poli-sci (06/12/82)
>From JoSH@RUTGERS Sat Jun 12 14:40:12 1982
Poli-Sci Digest Sat 12 Jun 82 Volume 2 Number 143
Contents: Civil Liberties (3 msgs)
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Date: 9 Jun 1982 0621-PDT
From: Jim McGrath <CSD.MCGRATH at SU-SCORE>
Subject: Visas
Come on now folks! The US has pretty broad freedom of travel for
citizens internally, and fairly broad externally. We NEVER said we
would grant non-citizens any such freedoms (although we generally do
anyway). The UN is in NY for a pretty good reason - we were willing
to donate the land. (Please note however that the UN is still in US
territory - ie US laws etc... still apply. The same goes for UN
headquarters in Europe - the UN is NOT a soverign state.)
Jim
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Date: 10 Jun 1982 0829-PDT
From: Jim McGrath <CSD.MCGRATH at SU-SCORE>
Subject: More on the right to travel
In Kent vs Dulles, supra, ... we held that "the right to
travel is a part of the "liberty" of which a CITIZEN cannot be
deprived without due process of law under the fifth
amendment." ... However, the fact that liberty cannot be
inhibited without due process of law does not mean that it can
under no circumstances be inhibited.
Zemel vs Rusk, 1965
In particular the "national interest," usually as determined by the
executive branch, can be used to justify regulation of travel to or
from the US for citizens (the rights of non-citizens are even weaker).
Historically the courts have been VERY reluctant to rule what is in
the "national interest" in these cases, feeling that such a ruling
would be to interfere with the President in his role as head of state.
Thus restrictions based on political beliefs, or indeed ANY beliefs
(except religious ones) has been explicitly allowed. Travel within
the US is subject to the same restraints, although in this case the
executives of STATES can also interfere with travel. Note that the
executives have not really abused this power, so such a broad grant
has been historically justified.
This is classically used to prevent citizens from venturing into areas
declared to be disaster areas (due to floods, etc...) or into areas of
the world where they could provoke an international incident. Of
course, travel may also be restricted if a law would otherwise be
violated, or in response to a violation of the law (ie to prevent
smuggling or to keep a material witness in the area during an
investigation).
Remember folks, citizenship entails responsibilities. If you want the
US to go to bat for you if you get into trouble abroad (and believe
me, you WANT that), then you have to pay a price. The same goes for
national security in general. Considering what we get, the price
asked of us is damm low.
Jim
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Date: 10 Jun 1982 1044-PDT
From: Jim McGrath <CSD.MCGRATH at SU-SCORE>
Subject: Civil Rights and the Constitution
Some conservative thoughts on the Civil Rights Act of 63/64:
"The Howard Johnson case from Virginia is a case in which a
man wanted to be served. Howard Johnsons refused to serve
him, and he went to court, but the court held that a man did
not have to serve anybody on his own private property that he
did not wish to."
Strom Thurmond, speaking against the Public Accommodations
provisions
US News & World Report, 30 Mar 64, p102.
Strom was speaking to the CIVIL RIGHT of the INDIVIDUAL involved not
to offer his/her services to a given individual. This is certainly a
defense of civil rights - would you rather have it so that the
government could compell people to deliver their services to anyone at
all? That sort of position (which many leftists support, and is
similar to what is in effect in portions of the country today) can,
and will, easily evolve into a situation where the GOVERNMENT, NOT the
PEOPLE are making decisions involving your property (including your
right to work where you will). And anyone who thinks GOVERNMENT =
PEOPLE is off his/her rocker.
This is a classical instance where the right of an individual to
purchase service from SOMEONE (which most of us support) conflicts
with the right of the individual to deny service to anyone in
particular (which most people would also support). A problem arises
when the market is such that people exercising the second right deny
people recourse to the first right (ie in a monopoly or oligopoly
market). (It is ironic that regulations often ENCOURAGE the formation
of such markets.) Many people, seeing this problem, jump to the
incorrect conclusion that you must deny the second right in order to
gain the first. Both are equally important, and the trick is to
foster an environment where a proper balance is struck. Sure that's
hard - life ain't easy. It takes more skill to wield a scalpel than an
ax.
Thus from principle it seems that there are decidedly two sides to
this coin. However, legally this argument is only directly applicable
to actions of local and state governments, since they are the ones
authorized to make laws involving the regulation of local commerce,
housing, etc... It is debatable in the extreme that Congress has any
such power. All of its power is either enumerated in the Constitution
or is an exercise of its legislative powers which is "necessary and
proper" for carrying out those enumerated powers. This is an
undebatable principle upon which our entire national government is
based.
The courts initially held, in voiding the Civil Rights Act of 1875
(The Civil Rights Cases, 1883), that the 13 and 14 amendments (which
are suppose to enumerate the appropriate Congressional powers) are
suppose to deal only with slavery and denial of due process or the
equal protection of the laws by "state action" respectively. That is,
a restricted view of slavery applicable to everyone and action by the
states (action by the federal government is covered in the fifth
amendment) relating to due process or equal protection.
XIII 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.
XIV 1 ... No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.
Both the wording of the amendments, their history, and the historical
restriction of the fifth amendment to actions by the federal
government support the supposition that only actions which deny due
process or equal protection (ie discrimination) BY THE STATES
THEMSELVES is disallowed. Now this power is vast - for instance, one
cannot establish and enforce a contract under state law with the sole
intent of discriminating (Shelly v Kramer), and one cannot
discriminate through the use of property leased from a state (Burton v
Wilmington Parking Authority). However, a person engaged in
discrimination can benefit from the services of the state, a long as
those services do not directly contribute to the act of discrimination
(Palmer v Thompson).
The Warren Court tried to expand the power of these amendments, in a
manner which, to quote Justice Harlan, was "ill-considered and
ill-advised." In particular see Jones v Alfred H Mayer (where the
court held that the prohibition against slavery in the 13 amendment
entitled Congress to make laws prohibition discrimination in the
purchase of housing) and Griffen v Breckenridge (where it was upheld
that a private individual could be prevented from denying a person
equal protection of the laws). Jones is a silly opinion; Griffen can
be defended, but only so long as the law whose equal protection is
being sought could have been established by Congress as a derivation
from one of its enumerated powers (thus you could not say someone
discriminating in housing was violating the equal protection of the
laws, since the federal government could not make any such law in the
first place).
Thus the constitutionality of much of the Civil Rights legislation
passed in the sixties is highly questionable. And from the
perspective of Storm or Jim (see the next quote), it would appear
pretty conclusive that it WAS unconstitutional since the Warren court
had not yet broaden the charge of the 13 and 14 amendments.
"IF local school boards throughout the South are to be
prohibited by law from maintaining separate school systems, a
law must be passed `pursuant to the Constitution' to impose
such a prohibition. I would take the position, in the light
of the history of the Fourteenth Amendment, that such a law
would not be `pursuant to the Constitution.' It would violate
the plain intention both of those who framed the amendment and
also of the States that ratified it."
James J. Kilpatrick, arguing against the entire bill National
Review, 24 Sep 63, pp231.
Jim is right - much of the Civil Rights Act IS unconstitutional if you
simply examine the Constitution as we have done. Perhaps another
example will shed additional light on this problem - let us look at
the Voting Rights Act of 1965, which also appears to be plainly
unconstitutional in parts. To clarify the issue here:
XIV 2 ... 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 21 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.
This implies that the right to vote is NOT inherent in the status of
being a citizen. See also:
Art I 2 1 The House of Representatives shall be composed of
Members chosen every second year by the People of the several
States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous
Branch of the State Legislature.
XVII 2 ... [in electing Senators] ... The electors in each
State shall have the qualifications requisite for electors of
the most numerous branch of the State legislature.
Indeed, states may deny or abridge this "right" at will in any
particular way, EXCEPT THOSE THEY ARE OTHERWISE EXPLICITLY PROHIBITED
FROM USING. One such is in:
XV 1 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 or servitude.
Another prohibition is based on sex, payment of taxes, and of course
21 was lowered to 18. Thus the Voting Rights Act, which sought to
deny to the states the right to deny or abridge voting based on tests
which were not related to race, sex, or color , is, quite simply,
unconstitutional, so long as these tests were established via the due
processes of law and are enforced equally.
How did the courts get around this argument? Easy - they ignored it.
Read the opinion in Katzenbach vs Morgan, where the court sidestepped
this issue completely. [Here they ruled that the section of the act
denying to the states the power to regulate voting based on the
ability of an individual to read English (re: read the ballot) was
constitutional, even though it seems fairly obvious that this is well
within the power of the states to provide for, since it does not deny
the right to vote based upon a person's sex, color, age, or payment of
taxes.] It is a very bad opinion - but no one said the court ever had
to be RIGHT all the time, only that they have to power to decide such
cases. Sigh.
Gee. I wonder where they were.
They have been there all the time - if you ever bothered to look.
Apparently you did some research on this topic to find these quotes -
it is amazing that you never stumbled across the REAL reason a lot of
people oppose such "good meaning" legislation such as the Civil Rights
or Voting Rights Acts - they simply upset the balance of power between
individuals, states, and the federal government, a balance that was
struck NOT for the sake of giving absolute freedom to individuals, or
to enable the state or federal governments to act with greatest
efficiency, but in order to secure the blessings of a government while
preventing the accumulation of power into one organ of government, and
thus reduce the chances that such power will be misused. Remember,
our government is more or less founded on the principle of "consent of
the governed, since they are the only people you can even remotely
trust - but with as many safeguards as possible heaped on all the
same."
I personally would prefer a government along these lines (one
prevented from doing great harm, and thus hampered in doing good as
well) to one in which you have the opportunity to do BOTH a great deal
of good and evil. THAT is the type of government that best protects
one's civil liberties. And remember, when you are considering
violations of civil rights, it has been, as history repeatedly shows,
the government to be the greatest enemy of these liberties - not the
people.
Jim
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End of POLI-SCI Digest
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