Today marks the fiftieth anniversary of the student sit-in at a Woolworth’s lunch counter in Greensboro, N.C. This was the first of what would become a broad movement of sit-in protests as literally thousands of African-American students sat at lunch counters across the South, refusing to leave until they were served. These protests are often credited with reinvigorating the civil rights movement and accelerating the demise of Jim Crow. How Appealing has a round up of links. [...]
Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:
The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.
This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.
The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings.
(Update: Thanks to Ilya for his post above, and Orin for his comment below to this post. Bottom line is that Comstock does not have national security implications.)
Could I put a question to the VC staff who are following Comstock? For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention. Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.
Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.” Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years. At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.
Back at the beginning of [...]
I’ve just posted this article, co-authored with Tim Leonard of the Princeton Economics department, on SSRN. Here’s the abstract:
Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market.
The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called “defective” groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned “undesirables” into the “hereditarily unfit” and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.
The second part of this article discusses the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable.
The Davis-Bacon Act of 1931, which regulated the wages paid on
The U.S. Commission on Civil Rights wants to investigate the Department of Justice’s handling of voter intimidation charges against members of the New Black Panther Party in Philadelphia. According to this report, the Justice Department is instructing its attorneys not to cooperate.
The commission last week subpoenaed at least two Justice Department lawyers and sought documents from the department to explain why the complaint was dismissed just as a federal judge was about to punish the New Black Panther Party and three of its members for intimidating voters.
Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, ordered the lawyers’ silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said “well-established” and “lawful” Justice Department guidelines prohibited Mr. Adams’ cooperation in the commission probe.
In the letter, Mr. Hunt said the Civil Rights Commission “possesses no authority to initiate criminal prosecution of anyone” and has the ability only to make referrals to the Justice Department recommending that a criminal case be opened. The commission does not have the authority to enforce subpoenas, he added.
Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.
Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.
Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.
United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II. [...]
Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.
But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!
I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities
The Supreme Court’s decision in Ricc v. DeStefano did not put an end to litigation over the New Haven Fire Department’s use of tests for firefighter promotions. One black firefighter, Michael Briscoe, has filed a disparate impact suit against the city (more here), and other black firefighters have sought to intervene in Ricci on remand. As Daniel Schwartz notes on the Connecticut Employment Law Blog, these claims are likely to face tough sledding. Stay tuned. [...]