might literally be restrictions on voting or speaking or keeping and bearing arms but which don't 'infringe' or 'abridge' the right. You could say the right to free speech is not the right to say whatever you want whenever you want however want, but rather is the right to engage in speech that does not involve direct threats, imminent harm to your fellow citizens, defame others, etc. Likewise some kind of similar analysis will have to occur to find out what the 'right to keep and bear arms' means, and what it doesn't. One could come to a conclusion for non-partisan reasons that might seem to allow more restrictions on this right than that right.

Having said that, I agree that as an empirical matter too many people let partisanship decide these matters in a way that seems inconsistent. Some people like right X, and so they look for any evidence to validate reading it as broadly as possible, then turn around and do the same thing to have right Y, which they just don't care for, read as narrowly as possible. That does seem wrong to me. Some currently debated gun control measures do strike me as motivated by a troubling amount of resistance to the basic holding in Heller and a desire to try to stymie the basic right (much like what goes on with the right recognized in Roe imo).
 

Since Mr. W., I will condense my remarks some.

First, the rape analogy to me doesn't work on more than one level. I don't think "rape" just is a neutral example, after all. This is more so since non-citizen voting is not the same thing as "illegal immigrant" voting. An example would be a non-citizen in no way illegally residing here with a citizen child having the right to vote in a school election.

Second, Brett in effect says that at least some id laws are not necessary especially given the minor issue at hand number-wise. In fact, he suggests it is done for partisan reasons. But, voting is a fundamental right - one expressly addressed multiple times in constitutional text and implicitly is fundamental to republican government - so this is problematic. It isn't simply some policy issue like good or bad tax policy. And, evidence was clearly shown that at least some id laws for at least some groups are unconstitutionally burdensome.

And, for various reasons -- burdening the rights of others because they vote the wrong way is a First Amendment problem too. Finally, Brett's final comment has a two wrongs make a right sentiment. But, two wrongs don't make a right.
 

As to Mr. W's second comment, basically, different groups have different concerns, even if they use general language. Republicans, e.g., at times use anti-government rhetoric, but they tend to be conservative or at least disagree only on the type of government involved. The differences turn out not to be buzz words and thus a full expression of views requires extended comment. Democrats use general terminology at times in a misleading way too.

There is some hypocrisy involved -- and some gambling in Casablanca -- but also deep divisions in constitutional expression. These are deep debates, trivialized by some as one side being duplicitous. This sentiment goes back to our Founding. There are various ways in place to balance this out some, to protect a range of rights in this reality. There are different lines.

An unnecessary photo id requirement passed largely for partisan reasons that a detailed record shows burdens various groups in ways the Constitution says is illegitimate (not just blacks) is not the same thing as any sort of id requirement. Banning a handgun is not the same thing as some background check regime that applies to all sales, point of sale regulations accepted as legitimate in Heller. A forced ultrasound is not the same as a waiting period after you talk to the doctor over the phone. And, I'm not saying all of this is good policy or even without any constitutional problems if done in a certain way.

But, it's a matter of perspective.
 

Mr. W:

The Constitution does not expressly mention a right to vote until the 14th and 15th amendments, which guarantees the right to vote to citizens. It is true that some states extended the right to vote to non-citizens until every state adopted an express prohibition by the 1920s. I would argue that the 14A and 15A's limited grant of the right to vote to citizens implies that non-citizens may not vote in federal elections.


 

Shag:

As promised, here is some reading concerning the 1920 recession and the Roaring 20s economic expansion.

Lead up to recession:

Neil Irvin Painter, Standing at Armegeddon: The United States, 1877-1919 (New York: W.W. Norton & Company, Ltd. 1987)

Hugh Rockoff, Until It’s Over, Over There, NBER Working Paper 10580, June 2004

Recession:

James Grant, The Forgotten Depression (New York: Simon and Schuster 2014)

Robert P. Murphy, “The Depression You’ve Never Heard Of: 1920-1921,” The Freeman (November 18, 2009). http://fee.org/freeman/detail/the-depression-youve-never-heard-of-1920-1921

Thomas E. Woods, Jr., “The Forgotten Depression of 1920,” Mises Daily (November 27, 2009). https://mises.org/library/forgotten-depression-1920

Roaring 20s:

Gene Smiley, “The U.S. Economy in the 1920s,” EH.net http://eh.net/encyclopedia/the-u-s-economy-in-the-1920s/

Veronique de Rugy, “1920s Income Tax Cuts Sparked Economic Growth and Raised Federal Revenues,” Cato.org (March 4, 2003). http://www.cato.org/publications/commentary/1920s-income-tax-cuts-sparked-economic-growth-raised-federal-revenues



 

"It is true that some states extended the right to vote to non-citizens until every state adopted an express prohibition by the 1920s."

Of course, some localities still grant non-citizens the vote today.

"I would argue that the 14A and 15A's limited grant of the right to vote to citizens implies that non-citizens may not vote in federal elections."

You could, but it would be a quite weak argument. Those amendments simply tell states on what criteria they *cannot* deny the vote, they don't say anything about who the states can extend the vote to. Before the 14th, 15th and 19th Amendments states could extend the franchise to blacks and women. For example, a law which says a business can't deny service based on race doesn't mean that it can't offer services to women or gays.
 

Mr. W:

One of the basic rules of textual interpretation of laws is that, when the drafters limit a grant of power or a right to a subset of the population, they intended to exclude groups which are not included in that grant.
 

You're confusing the right granted by those amendments and the power of the governments which are restricted and non-restricted. Non-citizens are excluded from the protections of the 14th, 15th and 19th, of course, and governments are restricted in their ability to deny citizens the right to vote on the listed criteria, but that doesn't mean the governments to which those amendments apply can't extend the franchise to non-citizens if they desire.

It's a pretty odd thing to see a self professed libertarian argue that if something isn't guaranteed as a right that means the government *must* prohibit it!
 

In other words, while of course non-citizens are excluded from being able to *assert* the right to vote enumerated in the 15th and 19th, governments are in no way restricted by those Amendments in granting the privilege of voting to them. Non=citizens couldn't complain if they were denied the franchise, but the governments are not restrained in extending it to non-citizens if they desire.
 

"The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."

This could in practice mean -- if a state allowed non-citizens to vote in said branch -- that by constitutional rule non-citizens would have a right to vote for members of the House of Representatives. Separately, Congress does have a power to set forth rules overriding state electoral rules, thus the citizenship rule Mr. W. cited, but that is merely an act of discretion.

Also, the 14A only explicitly spoke of a "right to vote" in respect to a penalty provision (never applied) which only applied to "males." But, this (cf. Brett's rape analogy to allowing non-citizens to vote) didn't mean voting inherently was only for males. Various places did give women the right to vote pre-19A.

Minor v. Happersett (1875) can be used to get a judge of original understanding, though the theme seems to be that is a "fwiw" affair. Still, notable case:

Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.

The laws were not superseded by the Reconstruction Amendments.
 

As in regards to state or local office, I would actually say you're right. In regards to federal office, no.

But I notice that the feds are insisting, in the case of Arizona, that states not maintain separate voter qualifications for state and federal offices. Doesn't that apply here?
 

Our own MRO (Macro 'Rhoidless One) provides an Austrian economics menu of libertarian/laissez-Faire fluff that even peanut butter cannot make palatable. Our own MRO locks himself into a history that was unfair to so many, including farmers and immigrants. Yes, some few made out very well in the Roaring Twenties as a few also benefitted during the late 19th century The Gilded Age, the latter being in the mind of our MRO America's best days and the former second best.

For those seeking contrasts with the Austrian school of economics, check out this website:

http://socialdemocracy21stcentury.blogspot.com/2010/10/us-recession

and note economist Christina Romer's work on the 1920 Recession.

Our own MRO relies upon the dark ages of Austrian economics rather than the enlightenment of Keynesianism.

By the Bybee [expletives deleted], how is Austrian economics doing in Europe?
 

The Great Depression, the 1970s stagflation, and the current depresion are examples of the "enlightenment of Keynesianism."

Romer projected that Obama's borrow and spend spree spun as the Stimulus would result in twice the actual economic growth and would return us to full employment in 2011.

I deal in reality, not an economic school with a long and illustrious history of failure.
 

Austriian (aka classical free market) economics has never been tried in Europe and certainly not by the progressive EU.
 

The exact provision:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

So, my comment applies to federal elections. Congress does have the power to regulate state elections in pursuance of other provisions such as the Fifteenth Amendment. But, it is not as broad -- Oregon v. Smith, e.g., upheld the power of Congress to require those over 18 to vote in federal elections. But, since that was not required, not for state elections.

Thus, the Arizona rule would turn on the details. Arizona v. Inter Tribal Council of Arizona addressed a requirement as to federal elections. In fact, the opinion seems to suggest the federal government could not -- over a state's desire -- totally bar non-citizens from voting in federal elections. It separated state power over QUALIFICATIONS from the "time, place and manner" criteria.

Note the text of 18 USC 611: Voting by aliens:

(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless-

(1) the election is held partly for some other purpose;

(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and

(3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.


So, the law itself assumes non-citizens can vote in state elections. The law also has an exception to a narrow class of aliens who vote and reasonably were mistaken of their citizenship.

Mr. W. noted some places allow non-citizens a right to vote. Does he have a citation?
 

ETA: Scalia's dicta on qualifications is of unclear reach and arguably the Congress has special power over aliens above and beyond normal election rules.
 

Joe, excellent examples of how Bart's reading is not only unsupportable by logic but also text. Here's another example that comes immediately to mind: Kentucky, like many other states, has an amendment in their constitution that states that protects the right of 'citizens of the state' to hunt and fish. Under Bart's absurd reasoning Kentucky would be prohibited from allowing non-citizens to hunt and fish in the state! Of course that's nonsense. Non-Kentucky hunters and fishers couldn't invoke the Amendment if Kentucky decided to deny them hunting and fishing, but of course Kentucky is free to, and does, allow non-state citizens hunting and fishing in the state.

Here's a citation of localities that allow non-citizens to vote in at least some local elections:

https://en.wikipedia.org/wiki/Right_of_foreigners_to_vote_in_the_United_States#Places_where_non-citizens_can_currently_vote
 

Mr. W:

I argued above that the 14A and 15A implied that non-citizens could not vote in federal elections. The federal statute to which Joe cites (18 USC 611) takes the same approach.

As to your analogy, Kentucky does not have the power under the Constitution to limit interstate commerce in the way you hypothesize.
 

Bart, at the rate you're digging in this hole, we'll soon see China ;)

Kentucky, or any state, could, absent their amendment (or possibly some sort of substantive due process claim) certainly restrict or prohibit the act of hunting within their state by citizen and non-citizen alike. The amendment bars them from prohibiting hunting for their citizens. But the argument is more one to show how silly the reading you've made of the text of the 14th and 15th Amendment is. According to your 'logic,' since the 'grant' of the right to hunt was limited to a subset (citizens of the state) then groups not included in the grant are 'excluded,' by which, in the voting context, you've absurdly interpreted as 'prohibited.' So the analogy is actually spot on, according to your logic the Kentucky right to hunt and fish amendment 'implies' that non-citizens can't hunt in Kentucky! I hope you see how absurd your stance here is.

Let me lay it out side by side to prevent any further futile attempts to worm away from the conclusion.

15th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race (note in your reading, the grant of the right to the subset 'citizens' means those not named in the grant 'non-citizens' are 'implied' to be *prohibited* from voting

KY Amendment: The citizens of Kentucky have the personal right to hunt, fish, and harvest wildlife (so, according to your reading, the grant of the right to the subset 'citizens' means those not named in the grant 'non-citizens' are 'implied' to be prohibited from hunting, fishing and harvesting wildlife)

Let's also note how far afield we've come from the beginning, where you stated that the 'text' of the 15th Amendment was simple and straightforward, now here you are making some (cokamamie) argument based on what you think the text 'implies!' Not so simple or straightforward, eh? (note, definition for the word 'imply': 'to express (something) in an indirect way : to suggest (something) without saying or showing it plainly' (!)

"The federal statute to which Joe cites (18 USC 611) takes the same approach."

The federal government, the states and localities are all free to prohibit, *or allow* non-citizens to vote. It's up to them. So, so much for your notion that proving citizenship is a *necessary* part of voting.

 

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And take Joe's pointing out that in Sec. 2 of the 14th Amendment we find protection of the 'the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof...of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States..." According to your reading of the language above, this should mean that states would be *prohibited* from extending the right to vote to not just non-citizens, but women and those under 21*! So the many states that allowed female suffrage before the 19th were in violation of the Constitution according to your reading, as well as the states (like Georgia in 1943) which lowered their voting age requirement below 21 were all in violation of the US Constitution!
 

Joe,

See this story:

https://www.washingtonpost.com/local/takoma-park-stands-by-non-us-citizen-voting-law/2012/03/13/gIQAVBcgBS_story.html

"Del. Patrick L. McDonough (R-Baltimore County) of Middle River targeted Takoma Park after proposing legislation that would prohibit noncitizens from voting in municipal elections anywhere in the state. Five other municipalities, all in Montgomery County — Barnesville, Garrett Park, Glen Echo, Martin’s Additions and Somerset — allow noncitizens to vote, according to the Maryland Municipal League....Mayor Bruce Williams and others with key roles in the creation of the law, enacted on March 31, 1992, said it makes sense for people who have green cards, those who are working toward U.S. citizenship or in the country for diplomatic purposes, to be allowed to participate in local politics."
 

Thanks. I actually glanced at that Wikipedia link and the top says "Non-citizen voting in elections has been extinct since Arkansas became the last state to ban it in 1926," but if you scroll down, it turns out not to be. I also think at least for minor local things, the list is probably longer.

Baldwin v. Fish & Game Comm'n of Montana upholds a special burden on non-residents in respect to elk hunting licenses in the face of a Privileges and Immunities / Equal Protection Clause challenge. This followed, perhaps wrongly, long term practice. The reach of the Commerce Clause to a purely internal lake, e.g., would be long. It might be a problem in some types of hunting/fishing of an interstate character unless Congress expressly allows it.

But, that really confuses things -- the Alice in Wonderland flavor involved, however, is well known at this point. Still, the stuff is pretty interesting to me personally, so hard to resist adding my .02.




 

Mr. W:

If KY were a nation state and the right was created by the state constitution, then the limited grant of that right to state citizens would indeed imply that the right did not extend to non-state citizens.

The problems with your analogy are (1) KY is not a nation state and is subject the the national Constitution, and (2) the right to hunt on your own property was a preexisting freedom and was not created by the constitution.

Let me discuss the latter problem for a moment.

The Constitution creates the elected bodies of government and the right to vote to elect them. The right to vote does not exist absent the Constitution. The Constitution can, thus, limit that right any way it chooses.

The original Constitution simply assumed a right to vote and did not discuss its limits.

The 14A and 15A expressly stated that the right to vote was extended to male citizens and the 19A extended that right to female citizens. In all cases, the resulting voting right was limited to citizens.
 

"If KY were a nation state and the right was created by the state constitution, then the limited grant of that right to state citizens would indeed imply that the right did not extend to non-state citizens."

That's a ludicrous way to read such language. Absent the grant of the right (to vote, to hunt, whatever) the grantor is free to allow or prohibit the activity, after the grant of the right they are no longer free to prohibit the activity, but they remain free to allow it. You're totally misunderstanding the rule you're invoking: the named group is guaranteed the right and the not named group is not, but the not named group can be *given* the right.

"The 14A and 15A expressly stated that the right to vote was extended to male citizens"

So when states, like Washington state, extended the franchise (including federal elections) to women in 1910, they were in violation of the US Constitution? It's a ridiculous position Bart.

 

The only thing the non-named group is excluded from is the guarantee of what the right protects, for those not named it can still be given.
 

Mr. W: "You're totally misunderstanding the rule you're invoking: the named group is guaranteed the right and the not named group is not, but the not named group can be *given* the right."

What agency exercising what power may extend the right to vote in federal elections to non-citizens?

Congress has the power to enforce the voting rights grants made in the 14A, 15A and 19A, but not to exceed that grant.

The states can determine who votes in their own elections subject to the limits of the 14A, 15A and 19A, but have no power to determine who votes in federal elections.

 

Keep digging that hole, Bart.

"The states can determine who votes in their own elections subject to the limits of the 14A, 15A and 19A, but have no power to determine who votes in federal elections."

Lol. Bart, this is flatly wrong. To take one example that shows this, think felons and voting.
 

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Mr. W:

State legislatures generally enact a standard set of voter qualifications for all elections.

To the extent that the standard departs from the federal voter qualifications set by the 14A, 15A and 19A, Congress has the power to enact laws overruling that standard.

The 14A, 15A and 19A do not address laws suspending or revoking felon suffrage and I am not aware of Congress addressing this issue with a law.

As Joe noted, Congress did specifically forbid states from allowing non-citizens to vote in federal elections in compliance with the federal voter qualifications set by the 14A, 15A and 19A.
 

LOL

""The states can determine who votes in their own elections subject to the limits of the 14A, 15A and 19A, but have no power to determine who votes in federal elections."

vs.

"State legislatures generally enact a standard set of voter qualifications for all elections."

Of course, at this point Bart might have some bizarre definition of 'all' we can expect...


 

Mr. W:

All means all.

There is no conflict between my two statements.

To the extent that a state legislature enacts a standard for voters which differs from the limits of the 14A, 15A and 19A, they lack the power to do so.
 

"There is no conflict between my two statements."

"the states...but have no power to determine who votes in federal elections."

"State legislatures generally enact...voter qualifications for all elections."

States have NO power to determine who votes in federal elections but states enact voter qualifications for ALL elections. Yeah, no conflict there!
 

"What agency exercising what power may extend the right to vote in federal elections to non-citizens?"

Whether non-citizens can vote in federal or state or local elections is a decision left to Congress, state legislatures and local governmental bodies. Non-citizens were in various places in the US granted the vote at every level throughout our history with no challenge to its constitutionality. The suffrage amendments did nothing to change this, they are about who may not be excluded, not prohibitions on who may be included. Before the 15th Amendment some states granted the franchise to blacks, before the 19th Amendment states granted the franchise to women (this included voting in federal elections). Your theory has no support in text, logic or history, in fact it is in conflict with them.
 

I should add, 28 years before the 26th Amendment, Georgia granted the franchise, including in federal elections, to 18 year olds and up.
 

Mr. W:

States do not enact separate voter standards for state and federal elections. They enact a single set of qualifications.

To the extent the state standard violates the Constitution and the US Code, it is illegal. CA has no power to set federal voting standards.

Thus, if California decided to enact a standard allowing non-citizens to vote, it would be legal for state elections and illegal for federal elections.

Get it?
 

Sorry, Bart, you're wrong again.

"Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The latter is the province of the States."

https://www.law.cornell.edu/supremecourt/text/12-71
 

Some source materials for anyone following the discussion:

Source indicating that Washington state women voters voted in federal elections before the 19th Amendment passed:

http://www.historylink.org/index.cfm?DisplayPage=output.cfm&File_Id=5589

And the text of the 1910 Washington state Amendment authorizing women to vote in "all elections"

https://ballotpedia.org/Washington_Women's_Right_to_Vote,_Amendment_to_Article_VI_Sec._1_%281910%29

Source indicating voters below 21 years old voting in the federal elections in Georgia in 1944, well before the 26th Amendment:

http://library.cqpress.com/cqresearcher/document.php?id=cqresrre1944090900

Source indicating that New Jersey gave women the franchise to vote, including in federal elections, from 1790-1807

http://www.rutgerslawreview.com/wp-content/uploads/archive/vol63/Issue3/Lewis.pdf

Source, Porter's History of Suffrage, written in 1918, where Porter, no fan of enfranchising aliens, writes "The press in various parts of the country has become excited over this situation at the present time (February, 1918), and many people seem to think that a startling discovery has been made, for aliens can now vote in seven states of the Union. Certainly it cannot be considered a novel situation, for aliens have voted for congressmen somewhere in the United States for seventy years." (showing the practice both pre and postdated the suffrage amendments)

https://books.google.com/books?id=bY1JAAAAIAAJ&printsec=frontcover&dq=Porter+A+HISTORY+OF+SUFFRAGE+IN+THE+UNITED+STATES&hl=en&sa=X&ved=0ahUKEwjw9o3WxJbKAhVLkh4KHeVJDzUQ6AEIHTAA#v=onepage&q=Porter%20A%20HISTORY%20OF%20SUFFRAGE%20IN%20THE%20UNITED%20STATES&f=false

 

Mr. W:

I am not citing the Elections Clause, which only applies to the time, place and manner of federal elections.

Rather, I have been citing the 14A, 15A and 19A citizenship requirements and Congress' power to enforce these.
 

"I am not citing the Elections Clause, which only applies to the time, place and manner of federal elections."

No, you said this: "CA has no power to set federal voting standards."

and this: "the states...have no power to determine who votes in federal elections."

And those statements are demonstrably wrong. As Scalia says, "the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The latter is the province of the States."


"I have been citing the 14A, 15A and 19A citizenship requirements and Congress' power to enforce these."

Right, and those are in no way responsive. They mandate who the states may not exclude, they say nothing about who they may include.
 

You have no textual basis. Nor a historical one. Non citizen voting in federal elections pre and postdated the 14th, 15th and 19th Amendments. You can cite no SCOTUS decision in which the practice was successfully challenged, and SCOTUS was well aware of the practice, citing it's prevalence explicitly in cases like Minor v. Happersett (decided seven years after the 14th and five years after the 15th).
 

Mr. W:

You are misapplying Scalia's observation concerning the Elections Clause to the 14A, 15A and 19A. These Amendments expressly limit state power to define voters.

Congress was almost certainly exercising its power under these amendments by enacting 18 USC 611 to forbid aliens from voting in federal elections.
 

Mr. W:

There is a long history of states violating various provisions of the Constitution for decades or even centuries until Congress or the federal courts stopped them. See the First and Second Amendments.

Congress did not act to stop non-citizens from voting in federal elections until enacting 18 USC 611 in the 1990s.

The federal courts never ruled on the issue that I am aware.
 

"These Amendments expressly limit state power to define voters."

They limit who the states may exclude, they say nothing about who they may include.

Of course, you're backpedaling considerably while moving goalposts. Here is what you said, once again: "CA has no power to set federal voting standards."

and this: "the states...have no power to determine who votes in federal elections."

These are demonstrably incorrect statements. "who may vote" in federal elections "is the province of the states." Yes, in deciding who may vote they are limited by the suffrage Amendments, but they are only limited in who they may not exclude to those named criteria (citizens on the basis of race, sex and age), they are not limited in who they may include.

 

As I said, you can find no SCOTUS decision ruling against it in the long practice of it. SCOTUS explicitly notes it post-suffrage amendments, mentioning no problem with the practice (in fact, partly relying on it in its opinion). The dearth of challenge of it is likely due to the conclusion, held by even opponents of the practice, that it was 'obviously constitutional' (the words of Porter from the source above). It was fought in the realm of policy rather than the courts as it had no chance in the latter, there being no textual language or historical practice in support, but explicit language to the contrary.
 

"to the extent that the standard departs from the federal voter qualifications set by the 14A, 15A and 19A, Congress has the power to enact laws overruling that standard."

Additionally, this reflects a confused understanding of these suffrage Amendments, they do not only dictate who the states may not exclude from federal elections, they do so for state and local elections as well.
 

Mr. W: "They limit who the states may exclude, they say nothing about who they may include."

I will offer my final words on that issue in latin: expressio unius est exclusion alters.


 

This comment has been removed by the author.
 

And I will answer this easily: the GUARANTEE of voting not to be barred by race, sex or age is limited to the citizens named in the expression, but there is no limitation on who the states may be GIVEN the vote.

You fundamentally misunderstand what's being granted: a right. With the grant of a right there is a guarantee, without there is a choice of whether to give or not.
 

It is curious that Mr. W. is the stronger supporter of state rights here.

A couple things. First, the "14A" is being cited a lot. The 14A defines citizenship (overturning Dred Scott), protects privileges or immunities of said citizens, but it has not been held that citizenship alone give you the right to vote. Fifteen year old citizens can be protected by our diplomats, as citizens, e.g., but not have a right to vote. Some argued otherwise, but they lost the battle, and this is why various amendments such as the 15A were ratified.

The Equal Protection Clause in time was held to apply to political rights in a broad sense, so voting rights have been protected that way. Likewise, voting was seen as a "liberty" under the Due Process Clause that could not be denied without good cause. So, even though the 24A only applies to federal elections, poll taxes in state elections were held to be unconstitutional.

But, the express "right to vote" provision is the second section and is merely a (never used) penalty for states if they deny certain people the right to vote. They can do it. They merely would have a smaller delegation in Congress. It is somewhat akin to denying federal funds to states if they don't do something.

The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

Again, it is quite possible for non-citizens to vote here. Given dicta in the Arizona case I cited in fact can reasonably be interpreted to mean that even the federal barrier to non-citizens voting in such elections is illegitimate if a state's most numerous branch is elected by non-citizens too.

And, this is just me here, broad arguments can be made too such as a 14A argument as "persons" to have a right to vote for a school election if your kid goes there. At least, it seems perfectly sane policy. Including a school in D.C.
 

The Arkansas state Constitution states "Arkansas: The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5"

So according to Bartlogic before Heller Arkansas laws allowing tourists, businesspersons, and hunters from out of states to keep and bear arms were violations of their Constitution! Also, since a right to concealed carry has not been recognized yet, it appears Arkansas' reciprocal concealed carry provisions are, according to Bartlogic, forbidden by their state Constitution!

Ludicrous.
 

Ha. Who is the true Bartbuster?
 

Ha. Who is the true Bartbuster?
# posted by Blogger Joe : 12:19 PM


I'm mostly just here to mock him. I very much enjoy watching others crush him.
 

To channel BB, once again:

"John McCain's thoughts on "natural born citizen" are great news for Ted Cruz."
 

The person who reads too much and uses his brain too little will fall into lazy habits of thinking.
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