Tuesday, February 19, 2008

Where Did All The Nationalism Go?

Scott at LGM provides a quote from the first Justice Harlan's dissent in the Civil Rights Cases:
With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that -- under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship -- it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Scott goes on to point out that "federalism" claims, outside a narrow swath of academics, have always been mere facades for substantive state interests and are thrown away at the drop of a hat when the national government is doing something the "federalists" like. Fugitive Slave Act on the table? National power! Civil Rights Act? But what about states rights? Oh boo hoo.

Incidentally, while I give Harlan credit for his dissent here, he's still no hero.


PG said...

Unless I'm completely off about what the Fugitive Slave Act did, I'm calling bullshit on Scott for this particular example of federalism hypocrisy. The main objection people have now to federal legislation is that it goes into matters that are essentially intra-state.

The Fugitive Slave Act was enacted to deal with slaves' escaping from slave states and territories into free ones. The local law enforcement within free states, whether out of personal conscience or public pressure, tended to be disinclined to return the escaped property to its legal owner. Therefore Congress specifically empowered its own federal officials in those states to be agents of enforcement, rounding up and returning slaves to the slave states. It was a better solution than to have slave state officials and slave owners running around free states getting into fights with abolitionists. Slaves who escaped from Savannah and went to Atlanta were left to Georgia officials to deal with, because such an escape was a purely intrastate matter.

The 14th Amendment, like almost all of the Constitution and its Amendments, is about state action, and thus using it to enact laws barring private discrimination was arguably problematic. That's why Congress used the interstate commerce clause to pass the Civil Rights Act of 1964. Sure, that just gave conservatives a new provision to bitch about and claim that it was being over-extended to touch purely intra-state matters, but the interstate commerce clause at least has been generally conceded to deal with the private sector (that being where most commerce takes place).

Apropos of nothing, can we all agree that Andrew Stuttaford is kind of an idiot? He's getting het up over Mrs. Obama's having found American politics rather uninspiring heretofore:
So there was nothing in American politics over the last couple of decades that she could find to be proud about before her husband's political success. Nothing?
He of course doesn't bother to provide an example of what she *ought* to be proud of, just displays his outrage that even though he, Andrew Stuttaford, has had pride in recent U.S. politics, this Democratic black woman hasn't. How dare she! His attempt to give examples of high points in American politics would have made for an actually useful comment.

"Weren't you proud of American politics when Reagan was making up stories about Cadillac driving welfare queens? Oh, I guess that wasn't very endearing. Hmm, how about Bush Sr.'s victory coming partly by scaring voters that Dukakis would let scary black men loose on them? No? Well, you *had* to love Clinton's Sister Souljah moment -- we conservatives all did -- not to mention Gingrich's plan to end welfare by the mass institutionalization of poor children into orphanages! And who wasn't inspired by Bush 43's use of 9/11 to get us into Iraq, complete with that awesomely manly Mission Accomplished photo?"

Which is the crux of the difficulty conservatives have understanding Obama's popularity and why it seems like a mysterious cult to them. When the last few decades have been mostly gravy, why would "change" sound appealing?

PG said...

Oh, and Hall v. DeCuir (1878), where the Court said Louisiana couldn't require interstate carriers to be integrated because this was a matter for federal regulation, gave Congress a pretty clear signal that if there was going to be statutory desegregation, it would be on the basis of the interstate commerce clause and by federal law.