Stupid Originalist Tricks
Why should liberals expend energy bashing conservatives – when conservatives do the job so much better? This week, the Field Guide takes aim at “originalism,” to again demonstrate that conservatism, at its roots, has no principles. It is not a political philosophy – it’s just a bunch of crap packed together by historical accident, and held together through a firm commitment to not thinking it to death.
Originalism, nominally, holds that the US Constitution should be interpreted the way the people who wrote it and-or ratified it would have interpreted it. Take the 14th amendment’s birthright citizenship clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Hard to imagine how anyone who ever complained about judicial activism could suggest that the 14th amendment means anything but what it says: if you are born in the US, you are a US citizen. But it hasnt prevented conservatives from claiming that the US-born children of illegal aliens are exempt from the 14th amendment’s plain meaning.
Their argument seizes on the “subject to the jurisdiction thereof” requirement, somehow asserting that illegal aliens are not subject to US jurisdiction. Anyone who knows a little bit about law should know what the consequence of that would be. It would mean that illegal aliens could not be tried for any crime, nor compelled to appear for civil disputes either. They would have the same immunity as do diplomats (the actual, intended targets of the jurisdiction requirement), who can be expelled from the country, but cannot be brought to court to answer for their misdeeds. If that sounds crazy, wait – there’s more.
At the time of the 14th amendment’s ratification, the US had never had an illegal alien. The borders were open, and had been since colonial times. Anyone could emigrate to the US – and, under the common law, their children automatically became citizens. How could the writers and ratifiers of the 14th amendment possibly have intended an exception for a class of people that didnt exist!?
Moving on to the next stupid originalist trick: If you saw the GOP debate, you may have caught Marco Rubio advancing the loopiest anti-abortion argument to date. Per Rubio, the 5th amendment’s due process clause,
No person shall… be deprived of life, liberty, or property, without due process of law….
applies to fetuses and embryos. And so we dont need state or federal anti-abortion statutes – abortion is already illegal under the US Constitution – we just need five justices to say so.
We happen to know that Rubio is an originalist, because after the Supreme Court’s decision in Obergefell, (legalizing gay marriage nationwide), Rubio said,
It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.
So did the 5th amendment, “as written and originally understood”, really include fetuses and embryos as “persons” – and outlaw abortion from way back in 1791?
To answer that question, it helps to know that abortion was legal in all 13 states at the time the Bill of Rights was adopted – as it had been in all 13 colonies previously – as it had been for several hundred years under the common law. And so Rubio will have to find some other pretext for his political beliefs. Or he can simply abandon originalism, and interpret the Constitution according to some other style. We at the Field Guide are betting that he does neither – self-contradiction, after-all, is the conservative way.
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Race, Religion and Madness
There is a double-standard at play, with respect to our understanding of the Charleston killer. Though his act and his stated motivation conforms squarely within the legal definition of terrorism, many do not regard him as a terrorist, but as a common criminal – yet another well-armed, mentally-ill American. If, for example, he had been an Islamist, he would have been unequivocally identified as a terrorist, as were the conspirators behind the Boston Marathon and Charlie Hebdo attacks.
Consider this partial definition of terrorism, from the FBI’s website:
“Domestic terrorism” means activities… intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.
The definition calls for a specific act and an accompanying mental element. There’s no debate on the act. As for the intent, the accused put out a lengthy statement, declaring his racial and political beliefs and goals. And thus there can be no serious question as to whether what occurred in Charleston fits the legal definition of terrorism. It does, and obviously so.
And so we come to the curious reaction of many – including FBI director James Comey – who would not regard the accused as a terrorist, but as a mere criminal, and quite possibly insane. What’s happened is that white supremacy, as a political movement, has become so alien to mainstream America, that it’s no longer comprehensible as a cogent political philosophy.
Those who commit acts of violence in furtherance of white supremacy are not afforded the dignity of being labeled political activists. Rather, they are belittled as kooks and-or criminals. We make no attempt to meet or comprehend their arguments – we summarily dismiss them as the product of ignorance, at best, if not madness. This is progress.
In the first half of the 20th century, the white supremacy movement was a basic part of the American political landscape. One-time Klan members included President Truman, Supreme Court Justice Hugo Black, and Senator Robert Byrd. Today, its adherents no longer seem like political actors, but as crazies, who might as well be wearing tinfoil hats in place of white hoods. This, again, is progress.
By comparison, they who commit indistinguishably insane acts under the auspices of religion are called “extremists” or “radicals.” Instead of likewise dismissing them as criminals and crazies, Islamist terrorists are dignified as political activists. While white supremacy has been dispatched to the dustbin of bad ideas, killing in furtherance of religion still has a recognizable logic, such that its advocates are not immediately identified as insane, criminally or otherwise.
What constitutes sanity or madness in a given time and place is informed by cultural and social norms, and even economics, and always has been. Michel Foucault filled three hundred pages adding window dressing to this simple observation, in his tedious classic Madness and Civilization. That we might treat the Charleston shooter as a mere criminal, or a madman, is an improvement. One hopes that we, as a society, will come to see violence committed in the name of religion to be no less mad.
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No Freedom to Discriminate
The US Supreme Court seems poised to end state bans on gay marriage in the few states that still do not permit it. Under the 14th amendment, states are not allowed to deny “equal protection of the laws” to any person. As distinctions between traditional marriage and same-sex marriage wither under scrutiny, state bans on same-sex marriage become ever more apparently a bald denial of equal protection, and will very likely be declared unconstitutional by the Court when it renders its decision in the coming months.
But just as one form of discrimination is about to be stamped out, another is trying to emerge. Such discrimination occurs in a commercial setting – when, for instance, a gay couple goes to a baker for a wedding cake, and the baker refuses. (This is analogous to racial discrimination from the Jim Crow era, when a black person seeking a room in a whites-only hotel could be turned away by the manager.) Unlike bans on gay marriage, which are perpetrated by the government, this form of discrimination is committed by private citizens – and there’s no federal law against it.
While the Bill of Rights and the 14th amendment secure individual rights against federal, state and local governments, they are generally inapplicable to the rights we hold with respect to each other. That’s why the US needed the Civil Rights Act of 1964 to end apartheid. Under federal law, before the Civil Rights Act, the proprietor of a shop could turn away any prospective customer or employee for any reason whatsoever. One could choose to serve and-or hire blacks only, whites only, Catholics only, Jews only, etc. – and the US Constitution had (and still has) nothing to say about it. While the Constitution forbids governments from maintaining whites-only buses, or blacks-only universities, it allows private parties to do as their conscience (or lack thereof) dictates. It is because of the Civil Rights Act – not the Constitution – that private parties cannot discriminate on the basis of “race, color or creed” in the course of operating a business.
While red states lag far behind blue states in virtually every socioeconomic measure, they are great innovators of bigotry and intolerance. The Supreme Court’s unfortunate decision in Hobby Lobby gave conservatives a new not-so-bright idea. The Court held that closely-held corporations can refuse to provide their employees with health insurance coverage for birth control, if doing so ran afoul of their “religious beliefs.” In other words, a corporation’s Constitutional “religious freedom” takes precedence over a federal law requiring them to provide insurance coverage for family planning.
Enter the “Religious Freedom Restoration Acts” (RFRAs) now working their way through state legislatures across the country. On their face, they seem innocent – as was the original RFRA passed by Congress in 1993, and signed into law by Bill Clinton. The idea was to give people the right to refuse certain impositions on the part of the government, when they conflicted with their religious beliefs. But a few red states got the notion to expand the application of these laws to private parties as well. And so if a gay couple asks a baker to bake them a cake, the baker might be able to rely on a state RFRA to refuse. The analog to Hobby Lobby is unmistakable, as it should be. Conservatives thought they found a new lipstick for their pig: by dressing up bigotry in the garb of religious freedom, maybe they could sneak it past the courts, and engender a whole new era of discrimination.
Indiana and Arkansas seemed bent on passing RFRAs that facilitated this new form of discrimination. And then something remarkable happened: corporate America rose up in opposition, and the GOP in both states were cowed into amending their laws so that bigots could not rely on them to discriminate.
The US Supreme Court has yet to hear a case on whether one can invoke ones religious beliefs to discriminate against others on the basis of their sexual orientation. Many states afford no protections for gays from discrimination. And Congress has thus far failed to pass a Civil Rights Act for gays. But it is heartening to see this new form of bigotry beaten back by public opinion. The LGBT community assuredly needs a federal Civil Rights Act affording them full protection from commercial discrimination, nationwide. And the road to that destination just got a bit smoother.
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4 articles with comprehensive coverage of RFRAs: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/01/the-twisted-history-of-how-religious-freedom-laws-confused-everybody/
Case Closed in Ferguson
In the end, US Attorney General Eric Holder had to pass on Ferguson. Because of the way the law is written, it’s almost impossible to convict a cop who can reasonably assert that he feared for his safety. And so long as a victim isnt cuffed, a cop who claims he was afraid is going to get off.
However the public should be aware of the strength of the case against former Ferguson police officer Darren Wilson. While the Field Guide does not have access to the Department of Justice’s records for the investigation, we were able to find the informal testimony of 9 witnesses, one of whom says one thing, and the other 8 say something else. The odd man out, of course, is Wilson himself.
According to Dorian Johnson, Wilson exited the vehicle, and fired several rounds at the fleeing Brown, hitting him once in the back. Brown turned around with his hands raised and said, “I dont have a gun. Stop shooting!” Wilson then shot Brown several more times, killing him.
According to Michael Brady, Brown was “balled up” with his arms under his stomach and he was “halfway down” to the ground. As he was falling, Brown took one or two steps toward Wilson – presumably because he was hit and stumbling forward. Wilson then shot him three or four times.
Piaget Crenshaw said that Wilson chased Brown for about 20 feet before shooting him again. “I saw the police chase him down the street and shoot him down. When Brown then raised his arms, the officer shot him two more times, killing him.”
Tiffany Mitchell said that after the first shot was fired, Brown started to run away. “After the shot, the kid just breaks away. The cop follows him, kept shooting, the kid’s body jerked as if he was hit. After his body jerked he turns around, puts his hands up, and the cop continues to walk up on him and continues to shoot until he goes all the way down.”
James McKnight said that Brown held his hands in the air just after he turned to face Wilson. He stumbled toward the officer, but didnt rush him, and “the officer was about six or seven feet away” from Brown.
Phillip Walker said he saw Brown walking “at a steady pace” toward Wilson with his hands up and that he “did not rush the officer”, adding that Wilson’s final shot was from a distance of about four feet.
Emanuel Freeman stated that Wilson fired twice at Brown while he was running away, and five more times after he turned around to face Wilson.
A construction worker, whose reaction to the shooting was a youtube sensation, said that Brown began walking toward the officer with his hands up, at which point Wilson began firing at Brown and backing away. After the third shot, Brown’s hands started going down, and he moved about 25 feet toward Wilson, who kept backing away and firing. The worker was unable to discern if Brown’s movement toward the officer was “a stumble to the ground” or “okay, I’m going to get you, you’re already shooting me.” The worker disputed the claim that Brown rushed at the officer, “I dont know if he was going after him or if he was falling down to die. It wasnt a bull rush.”
There’s also a medical examiner’s report. While the ME says that her report is consistent with the scenario that Brown reached for Wilson’s gun, she added, “I’m not saying that Brown going for the gun is the only explanation.” In other words, her report is consistent with Wilson’s testimony, but also with that of the 8 witnesses above.
In the end, forensics could not resolve three key issues: (1) the range from which the head shots were fired, (2) whether Brown was approaching fast or slow, or (3) whether Brown had his hands up and extended from his body. Those issues can only be resolved by witness testimony – and not one witness, except Wilson, says that Brown was rushing. Not one says Brown was as close as Wilson claimed when he took the final shots. All say Brown was either approaching slowly, or stumbling. Most say his hands were out. Not one says that Brown reached for the gun.
The law is what it is, and we cannot complain if good laws sometimes produce undesirable results – all laws are imperfect in this way. But while the law has spoken, and the case is closed on Ferguson, let it not be suggested that justice has been done.
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Staten Island Uglier
Take Ferguson’s victim, Michael Brown. Make him 25 years older and morbidly obese. Subtract the fact that he’d just robbed a convenience store. Remove conflicting claims that he initiated the attack. Now add a minute to the video recording from before the police attack began, to underscore just how banal and non-threatening the situation was. And toss in 4 more cops (!) so Brown is obviously outnumbered and surrounded – not to mention unarmed – helpless to do anything but beg for mercy.
Last, in place of two gunshots to the head, add a chokehold, with
Michael Brown Eric Garner pathetically gasping “I cant breathe” – the last words he’ll utter before being asphyxiated by the combined efforts of five (5!) New York City policemen.
We’re not done. If you havent yet seen the video of Garner’s murder, please watch it to the end (linked below). As extraordinary as was the barbarity of his killing, the callousness of NYPD officers in the aftermath is no less spectacular. Garner lies on the sidewalk, not moving, not breathing and still handcuffed for more than 6 minutes. A neither-the-best-nor-brightest EMS responder encourages him to be a good sport and get on up. No attempt is made to revive Garner. From the 10 or so NYPD officers at the scene, there is no expression whatsoever of urgency, much less that a man’s life is at stake, if not already lost.
For all the ways that Michael Brown’s killing has been made to seem contentious, Eric Garner’s cannot be. Garner had neither attacked nor threatened to attack anyone. He spent his last moments civilly pleading his case to NYPD officers, asking that they leave him alone to mind his own business. Police say they suspected him of selling untaxed cigarettes – a regulatory offense! (How many BP executives were killed by the police following their little regulatory goof in the Gulf? How ’bout Enron? BOA?) Witnesses say cops only approached Garner after he’d done a good deed, breaking up a fight.
When 5 NYPD officers attacked, video shows that Garner went down – all 350 lbs of him – without taking a swing, trying to run, or resisting in any way. In fact, even when he had 4 cops on top of him, he kept a free hand outstretched, palm up, to show that he was unarmed and not trying to resist. One cop immediately goes for the throat and hangs on, despite Garner’s repeated “I cant breathe” pleas; eventually the cop releases the choke hold, pinning Garner’s face to the sidewalk instead, as the other four hold him down and cuff his hands behind his back.
The official New York City coroner’s report ruled Garner’s death a homicide, caused by “compression of his neck (chokehold), compression of his chest and prone positioning during physical restraint by police.” It also mentions Garner’s asthma, heart disease and obesity as contributing factors.
Of course the punchline is, as with Michael Brown’s homicide, that the grand jury failed to indict any cop for any crime. Which is why New York State Attorney General Eric Schneiderman wants his office to investigate Garner’s death. The cozy relationship between local prosecutors, and the police departments they necessarily rely on to do their work, has rightly been called into question by the Brown and Garner cases, in which unarmed black men were killed by white cops, and prosecutors failed to obtain grand jury indictments.
The larger story is that 20 people are killed by cops in America every week. The issue is greater than one of racist cops and black victims – it’s about a nation with 750,000 armed police officers, and the failed effort to see to it that they protect and serve their communities, not terrorize them.
Watch the video of Garner’s killing: https://www.youtube.com/watch?v=g-xHqf1BVE4
(The actual video of Garner’s killing runs approximately from minute 1 to minute 5 – we tried but could not find a posting on youtube that was free of third-party commentary.)
Next watch the aftermath of the killing: https://www.youtube.com/watch?v=vT66U_Ftdng
(Unbelievably, Garner lies on the sidewalk, not breathing and cuffed, for more than 6 minutes – and NYPD does nothing to attempt to revive him. Dont try imagining just how long a time that is – watch it, so you can share the disgust experienced by everyone who has.)
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Detroit Gets a Treatment, Not a Cure
Sixteen months after becoming the largest-ever US municipality to enter bankruptcy, Detroit has a court-approved plan to move forward, and is poised to move ahead with several billion dollars less debt, plus new aid commitments from the state and federal governments. But nothing has been done to fix the underlying problem: that the “City of Detroit” is a legal fiction – an anachronism with no bearing whatsoever on the region’s physical and economic facts.
Detroit’s history follows both the rise of the automobile industry and the use of the automobile itself. Detroit grew from a modest-sized town in 1900 to become the 5th largest city in the US in 1950. But then the course of the city and the auto industry diverged. While the industry continued to expand, new plants were built in Detroit’s suburbs. Workers took advantage of cheap cars and better roads to head to the suburbs too.
The depopulation of midwestern cities is not unique to Detroit. Almost every midwestern city has lost between twenty and sixty percent of its population since 1950. The larger metropolitan areas have kept right on growing – it’s only the cities that have shrunk. While the city of Detroit today has about one-third the population it had in the early 50s, the larger Detroit region is now forty percent more populous.
The difference is the automobile and the US highway system. Before the age of cheap transport, economic realities forced people to live in town, close to work and needed services: schools, shops, family, etc. Since the 50s, people have had the option to live away from town, relying on cars and a modern road network to get where they need to go.
Newer American cities in the west have established their city limits in accordance with this new reality. The major cities of Texas are a good example. Austin and El Paso each have nearly the same area as New York City. Dallas, Fort Worth and San Antonio are all geographically larger than New York City, and Houston is twice New York’s size. But those six Texas cities combined have fewer people than New York City. Unlike older cities in the east and midwest, Texas cities were were built around the automobile, and their sprawling incorporated limits reflect that.
The urban sprawl of cities like Detroit is, today, no less extensive – however most midwestern cities have literally left their incorporated limits unchanged since the days of the horse-drawn carriage. Detroit is about one-half the size of New York City, and has been for more than a century.
The people leaving midwestern cities since the 50s have been disproportionately affluent, because they can more readily afford cars and new houses in the suburbs. The people left behind are disproportionately poor. And because of the disparity between black and white incomes, and discriminatory business and banking practices, the net result is relatively white, affluent suburbs and relatively black, poor cities. This demographic trend is common to many major metropolitan areas across the midwest, including Detroit, Buffalo, Cincinnati, Milwaukee, St. Louis, and Cleveland.
In and of itself, this would not have been a problem if the larger metropolitan area were united within a single municipality. However suburbanites were able to escape the tax base of the city, while still using numerous city resources, from hospitals to roads to water supply and other elements of the city’s infrastructure. Detroit spent billions of dollars providing health, education and other services to people who would ultimately leave to become productive members of society elsewhere.
The real cure for cities like Detroit is the annexation of its suburbs – to bring political realities (the lines on the map) into accord with the social and economic reality: that city and suburb is a single entity, united by a common infrastructure and commerce. Detroit today is little more than the least desirable neighborhood in a much larger economic zone, of which it comprises less than 20% of the total population, and an even smaller fraction of the total land area.
Leaving the old municipal lines intact effects a ghetto, within which medical care and education are far inferior, predictably producing children who will lack the skills to be productive in a modern economy. The obstacles to incorporation of the suburbs are political, but they have been overcome in places such as Kansas City and Louisville. Detroit’s latest plan will get it out of bankruptcy, and improve things a little bit in the short term. But over the long haul it will only perpetuate an unjust and unproductive status quo.
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Michael Brown was 18 years old, 6’4″, nearly 300 lbs, and had just robbed a convenience store. He was also unarmed and, when he was shot several times and killed in broad daylight, was most likely approaching Officer Darren Wilson slowly with his hands up.
Eyewitness testimony is often contradictory, but is relatively consistent in this case. Witnesses saw Brown flee from Wilson while being fired upon. Then Brown stopped running, turned, and approached Wilson with his hands extended away from his body. Wilson fired a total of 12 shots, hitting Brown 6 to 8 times, including twice in the head. The last shot entered the top of Brown’s skull and killed him. It was taken at a range of 3 to 6 feet.
No witness has suggested that Brown was rushing at Wilson. Most agree that Brown was approaching slowly. None has corroborated Wilson’s claim that he told Brown to stop. The angle of the two headshots are especially telling. In addition to the fatal shot into the top of Brown’s head, another entered his right eye and continued downward through his jaw and into his collarbone. This is consistent with two very different scenarios: one in which Brown put his head down to charge; and another in which Brown stumbled forward. The latter case seems the most likely, given that it corroborates eyewitness accounts, and that Brown had already been shot four or five times, and had marijuana in his system.
The local prosecutor, Robert McCulloch, convened a grand jury that ultimately declined to indict Officer Wilson for any crime. However McCulloch’s grand jury tactics have been widely criticized as seemingly calculated to not produce an indictment. It has also been noted that this was the sixth time in six occasions that McCulloch failed to obtain an indictment in a police shooting. Perhaps not coincidentally, McCulloch’s father was a cop, killed in the line of duty.
Michael Brown is not a sympathetic victim. Surveillance video taken shortly before the shooting show him robbing a convenience store, using his enormous size in place of a weapon. He goes to the counter and seems to ask for something. He receives a package, which he hands off to his accomplice. Then he leans over the counter, and comes back with several more packages. Without paying, Brown turns to leave. At the shop door, he’s confronted by a clerk, who is a full head shorter than Brown. Brown brusquely pushes him away. When the clerk persists, Brown turns upon him threateningly. The clerk retreats, and Brown and his accomplice depart.
Sympathetic or not, there is reasonable evidence to infer that Michael Brown was the victim of police brutality, in a species of event that has become all-too-common in the US: the killing of an unarmed black man by the police. While local authorities seem to have disposed of the matter, US Attorney General Eric Holder continues his investigation, and it is fair to speculate that there is a significant chance that Officer Wilson will be prosecuted under federal law, which was written in part because some local governments cannot be trusted to render justice in cases involving a white perpetrator and a black victim.
This event is further a subset of an even more common event in the US: homicide by police. Remarkably, there are no official statistics on their frequency. But the best available estimates suggest that about 1000 people are killed by cops in the US each year.
The facts in Ferguson are ugly from every vantage point. Brown was a large, menacing criminal; however the evidence suggests that Officer Wilson, who is also 6’4″, used excessive force, and killed Brown without justification. Time will tell, but the process rarely affords us more than a crude approximation of what really happened.
Our best hope should be that events such as these, because they are so ugly, will force the issue of police brutality, particularly as it bears on race, into the national debate – so the US can begin to reign in its police power, to make it a better public servant, and less of a public menace. The framers and ratifiers of the Bill of Rights decided this issue 200 years ago. By bestowing fully half of the specific rights in the Bill on the accused, they made clear that an unchecked police power poses a far greater threat to liberty and security than do mere criminals.
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How Jim Crow Holds Florida
In denying the right to vote to criminals, even after they have been released from prison, the US is an outlier with respect to much of the world. Let alone allowing ex-cons to vote, numerous countries permit inmates to vote from prison, including Australia, Canada, the Czech Republic, Denmark, Finland, France, Germany, Israel, Japan, Netherlands, Norway, Poland, Romania, Serbia and Sweden. Among US states, only Maine and Vermont let everyone vote, including prisoners.
With America’s skyrocketing prison population, felony disenfranchisement affects an increasing fraction of the US population. While it denied suffrage to about 1 million Americans the in the early 70s, 3 million were disenfranchised by the mid-90s, and nearly 6 million are disenfranchised today. Across much of the south, upwards of 7% of the adult population cannot vote because of past convictions.
Relative to the irrevocable, lifetime disenfranchisement that the Constitution permits (for the moment), states are generally much more liberal about allowing convicted criminals to vote after they’ve completed their sentences, if not parole or probation. As usual, it’s regressive southern states who are the most unforgiving, with a few effectively disenfranchising convicted criminals forever.
Disenfranchisement disproportionately affects blacks. Across the country, about 8% of blacks, and some 13% of black men cannot vote – compared to about 2% of all other adults. Florida is the worst case of all. In 2011, its GOP governor gave the state the most extreme felony disenfranchisement law in the country. With just 6% of the US population, Florida is home to 25% of all of America’s disenfranchised. 20% of all blacks in Florida – and about 35% of all black men – cannot vote. One neednt wonder at the GOP’s zeal for felony disenfranchisement. In its absence, Florida would not be a swing state – it would be solidly democratic.
US AG Eric Holder has been pressing states to reform these outmoded laws – many of which date back to Reconstruction, a living remnant of the Jim Crow south, whose purpose was, then and now, to suppress the black vote. Felony disenfranchisement is an ugly anachronism, with no place in a modern law or governance.
The Constitutionality of Felony Disenfranchisement:
In the aftermath of the US Civil War, with southern states excluded from Congress and yet subject to military rule, northern states changed the Constitution to protect its citizens’ voting rights – somewhat. The 15th amendment, which became law in 1870, is short and simple:
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.
18 months previously, northern states had ratified the 14th amendment. Section 2 is a fine bit of 19th century prose:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when 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, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It sprawlingly ties together many areas of law, including apportionment, the legal status of “Indians”, federal and state elections, voting rights and criminal disenfranchisement. That’s a good thing, because it mutually binds, one to another, numerous rights, capacities and effects, forcing courts to interpret them with respect to one another. The bad of it is that it implicitly allows for the unfettered disenfranchisement of convicted criminals. The 15th amendment meanwhile only prevents states from denying the right to vote for 3 specific reasons – leaving other bases for disenfranchisement valid, including not just crime, but gender.
There is hope. See:
n.b. The Reconstruction amendments were drafted, voted up by 2/3 majorities in both houses, and passed on to the states for ratification while southern states had no representation in Congress, were yet subject to military rule, and were effectively territories – not states – governed from Washington, D.C. Their readmission to the Union – and with it, the restoration of their Congressional delegations – was conditioned on their ratification of the these amendments.
Regulating The Business of Racism
Not all rights in the Bill of Rights are equal. Every right you have depends on your ability to go before an impartial judge to complain of your treatment at the hands of the executive; and your ability to communicate your preferences to other people, including your representatives in the legislature. If all of your other rights were lost, as long as you still had the right to speak your mind and be heard, there’d still be hope. This is why government regulation of expression is so dangerous, no matter how well-intended it may be. The right to speak your mind is the most precious right you have. Reciprocally, the government’s power to censor human expression is its most dangerous.
Many countries have laws against “hate speech.” Depending on where you are, you can be imprisoned for advocating for genocide (Canada); for insulting or disparaging someone’s race, religion, skin color or sexual orientation (Denmark, Iceland), or for denying that the Holocaust happened (France, Belgium) – just to give a few examples. In the US, all such laws would be unconstitutional – leaving Americans relatively free to spew whatever madness or hatred that strikes their fancy.
Then there’s the US Civil Rights Act. While a private citizen can put up racially offensive signs on his front lawn, or publish newsletters denigrating particular ethnic groups, in business he is NOT free to discriminate against customers or employees on the basis of race or religion. This dichotomy is justified because commerce does not get the same protection as civil and political expression. (Up until recently, the US Supreme Court understood the difference between a person and a firm; and between speaking and spending.) Some conservatives complain that this is an overreach of government power – that forcing a restaurant owner, e.g., to serve whites is a denial of his property rights, if not his right to express a particular view by a specific means.
The NFL’s Washington franchise, as a business under US law, cannot discriminate against customers or employees on the basis of race. It is not clear whether a Native American working for the firm could sue the team on the theory that its use of the term Redskins constitutes a form of harassment. For illustration, one might imagine a black supremacist starting a business that prints racially disparaging bumper-stickers. (The Field Guide defers to its readership the imagining of a few especially offensive examples.) Clearly, a white person who applies for employment in such a firm must be treated equally for hiring purposes. But once hired, could he thereafter sue the firm because production of its only product constitutes a denial of his civil rights?
The aim is to demonstrate that several liberal principles are in conflict in this set of issues. Protecting the sensibilities of minorities is important. No less important in a polyglot society is the value of toleration – ensuring individuals a maximum of latitude to live and organize their lives. But free speech – and by free we mean specifically free of government regulation – is paramount. Compared to other western democracies, the US stakes out an extreme position re the government’s power to regulate the content of speech. The Field Guide submits that the US gets it right on this issue – even if in some instances, the result is distasteful.
The Washington franchise has been stripped of its trademarks – this is entirely appropriate and was long overdue. But empowering the government to prevent the firm’s use of a racial slur as its team name; or to forbid its use of a racially inflammatory logo, would be a mistake. One must have faith that liberal values, given time enough, will be borne out – as they always have. Empowering the state to censor the speech of racists – even big racist firms – gives the cause of liberalism a small victory, at too dear a cost. It is nothing more than the majority silencing the expression of a minority it deems unworthy. Though the end may seem attractive, the means, when stripped down to its bare bones, are as ugly as ever.
Consider the best argument against the flag-burning amendment: A flag sheltered by threats to personal liberty can never be a symbol of liberty, and as such, is worthless. Likewise, when liberalism manipulates the apparatus of government to stifle expression it finds noxious, it destroys its core precepts: that the condition of individual liberty will ultimately lead our species to the best of all possible worlds; that given free exchange in the marketplace of ideas, the best ideas will ultimately prevail. Even when progress toward that end is sometimes too slow, empowering the government to pick winners and losers among ideas is itself the worst idea of all.
Note to Field Guide friends and readers: the hazy, crazy, lazy days of summer are upon us, and the Field Guide’s stalwart staff is not immune. CT has commanded a two (2(!)) week cessation of all LFG-related activities, to commence not later than sundown on Friday – encouraging all to use some vacay to nurture the liberal spirit, and if that fails, to drink till inebriation and dialogue members of the opposite (or same) sex till accession.
CT will remain at the home office to oversee the fine-tuning of our trusty LFG woodchipper – and while he’s left open the possibility of reposting hidden gems from the Field Guide’s dusky past, we will return in full freshness on Wednesday July 16th –
NBA, NFL and the Business of Racism
The NBA has revenues of more than $5 billion. Its 30 teams have a collective valuation, per Forbes, of $19 billion – though given recent sales of other sports franchises, that’s probably understated. And so when one owner got caught making racially disparaging remarks, 29 others moved swiftly to excise the canker from the league’s cajillion dollar body. While final, legal closure will likely require years in court (the kind without hoops), it is, as far as fans and players are concerned, largely settled. The league rose to the occasion and cast out a resident racist, allowing the rest to move on.
The case of Donald Sterling is interesting and heartening because it will very likely be put to rest by operation of market forces, with a racist owner dispatched from the NBA because racism is bad for business. When racism is made to go away by private actors, without recourse to the coercive power of the state, that’s a good thing, and a sign of progress.
In contrast, the case of Washington’s NFL franchise is not likely to go away any time soon. Washington has been using a racial slur as its team name since 1933. As far back as 1968, the National Congress of American Indians condemned the team’s use of Redskins; scores of other Native American tribes and organizations have subsequently followed suit – just in case the point had been missed by Washington’s ownership, which was infamous for being among the most racist in professional sports. (In 1962, threatened with eviction from their home stadium by the federal government, they became the last pro football team to integrate – while playing in a city that was more than 50% black.)
Last week, the US Patent and Trademark Office revoked Washington’s team trademarks, deeming the Redskins name and image to be racially disparaging, and thus not entitled to trademark protection. This is the second time that the USPTO has issued such a decision. They did so first in 1999 – a decision that was later reversed.
There can be no serious debate as to whether “Redskins” is a racial slur, Dictionaries are unanimous. Decades of usage may have had a desensitizing effect – but try to Imagine yourself addressing a roomful of Native Americans as Redskins, and any remaining doubt will vanish. A harder question is the proper role of the state in adjudicating, if not remedying, the situation.
Consider that between Sterling’s comments and Washington’s name, the latter case is far more egregious, persisting now for more than 80 years, validated day in and day out by the league, its players and fans; in the mouths of sponsors, announcers and members of the press. The reason the matter persists is simply that Native Americans are not economically significant enough for NFL ownership, its players or fanbase to rethink current practice. Most people dont care – and Native Americans lack the political or economic capital to force them to reconsider.
While Sterling’s comments merited a severe rebuke, the size and swiftness of the response was driven not by the size of the insult, but by the amount of money at stake. Or, as stated above, it was not resolved by justice but by commerce. In Washington’s case, commerce may not be enough to make its ill-conceived team name go away – and justice may not have an answer either.
While trademark revocation is appropriate, it will have some undesirable effects if it stands. Clearly, it will hit the team in the wallet, which was petitioners’ objective. But Washington, with an estimated worth of $1.7 billion, may find the name valuable enough to keep, even in the absence of trademark protection. More perversely, anyone will be able to manufacture and sell merchandise with the Redskins name and logo, without having to get permission or pay licensing fees. According to basic economic theory, this will lead to a significant INCREASE in the supply of Redskins-branded items, and a drop in price. In other words, with its trademark protection revoked, use of the Redskins name and logo on commercial merchandise should become MORE widespread than ever.
Beyond revoking the trademark, it’s not clear what the government can or should do. Liberals must tread carefully in areas involving freedom of expression, including so-called hate speech – of which this matter is a sub-species. The Field Guide will take the issue up when we return on Friday.