1866 Civil Rights Act A descriptive point & some words about the elephant in the room.
michael curtis
curtism at bellsouth.net
Fri Jun 8 15:33:19 PDT 2007
Yes, Justice Harlan made a number of Eugene's arguments in Jones--though
Eugene has added more & strong ones. I don't disparage anyone who raises
these issues as an academic matter. I raise them in class. What I am
discussing here has not been discussed directly, I think, though I can only
read a small sample. It is just the elephant in the room. So I am curious
as to what people think of the elephant.
The Warren Court was part of a larger national movement to dismantle the
racial caste system--and indeed the court before had taken steps in that
direction--e.g. Shelley v. Kramer. And generally to advance equality--e.g.
in the criminal justice system--Gideon and the right to those criminal
defendant too poor to purchase a transcript to have one supplied, etc. As
a matter of constitutional law at least some--perhaps much-- of this is
still controversial. Ed Messe and Raoul Berger and George Will all took the
position that requiring states to obey the Bill of Rights was unjustified by
the proper way of reading the Constitution. Justice Thomas and Scalia have
suggested that the right of the poor convicted of a crime to be furnished a
transcript so they can appeal should be revisited and overruled. The Warren
court decision, they tell us, would shock the framers.
As a matter of statutory construction--if one should be guided by the
probable intent of the drafters in 1866--the court's reading of the 1866 act
was probably beyond what they had in mind. Recall that nearly 100 years
later the voters of California--with as I recall the support of Ronald
Reagan--had passed a voter initiative to repeal the state's law banning
racial discrimination in the sale of real estate. Recall that Barry
Goldwater (who was advised by two brilliant lawyers--Robert Bork and William
Rehnquist) took the position that the civil rights act of 1964 and the
Voting Rights Act of 1965 were unconstitutional. So, one can ask, is it
likely that people in 1866 were so much farther advanced in commitment to
racial equality as opposed to the unfettered right to dispose of property?
In the 1960s (by the time of LBJ) all the branches were moving pretty much
in the same direction. And they made some mistakes. By to my old fashioned
view, these were times of great progress--nationalization of the Bill of
Rights, dismantling the racial caste system, giving black people back the
right to vote in the South. Though some of the issues have changed and many
who opposed the acts of 1964 and 1965 (eg Robert Byrd) now fully accept
them, we are seeing the emergence of a court and justices with a very
different view of the role of the Court from that which motivated the Warren
Court. The Ledbetter Title VII equal pay case may be an example of reading
a statute in quite a different way from the way the Warren Court approach
statutes advancing e.g. racial equality. Though I am no Title VII expert,
the Court's reading seems hardly compelled--especially since it is contrary
to the way most lower courts read the act. And to me quite unjust--though
contrary to Warren's view the emerging expressed view seems to be that what
the judges may see as just is not part of the job description. Still I
suspect what we really see is different views of what is just.
To me some of what is going on in this long reaction against Warren Court
values is quite shocking. E.g. the Court's decision, written by Scalia,
that soldiers who are fed LSD without their knowledge or consent as part of
a govt experiment to find out what it will do to them have no claim to
damages. Since the case was dismissed we must assume the allegations of the
complaint are true and this drug experiment ruined Master Sergeant Stanley's
life. It is shocking to me that the Justice Department would uphold the Ga.
Voter Id law--requiring purchase of voter ids to vote. But perhaps it is
not really shocking in light of the history recited above. Perhaps it is
just to be expected. The decision striking down the poll tax for state
elections was cited with approval by the majority in Bush v. Gore--but I
guess these views were for that day and train only. I suppose many of the
decisions advancing racial equality--e.g Loving--can be found wrong as a
matter of original understanding or intent. But why would any humane person
want to re-open them. I feel the same way about Lawrence--contrary to the
latest Monica--this one in the Justice Dept. screening civil service lawyers
for the "right" political views--why would any humane person want to return
letting states prosecute consenting adults for the way they make love in
private? Why not move on? I know, I know. There are sincere people who
think that jailing adults for the way they make love is what we should be up
to. Or the more nuanced view--if Texas or NC want to do it, they should be
allowed to because nothing in 1866-68 suggests a specific rejection of such
"crime against nature" laws. I grew up in the segregated South. There
were lots of sincere people opposed to integration and certainly to racial
intermarriage. Why would any humane person want to strip the poor of the
right to have their convictions reviewed--after the Court had decided the
matter? One answer is that it is all just about the law as a sort of
bloodless mechanical instrument. If the law lets the govt experiment on
soldiers by feeding them drugs that destroy their lives who are we to raise
constitutional questions. Since the new Court does not like the Bivins
doctrine, it holds that a prisoner in a "private federal prison" can recover
under it against the judgment proof employee but not against the
corporation--was it a medical care case?
What it looks like to me is that we have a more authoritarian approach to
individual rights and a reaction against equality. Nor is it just about
"the democratic process." Certainly not the national democratic process.
See the cases finding preemption of state laws on the slimmest of pretexts.
Once again, I think it is fine as an academic matter to raise all the
questions about the Court's construction of the 1866 Act & some of them are
powerful questions. Or Loving for that matter. I raise them in class. But
having grown up in the South in the 1950s and having watched NC prosecuting
a married couple for the way they made love in the 1970s, wanting to go back
to disguised poll taxes and other means of keeping blacks from voting or to
put the police back in the bedroom just strikes me as so sad. Again this is
not a criticism of discussing the issues. I think they should be discussed.
But in the end, for me, and I know that will not be a universally popular
view on the list, the desire some, like the latest Monica, have (and I don't
attribute it to anyone on this list, but because I don't know your views & I
would not want people to assume mine from the fact that I raise the issues
in class) to roll back and restrict protections of liberty and equality, is
very sad--but having its effect. Sometimes in Congress; sometimes in the
courts. Sometimes it is how courts read the constitution; sometimes it is
how they read statutes. But the readings seem (on both sides) often, but
not always, to move together.
Albion Tourgee, Plessy's lawyer, writing in the 1890s, said that the Supreme
Court had been a consistent opponent of liberty and equal right. If you
want to be really appalled sometime, read the voting rights cases from the
1890s dealing with disfranchisement in Alabama and elsewhere--including some
by Holmes. If Tourgee is right perhaps the long reaction against the values
of the Warren Court is just an effort to get the Court back into its
traditional role--the one it often--but not always-- filled before the
1930s. Tourgee overstated his case I think, but it is not hard to see why.
Michael Curtis
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, June 08, 2007 2:50 PM
Subject: RE: 1866 Civil Rights Act
> But the text is (at most, for the private contracts view) ambiguous.
> Even today, "right to X" often just means right to be free from
> government (or possibly private violent) restraint. For instance, we
> enjoy the right to marry, but it doesn't mean that we can sue people for
> refusing to become our spouses -- it just means the government can't bar
> us from marrying, and (possibly) others can't violently prevent us from
> marrying.
>
> The context makes it still clearer. The text provides that every
> citizen "shall have the same right, in every State and Territory in the
> United States, to make and enforce contracts, to sue, be parties, and
> give evidence, to inherit, purchase, lease, sell, hold, and convey real
> and personal property and to full and equal benefit of all laws and
> proceedings for the security of person and property, as is enjoyed by
> white citizens, and shall be subject to like punishment, pains, and
> penalties, and to none other, any law, statute, ordinance, regulation,
> or custom, to the contrary notwithstanding." Consider a parallel clause
> to the right to make and enforce contracts -- the right to inherit real
> and personal property. Would you say that "language of the statute
> itself" provides that testators may not discriminate in their wills
> based on race (for instance, between their black and white servants, or
> their black and white relatives by blood or marriage)? Or only that the
> law may not so discriminate (and perhaps that private parties may not
> violently interfere with the implementation of wills based on the
> legatee's or devisee's race)?
>
> More broadly, let's look at the other rights mentions: The right to
> sue is a right against the government. The right to be parties is the
> same. The right to give evidence is the same; surely it wouldn't
> violate the law for a party to discriminate based on race in the choice
> of which witnesses it would call to give evidence. The right to inherit
> real and personal property, as I argue above, is the same. The right to
> full and equal benefit of all laws and proceedings for the security is
> the same. The right to be subject to like punishments, pains, and
> penalties is the same.
>
> The only ones that are even potentailly ambiguous are the right to
> make and enforce contracts, and the rights to purchase, lease, sell,
> hold, and convey property (but not the right to inherit property). In
> light of (1) the surrounding phrases, (2) the legal context, in which
> people had long been broadly free to choose whom to hire, whom to work
> for, whom to sell to, whom to buy from, and so on, (3) the apparent lack
> of evidence of any cases or legislative statements that suggest that the
> Civil Rights Act of 1866 would displace this longstanding legal context,
> and (4) the extraordinary breadth that the Act would have as applied to
> private contracting decisions -- affecting, for instance, every
> citizen's choice of domestic servant, partner in a small business, shop
> at which he would buy things, and more, isn't the Act quite clearly
> properly understood as *not* covering private contracting decisions?
> The drafters of the Act were surely interested in protecting the freed
> slaves, but is there any real evidence that their interest would extend
> to this stunningly (by 1866 standards) broad intrusion onto private
> choice? Have I missed some important data here?
>
> Eugene
>
>
>
> ________________________________
>
> From: Zietlow, Rebecca E. [mailto:RZietlo at UTNet.UToledo.Edu]
> Sent: Friday, June 08, 2007 11:06 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: 1866 Civil Rights Act
>
>
> Eugene,
>
> The strongest evidence is the language of the statute itself,
> which provides that any person shall have the right to make and enforce
> contracts, and the benefit of all laws and proceedings for the security
> of the person and his property, and provides a remedy for any custom
> depriving a person of this right.
>
> Your original question was whether I had evidence that the
> Framers intended the Act to address private action. I agree that the
> evidence is much stronger for the theory that Steven Siegel suggested
> earlier this week, that it would apply to private individuals that
> interfered with two parties who were willing to enter into a contract.
> I think it is clear that the Framers intended it to reach at least that
> type of private action. When they wanted to limit a statute to state
> action, they did that, as with Section 1983 of the later Enforcement
> Act, which only applied to deprivations of rights "under color of . .
> law."
>
> As to requiring unwilling individuals to enter into contracts
> without discriminating on the basis of race, I return to my point that
> in late 1865 and early 1866, a vast majority of the members of the US
> Congress were preoccupied with freeing the slaves and trying to help
> them to start a life that would be different from their former life -
> the life of a free US citizen, with as many rights as a white citizen
> had. That included the right to be treated like a white person, that
> is, not to be discriminated against on the basis of race.
>
> Rebecca Zietlow
>
>
>
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