From: utzoo!decvax!harpo!npois!ucbvax!poli-sci Newsgroups: fa.poli-sci Title: Poli-Sci Digest V2 #144 Article-I.D.: ucbvax.7663 Posted: Mon Jun 14 22:46:09 1982 Received: Wed Jun 16 03:44:32 1982 >From JoSH@RUTGERS Mon Jun 14 22:40:18 1982 Poli-Sci Digest Tue 15 Jun 82 Volume 2 Number 144 Contents: Voting rights (2 msgs) Travel rights Ban the Bomb ---------------------------------------------------------------------- Date: 13 Jun 82 01:20:11 EDT (Sun) From: Steve BellovinSubject: Voting Rights Act Cc: CSD.MCGRATH at Su-Score You would make a better case for your objections if the practices and laws you cite weren't intended and used for the purpose of racial discrimination. There's an old story, about a black man who attempted to register to vote in Mississippi. The registrar asked him every con- ceivable question in an attempt to show that he was unfit to vote. Finally, all else having failed, the registrar asked him to read a Chinese newspaper. The man answered, "Well, I can't read the articles, but I understand the headline." Amazed, the registrar answered, "You do? What does it mean?" "It means that here's one Negro who's not going to be voting in this county." But since we seem to be in the business of quoting legalisms, I did some checking of my own. First, although the 14th Amendment does indeed provide for reducing a state's representation in Congress as a penalty for denial of franchise, the 15th Amendment (ratified about a year and a half later) simply states that the right of citizens to vote shall not be abridged on account of race, color, or previous condition of servitude, and that "the Congress shall have the power to enforce this article by appropriate legislation." The Supreme Court ruled (South Carolina vs. Katzenbach, 1966) that the Voting Rights Act of 1965 was a proper exercise of power under this amend- ment, not the 14th. I quote from the opinion: Two points emerge vividly from the voluminous legislative history of the Act... First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certaion parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced... in order to satisfy the clear commands of the Fifteenth Amendment.... Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form.... At the same time, alternate ests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, "good character" tests, and the requirement that registrants "understand" or "interpret" certain matter.... White applicants for registration have often been excused altogether from the literacy and understanding tests or have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers. (Footnote: A white applicant in Louisiana satisfied the registrar of his ability to interpret the state constitution by writing, "FRDUM FOOF SPETGH." A white applicant in Alabama who had never completed the first grade of school was enrolled after the registrar filled out the entire form for him.) Negroes, on the other hand, have typically been required to pass difficult versions of all of the tests, without any outside assistance and without the slightest error. (Footnote: In Panola County, Mississippi, the registrar required Negroes to interpret the provision of the state consitution known as the 'Chickasaw School Fund.' In Forrest Country, Mississippi, the registrar rejected six Negroes with baccalaureate degrees, three of who were also Masters of Arts.) The good morals requirement is so vague and subjective that it has constituted an open invitation to abuse at the hands of voting officials. Negroes obliged to obtain vouchers from registered voters have found it virtually impossible to comply in areas where almost no Negroes are on the rolls. The opinion goes on to document the failure of previous, less sweeping remedies, and to explain in detail why the remedies prescribed in the Act are constitutional. I can summarize for a computer-oriented audience by saying that Congress and the courts look at surrounding context, not just the letter of the law. The question of discrimination by motels and restaurants is more interesting, because of both the legal questions and the moral aspects. The legal basis for the Civil Rights Act of 1964's provisions is the "interstate commerce" clause of the Constitution. The Supreme Court's ruling (Heart of Atlanta Motel v. United States) held that it was indeed a question of interstate commerce, as documented by the legislative history of the Act: This testimony [before Congress] included the fact that our people have become increasingly mobile with millions of all races traveling from State to State; that Negores in particular have been the subject of discrimination in transient accomodations, having to travel great distances to secure the same; that often they have been unable to obtain accomodations and have had to call upon friends to put them up overnight, ...; and that these conditions had become so acute as to require the listing of available loding for Negroes in a special guidebook which was itself "dramatic testimony of the difficulties" Negroes encounter in travel.... We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. [In this particular case, the facts were not disputed by the plaintiff, including a finding that 75% of its registered guests were from out of state.] Thus, the question before the Court was not whether Congress had any jurisdiction, but whether the law itself was a reasonable exercise of legislative authority. They concluded that such a law was indeed reasonable, and justified by ample precedent: There is nothing novel about such legislation. Thirty-two States now have it on their books either by statute or executive order and many cities provide such regulation. Some of these Acts go back four-score years. It has been repeatedly held by this Court that such laws do not violate the Due Process Clause of the Fourteenth Amendment. Perhaps the first such holding was in the *Civil Rights Cases* [1883], themselves, where Mr. Justice Bradley for the Court inferentially found that innkeepers, "by the laws of all of the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accomodation to all unobjectionable persons who in good faith apply for them." [In the Civil Rights Cases of 1883, the Court struck down similar laws passed during Reconstruction, holding that Congress lacked sufficient jurisdiction. In this case, the Court noted that the previous law was not couched in terms of regulation of commerce but was in fact much broader, that the Court had explicitly denied considering the law in those terms, and that in any event there was far more travel and commerce in 1966 than in 1883.] We find no merit in the remainder of appellant's contentions, including that "involuntary servitude." As we have seen, 32 States prohibit racial discrimination in public accomodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. I could go on; there are many more Supreme Court decisions I could cite or quote on the subject. But the real issue isn't legal, it's moral: regardless of whether or not the Federal government does have the power, should it? I'll discuss that further in another note; this one is long enough already, but I wanted to dispose of the legalistic red herring that's been tossed out. --Steve Bellovin ------------------------------ Date: 13 Jun 1982 1233-EDT From: PDL at MIT-XX (P. David Lebling) Subject: Re: Poli-Sci Digest V2 #143 Those who want more background on the history of the Fourteenth Amendment should read Raoul Berger's "Government By Judiciary: The Transformation of the Fourteenth Amendment." This is the same Raoul Berger who wrote "Executive Privilege." Dave ------------------------------ Date: 13 Jun 1982 1254-EDT From: Bill Hofmann Subject: Visas, right to travel While, as JPM notes, the US has no constitutional obligation to admit anyone, there are other sources of obligation, specifically the Helsinki Accords and the UN Declaration of Human Rights. These obligations were what caused the State Department to reconsider the granting of visas, especially to those specifically invited by the UN. The government's actions in restricting the rights of travel and of entry should be opposed for several reasons. First and foremost is the uneven application of these rules. Specifically, leftists of all varieties (including those certainly not alligned with the USSR) often find it hard to gain entry, while (and I use the term exactly) fascists often have no problem gaining entry, even if denied visas. Roberto d'Aubuisson (aka Blowtorch Bobby), one of those until recently denied visas, still managed to make an appearance at a seminar sponsored by the American Enterprise Institute, while noted Marxist (Trotskist) historian Ernest Mandel has been barred from the country, along with subversives like Gabriel Garcia Marquez. For a good backround on the whole issue, the Times had a remarkably unbiased report a week or so ago (discussing the backround of the McCarran Act). The US government has also, as you are doubtless aware, reserved as its right the right to deny passport to those it dislikes, and to restrict travel abroad where it pleases. The most recent case of this was the retraction of Philip Agee's passport. Vance pulled it after Agee suggested that a good way to resolve the hostage crisis would be to give the Iranians all documents relating to US interference in Iran. Agee lost his appeal of this retraction last summer, and is now living in West Germany. The dissenting opinion in the Supreme Court case is particularly worth reading. -Bill ------------------------------ Date: 13 Jun 1982 20:11:20-PDT From: decvax!minow at Berkeley Subject: Having a wonderful time, wish you were here. Yesterday, I joined a fairly large number of people in New York for the June 12 rally. I'm still a bit amazed at the numbers -- there were over 60 busses from the Boston area (plus a train), and people were marching in New York throughout the day. In fact, one in every 250 Americans was at the demonstration. (No arrests, smiling policemen everywhere.) (Hmm, how many other poli-sci readers were there? I know of at least one other. Any more? Maybe we need a tee-shirt?) Today's poli-sci commented on the validity of denying visas to foreign demonstrators. Perhaps this is legal, but is it a good idea? By denying visas to a few hundred Australians and Japanese, we look silly to the rest of the world. What are we afraid of? Martin Minow decvax!minow @ berkeley ------------------------------ End of POLI-SCI Digest - 30 - -------