poli-sci (06/15/82)
>From JoSH@RUTGERS Mon Jun 14 22:40:18 1982
Poli-Sci Digest Tue 15 Jun 82 Volume 2 Number 144
Contents: Voting rights (2 msgs)
Travel rights
Ban the Bomb
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Date: 13 Jun 82 01:20:11 EDT (Sun)
From: Steve Bellovin <smb.unc@UDel-Relay>
Subject: Voting Rights Act
Cc: CSD.MCGRATH at Su-Score
You would make a better case for your objections if the practices and
laws you cite weren't intended and used for the purpose of racial
discrimination. There's an old story, about a black man who attempted
to register to vote in Mississippi. The registrar asked him every con-
ceivable question in an attempt to show that he was unfit to vote. Finally,
all else having failed, the registrar asked him to read a Chinese newspaper.
The man answered, "Well, I can't read the articles, but I understand the
headline." Amazed, the registrar answered, "You do? What does it mean?"
"It means that here's one Negro who's not going to be voting in this county."
But since we seem to be in the business of quoting legalisms, I did some
checking of my own.
First, although the 14th Amendment does indeed provide for reducing a
state's representation in Congress as a penalty for denial of franchise,
the 15th Amendment (ratified about a year and a half later) simply states
that the right of citizens to vote shall not be abridged on account of
race, color, or previous condition of servitude, and that "the Congress
shall have the power to enforce this article by appropriate legislation."
The Supreme Court ruled (South Carolina vs. Katzenbach, 1966) that the
Voting Rights Act of 1965 was a proper exercise of power under this amend-
ment, not the 14th. I quote from the opinion:
Two points emerge vividly from the voluminous legislative
history of the Act... First: Congress felt itself confronted
by an insidious and pervasive evil which had been perpetuated in
certaion parts of our country through unremitting and ingenious
defiance of the Constitution. Second: Congress concluded that
the unsuccessful remedies which it had prescribed in the past
would have to be replaced... in order to satisfy the clear
commands of the Fifteenth Amendment....
Meanwhile, beginning in 1890, the States of Alabama, Georgia,
Louisiana, Mississippi, North Carolina, South Carolina, and
Virginia enacted tests still in use which were specifically
designed to prevent Negroes from voting. Typically, they made
the ability to read and write a registration qualification and
also required completion of a registration form.... At the same
time, alternate ests were prescribed in all of the named States
to assure that white illiterates would not be deprived of the
franchise. These included grandfather clauses, property
qualifications, "good character" tests, and the requirement that
registrants "understand" or "interpret" certain matter....
White applicants for registration have often been excused
altogether from the literacy and understanding tests or have
been given easy versions, have received extensive help from
voting officials, and have been registered despite serious
errors in their answers. (Footnote: A white applicant in
Louisiana satisfied the registrar of his ability to interpret
the state constitution by writing, "FRDUM FOOF SPETGH." A white
applicant in Alabama who had never completed the first grade of
school was enrolled after the registrar filled out the entire
form for him.) Negroes, on the other hand, have typically been
required to pass difficult versions of all of the tests, without
any outside assistance and without the slightest error.
(Footnote: In Panola County, Mississippi, the registrar
required Negroes to interpret the provision of the state
consitution known as the 'Chickasaw School Fund.' In Forrest
Country, Mississippi, the registrar rejected six Negroes with
baccalaureate degrees, three of who were also Masters of Arts.)
The good morals requirement is so vague and subjective that it
has constituted an open invitation to abuse at the hands of
voting officials. Negroes obliged to obtain vouchers from
registered voters have found it virtually impossible to comply
in areas where almost no Negroes are on the rolls.
The opinion goes on to document the failure of previous, less sweeping
remedies, and to explain in detail why the remedies prescribed in the
Act are constitutional. I can summarize for a computer-oriented
audience by saying that Congress and the courts look at surrounding
context, not just the letter of the law.
The question of discrimination by motels and restaurants is more
interesting, because of both the legal questions and the moral aspects.
The legal basis for the Civil Rights Act of 1964's provisions is the
"interstate commerce" clause of the Constitution. The Supreme Court's
ruling (Heart of Atlanta Motel v. United States) held that it was indeed
a question of interstate commerce, as documented by the legislative
history of the Act:
This testimony [before Congress] included the fact that our
people have become increasingly mobile with millions of all
races traveling from State to State; that Negores in particular
have been the subject of discrimination in transient
accomodations, having to travel great distances to secure the
same; that often they have been unable to obtain accomodations
and have had to call upon friends to put them up overnight, ...;
and that these conditions had become so acute as to require the
listing of available loding for Negroes in a special guidebook
which was itself "dramatic testimony of the difficulties"
Negroes encounter in travel.... We shall not burden this
opinion with further details since the voluminous testimony
presents overwhelming evidence that discrimination by hotels and
motels impedes interstate travel. [In this particular case, the
facts were not disputed by the plaintiff, including a finding
that 75% of its registered guests were from out of state.]
Thus, the question before the Court was not whether Congress had any
jurisdiction, but whether the law itself was a reasonable exercise of
legislative authority. They concluded that such a law was indeed
reasonable, and justified by ample precedent:
There is nothing novel about such legislation. Thirty-two
States now have it on their books either by statute or executive
order and many cities provide such regulation. Some of these
Acts go back four-score years. It has been repeatedly held by
this Court that such laws do not violate the Due Process Clause
of the Fourteenth Amendment. Perhaps the first such holding was
in the *Civil Rights Cases* [1883], themselves, where Mr. Justice
Bradley for the Court inferentially found that innkeepers, "by
the laws of all of the States, so far as we are aware, are
bound, to the extent of their facilities, to furnish proper
accomodation to all unobjectionable persons who in good faith
apply for them." [In the Civil Rights Cases of 1883, the Court
struck down similar laws passed during Reconstruction, holding
that Congress lacked sufficient jurisdiction. In this case, the
Court noted that the previous law was not couched in terms of
regulation of commerce but was in fact much broader, that the
Court had explicitly denied considering the law in those terms,
and that in any event there was far more travel and commerce in
1966 than in 1883.]
We find no merit in the remainder of appellant's contentions,
including that "involuntary servitude." As we have seen, 32
States prohibit racial discrimination in public accomodations.
These laws but codify the common-law innkeeper rule which long
predated the Thirteenth Amendment.
I could go on; there are many more Supreme Court decisions I could cite
or quote on the subject. But the real issue isn't legal, it's moral:
regardless of whether or not the Federal government does have the power,
should it? I'll discuss that further in another note; this one is long
enough already, but I wanted to dispose of the legalistic red herring
that's been tossed out.
--Steve Bellovin
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Date: 13 Jun 1982 1233-EDT
From: PDL at MIT-XX (P. David Lebling)
Subject: Re: Poli-Sci Digest V2 #143
Those who want more background on the history of the Fourteenth Amendment
should read Raoul Berger's "Government By Judiciary: The Transformation
of the Fourteenth Amendment." This is the same Raoul Berger who wrote
"Executive Privilege."
Dave
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Date: 13 Jun 1982 1254-EDT
From: Bill Hofmann <G.WDH at MIT-EECS>
Subject: Visas, right to travel
While, as JPM notes, the US has no constitutional obligation to admit
anyone, there are other sources of obligation, specifically the
Helsinki Accords and the UN Declaration of Human Rights. These
obligations were what caused the State Department to reconsider the
granting of visas, especially to those specifically invited by the UN.
The government's actions in restricting the rights of travel and of
entry should be opposed for several reasons. First and foremost is
the uneven application of these rules. Specifically, leftists of all
varieties (including those certainly not alligned with the USSR) often
find it hard to gain entry, while (and I use the term exactly)
fascists often have no problem gaining entry, even if denied visas.
Roberto d'Aubuisson (aka Blowtorch Bobby), one of those until recently
denied visas, still managed to make an appearance at a seminar
sponsored by the American Enterprise Institute, while noted Marxist
(Trotskist) historian Ernest Mandel has been barred from the country,
along with subversives like Gabriel Garcia Marquez. For a good
backround on the whole issue, the Times had a remarkably unbiased
report a week or so ago (discussing the backround of the McCarran
Act).
The US government has also, as you are doubtless aware, reserved as
its right the right to deny passport to those it dislikes, and to
restrict travel abroad where it pleases. The most recent case of this
was the retraction of Philip Agee's passport. Vance pulled it after
Agee suggested that a good way to resolve the hostage crisis would be
to give the Iranians all documents relating to US interference in
Iran. Agee lost his appeal of this retraction last summer, and is now
living in West Germany. The dissenting opinion in the Supreme Court
case is particularly worth reading.
-Bill
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Date: 13 Jun 1982 20:11:20-PDT
From: decvax!minow at Berkeley
Subject: Having a wonderful time, wish you were here.
Yesterday, I joined a fairly large number of people in New York for
the June 12 rally. I'm still a bit amazed at the numbers -- there
were over 60 busses from the Boston area (plus a train), and people
were marching in New York throughout the day. In fact, one in every
250 Americans was at the demonstration.
(No arrests, smiling policemen everywhere.)
(Hmm, how many other poli-sci readers were there? I know of at least
one other. Any more? Maybe we need a tee-shirt?)
Today's poli-sci commented on the validity of denying visas to foreign
demonstrators. Perhaps this is legal, but is it a good idea? By denying
visas to a few hundred Australians and Japanese, we look silly to the
rest of the world. What are we afraid of?
Martin Minow
decvax!minow @ berkeley
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End of POLI-SCI Digest
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