Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

— This commentary was broadcast on WAMC Northeast Report, April 12, 2016.

 
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Let’s take the Constitution back – from the deniers

January 22, 2016

Republicans repeat over and over that they want to take back the Constitution. That’s nonsense. Actually they are trying to destroy it. It’s important to understand where it comes from. After the Civil War, generations of Southern writers tried to win the peace after losing the War. They succeeded. There is no chance that you were not brought up familiar with elements of it.

In history, that’s called the Dunning thesis.[1] It refers to the claim that, after the Civil War, radical Republicans acted out of spite and revenge rather than out of deeply seated conviction. Historians discredited that thesis a century ago but it kept coming up in the textbooks as if no one bothered reading the historians who discredited it. In fact the Republican leadership who wrote the Fourteenth Amendment were totally committed to the ideal of equality. Thaddeus Stevens, a Republican leader in Congress, told the House he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” The Republican leadership knew and respected African-Americans and former slaves, employed them in responsible positions, welcomed them as friends and in some cases lived with them.

I have to deal with the fallout in law all the time. From the beginning of our country, Southern slaveholders tried to convince Congress and the people that the Constitution had granted Congress little or no power over the states and the country.[2] The courts repeated that formula endlessly, citing the writings of various Founders to prove their point. They are cherry-picking the data. The Convention that wrote the Constitution was dominated by nationalists; the states-righters stayed home. They wrote a powerful document. In the debates over ratification, however, both sides confused the issue. Proponents of the Constitution tried to reassure the public by saying how little the Constitution would do. Opponents tried to scare the public by saying how much it would do.

Regardless of any ambiguities in the original 1787 document, the Civil War Amendments made much of Congress’ power clear, but not to the Roberts Court. President Andrew Johnson sent Gen. Carl Schurz south to report on conditions in the former Confederate states.[3] His Report revealed the ways that former slaves were being re-enslaved by new rules, tracked, beaten or killed for trying to leave, work for themselves, or what we would call walking while Black. Most clearly Congress did give itself the power to deal with those abuses, public and private in the Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments.

You may have heard present day self-styled conservatives who have now taken over the modern Republican Party, trying to take back what the original radical Republicans tried to do, calling African-Americans and others “Fourteenth Amendment citizens.”[4]

Americans of the Civil War generation believed that citizenship gave people a number of rights and they were determined to make sure that the freedmen had those rights. The draft of the first section of the Fourteenth Amendment, as it was brought to the floor, included the right to the privileges and immunities of citizenship, due process and equal protection – each of which overruled the notorious Dred Scott decision just a few years before the Civil War. But on the floor a motion was made to make the point indisputable: “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.”[5]

Those are elegant words America can be very proud of. We don’t always live up to those ideals. But those ideals justify a great deal of pride. Hold onto them and don’t believe anyone who denies them. They are nothing more than apologists or dupes of the old Confederacy and modern racists.

— This commentary was broadcast on WAMC Northeast Report, January 19. 2016.

[1] See The Dunning School: Historians, Race, and the Meaning of Reconstruction, 36-39 (Univ. Press of Ky., eds. John David Smith, J. Vincent Lowery, 2013), https://books.google.com/books?id=OcJKAQAAQBAJ&pg=PA22&lpg=PA22&dq=the+Dunning+thesis&source=bl&ots=885Fs23eFw&sig=3AN6KTp5IG5gE7DF6AfL5t-5COA&hl=en&sa=X&ved=0ahUKEwiKxdeskLHKAhXHwj4KHb11BEEQ6AEIUTAI#v=onepage&q=the%20Dunning%20thesis&f=false

[2] Prior to the Civil War, counsel argued that the southernmost states would not have joined the union if they had reason to believe that Congress would have had any power over slavery. See Groves v. Slaughter, 40 U.S. 449 at app. lvii-lviii, lxv (1841); Prigg v. Pennsylvania, 41 U.S. 536, 611 (1842); Dred Scott v. Sandford, 60 U.S. 393, 411 (1856) (Taney); and see R. Cover, Justice Accused, 234, 240-41 (1975).  Thus they argued that the commerce clause had to have a narrow meaning. The Court struggled with the meaning of the commerce clause in a group of cases involving regulation of passengers. See Mayor of the City of New York v. Miln, 36 U.S. 102, 136 (1837) and The Passenger Cases, 48 U.S. 283, 474 (1849) (Taney, C. J., dissenting).  To have treated people as subject to commerce clause jurisdiction would have enlarged the possibility of power over slavery.

[3] Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., SENATE, Ex. Doc. No. 2 (December 19, 1865).

[4] Garrett Epps, Trump’s Birther Libel and American History, Atlantic Online, April 12, 2011, accessed on Lexis/Nexis, Jan. 17, 2016, and see online literature of the “Freedom School,” http://freedom-school.com/citizenship/fourteenth-amendment-citizenship.html.

[5] The seminal study of the history of the Fourteenth Amendment is Horace Edgar Flack, The Adoption of the Fourteenth Amendment (Classic Reprint, 2015) (1908). For a brilliant recent discussion, see Richard Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation, 39 Akron L. Rev. 289, 309-21 (2006).


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