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May 20, 2010

A Little History For Rand Paul

The Thirteenth Amendment to the U.S. Constitution reads:
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 Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution were approved by Congress and ratified by the states after the U.S. CIVIL WAR. Known collectively as the Civil War Amendments, they were designed to protect individual rights. The Thirteenth Amendment forbids INVOLUNTARY SERVITUDE or SLAVERY, except where the condition is imposed on an individual as punishment for a crime.

For many decades, however, the goals of the Civil War Amendments were frustrated. Due perhaps to the waning public support for postwar Reconstruction and the nation's lack of sensitivity to individual rights, the U.S. Supreme Court severely curtailed the application of the amendments. The Supreme Court thwarted the amendments in two ways: by restrictively interpreting the substantive provisions of the amendments and by rigidly confining Congress's enforcement power.

Congress enacted a number of statutes to enforce the provisions of the Civil War Amendments, but by the end of the nineteenth century, most of those statutes had been overturned by the courts, repealed, or nullified by subsequent legislation. For example, Congress enacted the CIVIL RIGHTS ACT of 1875 (18 Stat. 336), which provided that all persons should have full and equal enjoyment of public inns, parks, theaters, and other places of amusement, regardless of race or color. Although some federal courts upheld the constitutionality of the act, many courts struck it down. These decisions were then appealed together to the U.S. Supreme Court and became known as the CIVIL RIGHTS CASES, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). The cases involved theaters in New York and California that would not seat African Americans, a hotel in Missouri and a restaurant in Kansas that would not serve African Americans, and a train in Tennessee that would not allow an African American woman in the "ladies" car.

I don't see the point in attempting to relitigate the Civil War. Or, I should say, I see no defensible point in relitigating the Civil War. I see several mistaken reasons for so attempting it (a misplaced notion of Southern honor and very poor choice of selective defiance) and some outright awful reasons to do so.

The Thirteenth, Fourteenth, and Fifteenth Amendments were specifically enacted with the purpose of eradicating slavery and duly -- constitutionally -- empowered Congress to pass legislation in furtherance of this purpose. To say such laws are "unconstitutional" is simply in error -- previous to the lawful and constitutional passage of those amendments, such laws would have indeed have been unconstitutional and an unlawful overreach of granted Congressional power.

After their lawful passage, however, Congress did have that authority.

That was the whole point of the Amendments -- to amend the Constitution such as to grant it power in a sphere it had previously not had.

One can call Prohibition many things -- unwise, ill-considered, counterproductive, antithetical to liberty -- but one can't call it was unconstitutional. Previous to the 18th Amendment, the federal government had no lawful power to prohibit alcohol. After the passage of the 18th Amendement, however, Congress' power to outlaw liquor could not be doubted -- that was the entire point of the amendment, to grant Congress the power to enforce a ban on the sale and transportation of liquor.

I repeat: This was the entire point, and indeed this is always the point of an Amendment, to change the Constitution.

If you want to keep the Constitution as-is, you don't amend it.

It seems to me that people who wish to doubt the consitutionality of the Civil Rights Act can only do so by ignoring parts of the Constitution themselves, specifically, the 13th, 14th, and 15th Amendments which together outlawed slavery (and, it was intended, all badges (identifiers) of servitude).

These Amendments are also part of the Constitution. Same as the 18th Amendment was part of the Constitution after it passed. (Until the Constitution was changed again by the 21st Amendment and Prohibition was lifted.)

Note the date of the Civil Rights Acts being discussed in that passage above -- one was promulgated in 1866.

The next was, in 1875. It was not some newfangled, Warren Court Era idea that blacks should not be denied admittance to theaters or service at a public house. Note that date: This is just five years after the last of the Reconstruction Amendments and nine years after the first one. (13th in 1866, 14th in 1868, 15th in 1870.) The Congress that passed the Civil Rights Act of 1875 was comprised of nearly the exact same men who had passed the Reconstruction Amendments -- in other words, they were uniquely positioned to divine the intent of the drafters of that part of the Constitution, since, of course, they did draft that part of the Constitution.

Courts struck down Congress' laws, claiming the amendments only banned slavery itself -- period, full stop -- and completely permitted -- nay, blessed -- the creation of a pseudo-slavery rigid racial caste system.

The Courts were in error, and were rejecting the clear intent and broad powers of enforcement contained in the Amendments because they disagreed with those Amendments.


We know what Congress intended. We know their "original intent." We know that because between five and nine years after voting for the Reconstruction Amendments they passed the Civil Rights Act of 1875.

Conservatives are fond of the interpretive doctrine of original intent -- what the people who wrote the Constitution actually intended -- evidenced by how they behaved shortly after writing it -- should be an important factor in interpretation. (Side note, I'm not strictly an original intent guy myself, because I think Scalia is a genius and therefore he must be right: Scalia is a textualist -- the words mean what they mean -- but he does use original intent as a clue for interpreting what the words mean, or meant at the time they were written. The distinction here is that if the Constitution's words plainly (to Scalia) mean A, but common practice at the time was to ignore that plain meaning and do B, he will decide A is the proper interpretation, and B was in error from the outset, whereas an original intent-er might side with B.)

The original intent of these amendments was -- rather plainly, I think -- to end slavery and everything like slavery, and to eradicate the original contradiction in the Constitution -- that men were free, and yet one man could own another like property or a farm animal -- and make the Constitution say what it always should havesaid.

Now, one can get cutesy and say "In that case, those who wrote these Amendments botched it, made an error in drafting, because while they may have intended to outlaw a rigid racial caste system in which some men were plainly -- legally -- inferior to others, they didn't actually say that."

To which I'd reply: I can see how you'd make such an argument. But I don't see why you'd make it. Resorting to a claim like "ha-ha, they got sloppy in their drafting of the Amendments, we win, we get to create and enforce through law a rigid racial caste system" seems... I don't know what it seems like.

I don't read an awful lot into the drafters of this Amendment failing to anticipate a legally enforced regime of rigid racial castes. Perhaps they did fail to realize that this would be the answer from a defiant South, pretty angry about a four year, bloody Civil War that killed millions and, to their minds, an illegal one at that.

But so what? It is hardly the biggest Constitutional stretch in history to think that the an amendment enacted to end "slavery" based on race can reasonably be read to encompass a harsh racial caste system and de facto peonage. (And on peons: Peasants in feudal society weren't technically slaves, but they were peons, persons with sharply-curtailed rights and certain obligations (including deference) to their social betters/masters. I think a fair reading of "slavery" includes the idea of "peonage," too. Unless there is some critical constitutional point here to be vindicated, I do not see any defensible purpose in arguing these amendments outlawed slavery but gave full constitutional blessing to regime of enforced peonage.)

At any rate: I don't just think that this position -- that the Civil Rights Act is unconstitutional -- is something that's actually true but we shouldn't fight too much against it because it would be impolitic and unpopular to do so. I happen to think it's flat wrong, too, and that is really little question that the Amendments meant what they seemed to mean.

The caste system was permitted -- in error. The nation was simply exhausted of this fight and unwilling to re-fight the Civil War, especially because, in final analysis, Who cares about a bunch of blacks, anyway? And that attitude existed in the North, of course.

But the fact that those charged with faithfully executing the Constitution simply gave up trying to enforce it out of a combination of exhaustion and indifference -- while others actively resisted it because they did not, in fact, wish to abide by the Constitution as it was currently written -- is hardly equal to the Constitution blessing these practices.

The Constitution didn't bless them -- the nation just chose to ignore the Constitution because it had better things to do than perpetually fight over the rights of blacks. (And, again: Who cares about them anyway?)

I understand the frustration that many conservatives feel at vague notions of "civil rights" always being suddenly discovered in the Constitution. I feel that frustration too -- and I don't agree with this philosophy, that civil rights and the Civil War can perpetually be invoked to justify whatever power-grab or reduction of liberty the government has in mind this year.

But I disagree strongly with how libertarians (and, frankly, Confederate Revanchists) fight it, by claiming -- with those initial 1875-1890 courts, which were in error -- that all of this was perfectly legal and no business of the federal government whatsoever.

The federal government had made it its business through these amendments. And I repeat-- an amendment is a part of the Constitution, with as much force as any other part of it, whether in the first document or the Bill of Rights.

The same way the Constitution once blessed slavery-- it was wrong, but it was, in fact, constitutional -- it now changed to outlaw it, and all of its badges. One can disagree with that amendment -- if one feels so compelled -- but one can't really claim the Constitution is itself unconstitutional.

Certainly I agree with the conservative take about just about all of this: I agree that this limited authority to reduce freedom in this one area has been used, unlawfully and improperly, as a general land-grab authority to seize entire swathes of the landscape of personal freedom. Certainly I'd like to see a rollback of illegal -- unconstitutional -- quota systems, blessed by a Court in error, which make it lawful to discriminate against a man based on the color of his skin, and unjustly reward another man for his skin color.

I also agree wholeheartedly that coercion is like a drug, and once the government gets a taste of it, it quickly gets addicted, and soon decides that coercion is the fast, cheapest, easiest, best manner to defeat the ever-increasing list of monsters that need eradicating.

And all of that.

And I sure wouldn't mind hearing Rand Paul say things like that.

But I think it is simply wrong -- and libertarian doctrine gone goofy, very selectively reading the Constitution, and ignoring the parts that plainly say "the government shall have constitutional power in this area" -- to say that the Civil Rights Act was unconstitutional as written, that the government didn't have that power, that "boycotts" and other manners of non-state, non-coercive action were the only permissible way to go, etc.

I don't think it's a simply a manner of RINO-ish compromise and go-along-to-get-along. I think the opposite position is simply false, and, indeed, unconstitutional, and as unconstitutional as the current regime of the racial spoils system.

The Amendments were enacted for this purpose.

In 1789, the Constitution should have outlawed slavery, if it was true to its own spirit -- but practical considerations prevailed, and slavery was blessed.

In 1866, the Constitution should have outlawed slavery, but, in response, a slavery-like rigid racial caste system was created, frustrating the plain goal of the Reconstruction Amendments.

In 1875, the Civil Rights Act should Have outlawed the slavery-like regime taking hold in the South (and, of course, as any Southerner would point out: Already present in a stealthier form in the North), but recalcitrant, revanchich courts claimed the plain intent of the Amendments wasn't really what they intended and, further, the grant of authority to Congress, contained in express language, to further this intent, was unconstitutional; one of those odd cases, we see from time to time, of the Court claiming the Constitution is unconstitutional. Which is really code for I don't agree with the Constitution so I'm going to rewrite it in this here opinion.

Now, in 1968, a new Civil Rights Act is passed, much of it attempting to finally achieve what had been attempted nearly 100 years past in 1875, this one basing its authority partly on the Commerce Clause because the courts had found that the 13th, 14th, and 15th Amendments weren't quite clear enough -- and while the original intent was achieved over several decades, it was controversial as hell every step of the way.

And really, at this point -- in 2010, over 200 years since the Constitution really should have forbidden any of this, and 135 years since the Civil Rights Act of 1875, passed in the immediate aftermath of the Reconstruction Amendments, by the same men who'd drafted them -- we're still going to sit here arguing about whether this was a good thing?

I suppose some might be offended by this, and say, "Well, as a Northerner, it's pretty easy for you to say all of this, and regurgitate the Yankee side of things." I guess I'd just turn that around and say "As a Southerner, it's easy for you to reject that position."

But what does the Constitution actually say? It says to me -- in the 13th, 14th, and 15th Amendments -- that slavery, vile from the outset, is finally, after long years and bloody civil war, finally outlawed.

I cannot believe that at this late date we're still having an argument over whether it was legally permissible to back-door it back in through Jim Crow.

Why on earth would we even have this argument? We've got live, critical controversies happening right now, but we have to keep an open mind over the question of whether the federal government has the power to eradicate slavery and its badges and incidents? Really?

I know the answer to that is "If you begin with an error, you proceed further and further into error," and thus, it is important to argue about these things.

But I don't believe this began with an error-- or, I mean, the anti-slavery, anti-caste position was not in error at all. The restrictions there on liberty -- that yes, you could be compelled to serve a black man in your shop -- were indeed limits on liberty, but they were specifically blessed in the Constitution. Just like as the case with Prohibition.

The error occurred later -- but no, it's not at all necessary to a argue over the propriety of the Civil Rights Act (pick your version: 1875 and 1968) in order to argue against the current wrong of racial preferences and further erosions
of liberty in order to achieve goals having nothing at all to do with slavery at all.

And I know that's possible because I do it myself.


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posted by Ace at 04:42 PM

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