Category Archives: Law and Justice

Federal vs. State Rights

In our federal republic, established by our Constitution, government power, unless explicitly granted to federal authorities, is presumed to be under the exclusive control of the state governments. The Tenth Amendment, the last provision of the Bill of Rights, reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Under our federal system every state has its own marriage laws, criminal codes, family law, business laws, voting laws, gun laws, abortion laws, drug laws, capital punishment laws, etc.

The legal wrangling over States’ Rights vs. Federal enforcement of citizens’ rights has a long and sordid history in the US, during which federal enforcement of civil rights (guaranteed in the post-Civil War Constitution) have often been denied to selected groups of citizens (usually “non-white” groups). This continuous effort by states to restrict the rights of certain citizens is rearing its hideous, often irrational head as I write these words. 60% of American state legislatures are currently ruled by Republicans, after a fifty year effort to gain control of state governments and the federal courts by conservative groups funded by billions in largely “dark money”.

Those who argue for inviolable States’ Rights can rest their argument firmly on the Tenth Amendment, although they had a much stronger argument for it before the Civil War. and the resulting constitutional amendments that were added to the U.S. Constitution. These changes to the constitution were intended to increase liberty and justice for all and create a federal guarantee of these new rights.

Four score and seven years after the founding of the United Sates an American civil war raged, following the secession of one third of the then-existing states, over the issue of States’ Rights, specifically, a state’s right to decide if a sizable percentage of its population would have only the same rights as cows, pigs, donkeys, chickens, hunting dogs and other chattels.

After that long, bloody war, slavery was definitively abolished throughout every state in the Union (except as punishment for those duly convicted of any of the new, targeted crimes, like the enhanced “anti-vagrancy” laws that affected mostly former slaves and returned them to unpaid bondage). Following the Civil War, Congress passed three amendments to establish in law what had been contested by the Confederacy in a hard fought war — that race is not grounds for enslavement or inferior treatment under law.

The thirteenth, fourteenth and fifteenth amendments outlawed slavery [1], guaranteed federal enforcement of due process of law and equal treatment under the law, and extended voting rights to men formerly enslaved. The devastated states of the former Confederacy were required to sign on to these amendments as a condition for re-entering the Union (and receiving federal funds to rebuild their shattered infrastructure.)

The federal government made sure to reserve its right to enforce the 14th Amendment, a right that explicitly superseded the power of any state on matters covered by the newly amended constitution — as required by the 10th Amendment. The last section of the 14th amendment explicitly states that Congress may make any laws necessary to enforce the guarantee of due process of law and equal rights to all Americans, regardless of what state they lived in.

One equality-enhancing innovation that flowed from the 14th Amendment was Congress’s creation of the Department of Justice in 1870, to enforce newly universal civil rights for all citizens, now constitutionally defined as anyone born in the USA. The 14th Amendment was ratified after president Andrew Johnson vetoed the Civil Rights Act of 1866, on the grounds of white supremacy.

The first post-war civil rights act was enforced only haltingly and was soon written out of law by the Supreme Court’s absurdly narrow interpretation of the 14th Amendment [2] and later rulings upholding segregation. The idea of civil rights for Blacks was a dead letter in many states for generations, until The Civil Rights Act of 1964 again made it possible for individuals to enforce those rights in federal court. The Civil Rights Act only became law after decades of organizing, activism and struggle against often violent racism at law, efforts that culminated in the Civil Rights Movement of the 1950s and 60s. Democratic president Lyndon Johnson knew that signing the Civil Rights Act would turn the white south solidly Republican, which it remains to this day. He hoped that the Voting Rights Act of 1965 would level the playing field in those states, by allowing Blacks to register and vote in large numbers.

There are many devilish details in how the Supreme Court, Congress and the States spun the 14th Amendment, and more than one civil rights act, into oblivion. One of the most infernal examples is how quickly and efficiently several judges on the Supreme Court wrote the protections of the 14th Amendment out of law, for individuals (corporate persons continued to make good use of it during the first Gilded Age and beyond) during its almost century long judicially-induced coma. In the years from 1873 to 1963 no citizen, outside of corporations, was able to vindicate their civil rights under the 14th Amendment. The amendment that was supposed to provide access to the federal courts for citizens denied basic civil rights by their state government took a century long nap and the doors of the federal courts were closed to any persons not corporate in nature.

These maneuvers by federal judges and federal and state legislators allowed many of the worst evils of slavery to persist virtually unchanged for a century of winked at white supremacist violence after the Peculiar Institution was legally abolished. The Ku Klux Klan Act, which after vigorous enforcement by the new DOJ actually shut down the Klan for a short time, was quickly abandoned in a political compromise over the close presidential election of 1876, Reconstruction officially ended and law enforcement was left solely to state and local officials in the former Confederacy. Then, a century of Klan rule in many places.

None of the Congressional shenanigans over the course of that unjust, murderous, openly racist century would have been possible without the Senate filibuster and the steady, impartial hand of the Supreme Court, deciding case after landmark case that enforced segregation and other forms of unequal treatment under the law as matters of States’ Rights.

The filibuster was regularly used by a racist minority to block any law that would allow federal oversight of a state’s discriminatory racial practices. The 14th Amendment, which is now recognized as applying the protections of the Bill of Rights to the citizens of every state against infringement by their state, gave the federal government jurisdiction over the enforcement of civil rights. Enforcement of civil rights for millions of our newest citizens was the primary mission of the Department of Justice, at least for its first few years of existence. (Compare, for example, the recent policies and actions of the DOJ under the racist Jeff Sessions and unapologetic, pugnacious right-wing provocateur Bill Barr — read that ten month old article on Barr’s treachery in light of the Chauvin conviction for murder and the Big Lie about the rigged, stolen 2020 election, yikes)

The facially non-racist mantra of the filibusterers is always bipartisanship and “States’ Rights,” an impartial, hallowed, constitutionally endorsed doctrine expressing an understandable preference for local sovereignty and freedom from a central government “bureaucracy”. States’ Rights, its inconstant advocates always insist (on certain issues — abortion, marijuana, gay marriage — the same people insist federal bans should prevail), has nothing whatsoever to do with race, however disgruntled angry Black, brown and anti-racist white citizens might otherwise feel about it.

At the troubled heart of the States’ Rights argument is the unspoken, eternal question of who, in each state, actually gets the right to have a say about those rights and who in the state will enjoy them. The phrase is one of those glittering generalities, used to justify all sorts of devilment, like “Freedom is on the March” (shock and awe, Iraq), “Manifest Destiny” (ethnic cleansing of indigenous people and free land to pioneers) and “Liberty and Justice for all” (play ball!)

States’ Rights is really an argument for keeping the power relations and status quo firmly in place. “Local Rule” is an argument against change of any kind, unless it is to criminalize political protest, further suppress voting, harshly punish the users of certain drugs, and their families, ensure that partisan officials can overrule election results they don’t like, as many GOP state legislatures are now doing.

States’ Rights, the right of a free people to local sovereignty, has also long been advanced by historical revisionists as the sole reason why the states of the former Confederacy seceded from the Union. The Civil War had NOTHING to do with slavery, y’all, in spite of what the Articles of Secession of each state may have said about the constitutional right to own and breed slaves free from federal government tyranny.

Senator Strom Thurman (racist, segregationist father of a black daughter) heroically filibustered for almost twenty-four hours to block the Civil Rights Act of 1957. More than twenty bills to make lynching a federal crime were killed by filibusters over the years, most recently less than a year ago by fucking Rand Paul. Racist obstructionists constantly blocked any bill that would have made racist practices — like unpunished racist terrorism or openly restrictive race-based voting laws finally eliminated by the Voting Rights Act of 1965 — federal crimes that could be enforced by the Department of Justice rather than by the otherwise sovereign and impartial states of Mississippi, Georgia, Florida, Louisiana, Alabama, South Dakota.

Americans do not know this history. Many barely recall the horrific videos of the bloody insurrectionist riot at the Capitol that took place only three months ago. Imagine if Mike Pence and Nancy Pelosi had actually been captured and executed, as the crowd that breached the Capitol announced its intention to do.

Wait…wasn’t that a peaceful and legal demonstration by patriots rightfully outraged at massive Democrat [sic] voter fraud that stole the election from Mr. Trump? Weren’t those loyal, peacefully assembling patriots set up to look violent, and make Trump look bad, by Black Lives Matter and anti-fa? If we allow a commission to investigate the so-called Trump riot, claim proponents of the stolen election, don’t we have to investigate Black Lives Matter and antifa and their raging riots last summer, claiming George Floyd and a handful of others had been “murdered” by police? Why do Blacks and anti-fascists always get off the hook for their terrorism? (One possibility, there is no evidence that either group engage in the kind of organized, deadly, terroristic violence we saw at the Capitol where police were attacked and 140 officers were seriously injured, along with $30,000,000 of damage to federal property. The vast majority of those arrested in connection to Barr/Trump’s militarized federal crackdown on both groups last summer had all charges against them dismissed, almost a year later).

I am interested in history, read history books and articles about history and law, as well as historian Heather Cox Richardson’s nightly newsletter, and I had little grasp of the legal underpinnings for a century of open racism at law until I went to law school and learned about the Constitution and Supreme Court precedents in detail.

Did you know, as I learned in first year “Con Law”, that virtually all of the early federal civil rights cases were brought under the “commerce clause” a few words in the Constitution that gives the federal government jurisdiction over interstate commerce? A segregated restaurant in Georgia that served potatoes shipped from Idaho? Interstate commerce, yo, here come the federales. As a public accommodation, post Brown v. Board, you’ve got to serve everybody, or you’re in violation of the commerce clause… chump.

All Americans know that slavery was abolished after the Civil War, the constitution was amended — but how did this ongoing shit — racist voting laws, unaccountable Klan lynching for a century of “Separate but Equal”, the huge wealth gap between whites and Blacks, disparate treatment under the law for whites and people of color, disproportionate, unpunished police violence — actually happen?

States’ Rights, my friends, and a federal government obstructed at every occasionally well-meaning turn by committed zealots, halted in its tracks from enforcing the plain intent of the framers of the 13th, 14th and 15th Amendments.

The only Framers talked about today, by conservative purists like the Federalist Society, following in Antonin Scalia’s “originalist” footsteps, are the original group, from 1789. You know, the founding fathers who wisely compromised on things like slavery and apportioning representation in the House on the white population plus 3/5 of the slave population and carved in stone that a well-regulated militia being necessary for the protection of a free state — no regulation of guns allowed! It’s like the Civil War never happened for them, or, if it did, the kerfuffle was a reasonable response by states to having their constitutional right to own other human beings as chattels ripped away from them, their genteel, Christian society torn apart.

You can find these same manipulative weasels making the same speeches today (yes, I heard you the other day on the steps of the Supreme Court, Lyin’ Ted, you “fat wolverine”), defending the rights of certain people (coincidentally always white) to be free from the tyranny of other people (oddly, always “non-white”), mindless, manipulated people who want to “replace” them, as the theory goes. Republicans like Cruz call for bipartisanship, and the sanctity of the filibuster, whenever they are in the minority, even as their colleagues make state laws to suppress the vote, reserve the party’s right to tally all votes, and criminalize protected peaceful assembly, while immunizing those who kill protesters with their cars, as the great state of Florida did just the other day.

The massive multi-racial largely peaceful protests after the murder of George Floyd, protests Bill Barr’s DOJ sent federal troops to violently put down (pursuant to Trump’s hastily promulgated executive order on defense of federal property), are held up as an example of “anarchy” and unreasonable and violent expressions of irrational rage.

Now that the murderer of George Floyd is convicted, as a result of the massive public demonstrations that led to his prosecution, states are getting busy curtailing the First Amendment rights of speech and assembly in their states as they remain uncompromising on the Second Amendment, which they claim does not allow any regulation of gun ownership whatsoever.

Cynical, power hungry politicians playing to their “base” will do whatever it takes to remain in power, no matter what the majority of their constituents might actually want them to do. They will spin everything in terms of liberty from tyranny, in the manner of Groucho Marx flummoxing his unpaid workers:

But there is also history, the record of things that actually took place, who said and did what, what event precipitated another, what the law was and how the Supreme Court ruled on it, which can explain a lot about why the modern day counterparts of the slaveholding class are basically the same impious, largely racist ilk who used Christ’s teachings to justify holding other Christians as farm animals.

[1]

With a very important, and profitable, loophole written into it, no doubt the result of a political compromise by the centrists of their day, insisted on by those who could benefit from it:

“except as a punishment for crime whereof the party shall have been duly convicted”

13th Amendment:

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.

see also, Thirteenth (excellent and highly recommended)–

[2]

The infamous Slaughterhouse cases put the 14th Amendment into a century long, judicially-induced coma. The only rights of federal citizenship the amendment protected, according to the unappealable majority on the Supreme Court in 1873, were the right to freely move from state to state, the right to use navigable interstate waterways and one equally crucial liberty I don’t recall at the moment. Everything else was left to the states, whatever the “intent of the framers” (most of whom were alive and outraged after the ruling was announced) might have been. Wikipedia blurb:

The Slaughter-House Cases, 83 U.S. 36, was a landmark U.S. Supreme Court decision that held that the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship.

This ruling was effectively reversed ninety years later when a federal court in the South allowed a lawsuit brought on 14th Amendment grounds, under the never-repealed Ku Klux Klan Act, to proceed. This allowed the federal government to prosecute the Klan murderers of civil rights workers Chaney, Schwerner and Goodman. Wikipedia:

The murder of the activists sparked national outrage and an extensive federal investigation, filed as Mississippi Burning (MIBURN), which later became the title of a 1988 film loosely based on the events. In 1967, after the state government refused to prosecute, the United States federal government charged eighteen individuals with civil rights violations. Seven were convicted and received relatively minor sentences for their actions. Outrage over the activists’ disappearances helped gain passage of the Civil Rights Act of 1964.[5]

Since 1967, tens of thousands of 14th Amendment cases, violations of the Civil Rights Act of 1964, have been litigated as many of us work to bend the moral arc of history toward justice.

The precedent set by the Chauvin murder conviction

The verdict yesterday, while welcome, and historic — police supervisors testified that an officer was out of control when he killed (we can now say murdered) a handcuffed prisoner — sets a limited precedent.

The writer of an op-ed in the Times today makes this horrific point:

Yet [in spite of an “avalanche” of damning evidence] right up until the reading of the verdict, much of the nation was on tenterhooks about the outcome of what ought to have been an open-and-shut case. This suspense over whether the reams of evidence would matter is itself a scandal. Only by wading through the facts as the jury saw them can you appreciate this.

source

The Chauvin precedent seems to be:

In a case where there is overwhelming multi-perspective video, witness and forensic evidence of the officer’s guilt, and his supervisors testify against him, and the defense has nothing but ridiculous, irrational, counterfactual stories aimed at producing reasonable doubt in at least one racist juror, and there is a massive movement on the streets in a country ready to explode from centuries of ongoing, unaddressed racism and police brutality with no accountability — sure, in that case, a jury of twelve will vote to convict that kind of murderous, very bad apple. 

It’s a rare and encouraging moment of accountability, yes, but the uniquely overwhelming, unambiguous, incontrovertible evidence in this particular police killing of a handcuffed “suspect” is something to keep in perspective (as I figure out how we point the Jewish space laser at certain rabid Qanon members of Congress, and at Tucker “Jews will not replace us” Carlson, who needs to be replaced, if not simply vaporized.)

Bear in mind that the original police report blandly reported that a suspect, after resisting arrest, appeared to have been suffering from a medical condition and was rushed to the hospital where he died. Darnella Frazier’s real-time videotape of the murder directly contradicted the official report — and went viral worldwide. But for the 17 year-old’s courageous action documenting the killing, the lying police report would have been the last word on Mr. Floyd’s death.

In another great moment for justice, the Department of Justice is investigating whether Chauvin violated George Floyd’s civil rights by slowly choking him to death [1]. It’s the kind of thing you read and think “what the fuck? the fucking law… grrrr…”

It reminds me of the infamous, little known, constitutionally pernicious Cruikshank case, which was brought by the brand new Department of Justice in 1873 after a white mob massacred more than a hundred Blacks in Colfax, Louisiana. The case was the first decisive death knell for the “equal protection under law” promised in the new Fourteenth Amendment. It was a long nail into the coffin of Reconstruction after the Civil War and a case that could be cited in support of any “states’ rights” argument.

The case was brought on violation of civil rights grounds against the mob that massed for a day of burning, shooting and slaughter, after an election that was going to put candidates voted for by Blacks into office, an election the mob claimed had been stolen. The mass killing, the indictment read, denied at least two named victims (one was named Tillman, as I recall) of their civil rights.

Cruikshank made its way up to the Supreme Court where the indictments against Cruikshank and his fellow pogromists were dismissed due what the majority found to be to the inartful [2] drafting of the original indictment by the Department of Justice. The case held that the US could not prosecute a federal criminal case against a conspiracy of private citizens to violate the civil rights of the dozens of people they butchered on Easter Sunday, 1873. That kind of prosecution was left exclusively up to the discretion of the individual states, in spite of whatever might be implied from the language of the Fourteenth Amendment or the laws passed to enforce it.

The case made abundantly clear that the 1870s Supreme Court had a very, very narrow view of the 14th Amendment, which had been ratified to provide rights the states denied on “states’ rights” grounds. States would be able to openly deny these civil rights for close to a century, largely due to the holding in Cruikshank, and its more famous sibling, the aptly named Slaughterhouse cases.

Here’s the plaque some fucking racists erected in Colfax, long after the events of that hellish Easter Sunday in 1873:

[1] Democracy Now reports:

The U.S. Justice Department has opened a civil investigation into whether the Minneapolis Police Department has engaged in a pattern or practice of unconstitutional or unlawful policing. Attorney General Merrick Garland announced the probe Wednesday, one day after former Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd.

Attorney General Merrick Garland: “Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis. … The investigation I am announcing today will assess whether the Minneapolis Police Department engages in a pattern or practice of using excessive force, including during protests.”

The probe is separate from a federal criminal investigation into whether Chauvin violated George Floyd’s civil rights.

source

[2]

This piece on the recent origins of the word “inartful” by the late William Safire is artfully done. He attributes it to Barack Obama, to whom he ironically tips his cap for another remark, which Safire gives us the ancient on-the-nose Latin analogue for.

The Harvard-trained senator’s best subtle play on Latin so far was his comment about problems with those checking out his potential vice-presidential choices: “I would have to hire a vetter to vet the vetters.” As lawyers know, this catchy noun-verb construction is bottomed on a phrase in the poet Juvenal’s sixth satire in the second century A.D. advising his friend Ursidius to remain a bachelor because eligible young women were no longer as chaste as in the old days and, as wives, tended to dally with those assigned to protect them: “Quis custodiet ipsos custodes?” is translated as “Who shall guard the guardians?”