From: utzoo!decvax!ucbvax!poli-sci Newsgroups: fa.poli-sci Title: Poli-Sci Digest V2 #143 Article-I.D.: ucbvax.7640 Posted: Sat Jun 12 14:44:21 1982 Received: Sun Jun 13 04:50:26 1982 >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) ---------------------------------------------------------------------- Date: 9 Jun 1982 0621-PDT From: Jim McGrathSubject: 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 ------------------------------ Date: 10 Jun 1982 0829-PDT From: Jim McGrath 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 ------------------------------ Date: 10 Jun 1982 1044-PDT From: Jim McGrath 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 ------------------------------ End of POLI-SCI Digest - 30 - -------