VAWA -Reply

[DAVID E. BERNSTEIN]

òI*m glad that Sandy likes my work (and certainly return the
compliment, although he hardly needs my endorsement),  and acknowledge
that it may have sounded foolish to suggest  putting racial baggage
aside.  Given the nature of my own  historical work, I certainly would
be the last to advocate doing  so when discussing constitutional
history, much less the history  of the Civil Rights Cases.  What I meant
to get at, and perhaps should have said more directly, it the Civil
Rights Cases seem to get a lot of criticism because the result appalls
modern sensibilities and sensitivities on race issues.  Yet, when I read
the opinion, its legal logic seemed compelling, and consistent with what
I understand to be history of the 14th Amendment. Harlan*s dissent,
meanwhile, seemed long on pleasing (to modern  ears, at least) rhetoric,
and short on cogent legal analysis (a  common failing of Harlan*s,
actually).  I simply don*t see that the 14th (or 13th) Amendment was
meant to eliminate all the badges and incidents of slavery, as opposed
to securing specific civil rights from state discrimination, and to give
Congress authority to overturn and prevent discriminatory state action,
(and, in the case of the 13th Amendment, to simply eliminate slavery).

The question, as a legal matter, is not whether it was legitimate, in a
moral sense, for Congress to intervene in the private sector to overcome
the legacy of slavery, but whether the 13th or 14th amendments granted
Congress the power to do so.  Of course, there are those who would argue
that sufficiently important cases  require the Court to rise above the
Constitution, but to argue that the Court was legally right but
ultimately mistaken because of historical context wouldn*t really help
the constitutionality of VAWA, the original topic of this discussion.

I can*t say I*ve read Strauder recently, so I will take Sandy*s advice
and look at it.  But I do know that Strauder involved racial
discrimination.

A side point: The Civil Rights Cases still get cited sometimes as an
example of why Lochnerian/liberty of contract jurisprudence is bad, but
I didn*t notice any mention of such issues in the case, it seemed solely
based on Congressional powers and the limits thereof.

Sandy wrote: With all due respect to David, whose work I like and
admire, I think this is not a particularly helpful way to address the
issue.  One simply *can't* put the "racial baggage" aside and hope to
have a cogent discussion of the Civil Rights Cases.  The point of
Harlan's dissent, which I continue to find completely persuasive, is
that  racial discrimination was indeed a "badge and incident" of a
system of race-structured chattel slavery that served as the basis of
the Southern labor system (and, of course, was endorsed and/or
collaborated with by many non-Southern whites as well) for some 250
years.  The Civil Rights Act of 1875 represented the last gasp of
Reconstructionist Republicanism to try to do something to overcome this
legacy.

I would also counsel David to read Strauder v. West Va., which is, I
think, the most illuminating of all cases interpreting the meaning of
the 14th amendment, and its somewhat cryptic comments about the
Amendment extending to "Celtic Irishman" and the like.  Had there been a
pervasive history of discrimination against Italian-Americans or
Scottish-Americans--I suspect one could in fact show the former in some
localities, though I'm doubtful about the latter--then, indeed, it would
be legitimate for Congress to intervene in an effort to assure their
equal treatment.